Monday, September 28, 2009

Original Sinner

Cross-posted from TakiMag.

There isn’t much to say in response to Kevin Gutzman’s latest.  He’s had two chances already but still hasn’t addressed my core contentions, namely (to repeat myself)
(i) “The Constitution as written contains barely any restrictions on the power of the Federal government to intrude upon the states” and

(ii) Gutzman can’t satisfactorily “answer the question: why should we follow the Constitution anyway?” 
At least now he helpfully explains why he won’t rebut me.First, to my argument that the Fourteenth Amendment gives Congress virtually unlimited powers, Gutzman replies:
I do not waste my time scouting out all of the idiosyncratic justifications for unlimited power, from Caligula to the present. They have contributed nothing to civilization.
In other words, Gutzman refuses even to consider whether the Constitution might not be the libertarian document that he takes it to be. The Constitution simply must limit the powers of the Federal government! Yet somehow, I know not how, Gutzman tirelessly flays his opponents for allegedly subordinating the Constitution to their desired policy outcomes. Ye gad, if there’s anyone in this world who can’t separate his ideology from his interpretation of the Constitution, it’s Kevin Gutzman. Not only, by his own admission, does he reject any reading of the Constitution that doesn’t support his libertarianism, but he writes that I don’t care about “limitations on government authority,” even though I argued only that the Constitution doesn’t impose those limitations, and even though I pledged allegiance to the cause of limited government in both my posts. Gutzman evidently can’t even imagine how anyone could read the Constitution except as support for his ideology. Gutzman is more Brennanist that William Brennan himself.

Anyway, I confess that I don’t find Gutzman’s excuse for not addressing my arguments very credible. Nobody is asking Gutzman to do any “scouting”—all my arguments are sketched out in my posts for him to read. As for wasting Gutzman’s time, he has plenty of it to abuse me at length for having graduated from law school. Could he not have devoted just of bit of the time he has spent attacking me to responding to my actual arguments? Either Gutzman has a rather unscholarly set of priorities or he’s just being disingenuous.

Second, Gutzman continues to insist that his approach to the Constitution follows from the principle of self-government. I noted before that Lysander Spooner has decisively refuted this view. Gutzman now proudly reminds us that knows all about Lysander Spooner already. I’m glad—but will Gutzman do his readers the favor of explaining why he disagrees with Spooner? By no means! Instead, he proclaims, “I have little to say about constitutions to someone [i.e., me] who [doesn’t care] about the consent of the governed.” In other words, Gutzman won’t address any arguments coming from me, even when they’re not even mine, and even when they were devised by a thinker (Spooner) whom Gutzman admires. The name Bramwell has so defiled the sacred purity of Gutzman’s libertarianism as to render him speechless with pious indignation. Perhaps when I’m not around to blaspheme, Gutzman will regain his tongue and explain how he proposes to reconcile his belief in written constitutions with his faith in self-government. I only regret that I won’t be there to witness his performance. I suspect it would be quite entertaining.

Lastly, I have argued that Gutzman’s method of interpreting the Constitution—which favors subjective expectations over the actual text—is flawed. I offered, oh, six or seven objections to intentionalism, each one of which may be taken as fatal. Gutzman’s response is, frankly, puerile: He addresses one objection—namely, that it’s unclear whose intentions we should consult—announces that he’s not going to bother with the others (yet refers his readers to no authority on the subject whatsoever), and then exults at having vindicated intentionalism. I’m sorry, but that just won’t do. 

For one thing, Gutzman doesn’t even successfully answer the “whose intentions?” objection.In his view, the only intentions to be consulted are those of the people’s representatives at the state conventions that ratified the Constitution. This argument is presumably based on the actual text of the Constitution, which specifies in Article VII how the Constitution was to be adopted. If it’s the text that controls whose intentions count, however, then why in all other circumstances must intentions control the text? Gutzman’s appeal to the text to define the role of intention is incoherent. Moreover, as I noted already, the Preamble states that the Constitution was adopted by “We the People.” That bit of text suggests we should consult not just the intentions of the people’s representatives at the state ratification conventions but the intentions of the people themselves—namely, all individuals around at the time of ratification, if not all individuals who have ever been governed by the Constitution. 

Even if Gutzman can successfully define the class of relevant intentions, he still has to run a gauntlet of five or six more objections to intentionalism. Indeed, the “whose intentions?” objection is probably the easiest one to dispose of. Somehow I don’t think Gutzman is up to solving the problem of, say, generality or aggregation. No other intentionalist, to my knowledge, ever has.

The rest of Gutzman’s reply is peppered with the same sort of shameless misrepresentations that, sadly, one comes to expect of his writings. I did not say, for example, that “the Fourteenth Amendment has no meaning”; I actually said that “the meaning of the Fourteenth Amendment is clear.” I did not say that arguments for unlimited power are “worth inventing”; I said, “I am not a devotee of unlimited government.” I did not offer “Brennan-Tribe-Douglas-like excuses for rejecting originalism”; I explained that only by rejecting Gutzman’s intentionalism can one “save originalism” and “fix permanently the proper interpretation of the Constitution.” Gutzman has made no effort to understand my arguments.  Instead, he has flatly denied, again and again, that I ever wrote what I wrote—even though it’s all there in the record for any reader to consult.

Gutzman doesn’t want to argue with me. Very well. I regret having wasted his time, and mine.

Addendum 1: Gutzman disagrees with my reading of McCulloch. His reading (which he supports not with citations to Marshall’s opinion but to secondary authorities) is a common one, though one I believe to be mistaken. I am happy to discuss the subject further sometime, preferably with an interlocutor willing to argue in good faith. In the meantime, the proper reading of McColluch is only incidental to my argument that Congress’s powers under the Fourteenth Amendment are virtually unlimited.

Addendum 2: Gutzman now admits that the Supreme Court has not always been guided by the slogan, “evolving standards of decency.” He is unimpressed that I would point this out, since it is so obvious. If it is so obvious, however, then he should have qualified his earlier claims about Supreme Court decision-making. Even now, he says that Supreme Court justices have in many cases “been guided only by their whims.” Only by their whims? One has to point out the obvious, when arguing with a fanatic. Otherwise, he’ll continue to state positions that are laughably overblown.

Wednesday, September 16, 2009

Best of Intentions

Cross-posted from Takimag.

I’m sorry, but Kevin Gutzman is still totally wrong about the Constitution. His response to my article sends up a flurry of errors and misconceptions but leaves my critique of his work not only undisturbed but unaddressed. I am glad to set him straight point by point.

1. “[P]roducts of law school miseducation like Bramwell,” are “subjected to reading in ‘constitutional law,’ the body of case law purporting to implement the U.S. Constitution,” which results in “indoctrination” in the “bipartisan consensus that the Federal Government is really an unbounded national government.” I’ll leave aside whether teaching an actual body of law amounts to “indoctrination.”  Contrary to Gutzman, the interpretations I offered of the Constitution are not only inconsistent but positively at loggerheads with contemporary constitutional law. If anything, they should have elicited a big fat “WTF?” from anyone who actually knows any con law. For one thing, I argue that Congress’s enforcement powers under the Fourteenth Amendment are virtually unlimited, despite that the Supreme Court has held that they are virtually non-existent.  See City of Boerne v. Flores (1997).  (I probably have the most extreme view of the original meaning of the Enforcement Clause of the Fourteenth Amendment of anyone in the United States.)

For another, I may be the only person ever to argue that the Thirteenth and Fourteenth Amendments ratified post facto John Marshall’s decision in McCulloch v. Maryland. Yes, dear Takimag reader: you were subjected to an argument so bizarre and outlandish that it has appeared only once before in print, and that was in an article by me for Critical Review. Nevertheless, Gutzman warns that I am regurgitating the same nonsense I learned in law school.  Fine, I’ll make him a bet: I will bet him $1,000 that in the span of, say, one year, Gutzman can’t find a single law school graduate in the United States who was taught in class my ultra-expansive theory of Congress’s powers under the Fourteenth Amendment and my theory of Enforcement Clauses / Necessary and Proper Clause interraction.  If Gutzman wants to take me up on this bet, he should let me know and we can work out the terms.

2. Supreme Court justices have “felt free to impose their own ever-evolving views of the ‘evolving standards of decency’ in a maturing society.” For the record, the phrase “evolving standards of decency” shows up in only one line of cases, namely, those interpreting the Eighth Amendment prohibition on cruel and unusual punishment. It appears, according to Westlaw, in a total of 59 Supreme Court opinions. How about the phrase “enumerated powers,” so beloved of libertarians, and which no more appears in the actual Constitution than “evolving standards of decency”? It shows up in 116 cases, including more than 60 since the New Deal revolution. That doesn’t prove that the Supreme Court has interpreted the Constitution as a libertarian document. It does show (however crudely) that constitutional law no more embodies pure Brennanism than it does libertarianism. Indignation at Supreme Court opinions is certainly called for at times.  But that doesn’t excuse exaggerating what those times are. “Evolving standards of decency” is not the touchstone of all Supreme Court decision-making.

3. Gutzman’s approach to the Constitution follows from the principle of “government by consent of the governed.” No, it does not. Lysander Spooner decisively refuted 140 years ago the idea that the people ever consented to the Constitution. First, nobody ever performed an act to manifest his consent. Only a few dozen drafters ended up actually signing the Constitution, and that was only to submit an official version to the states. Nobody else in America was so much as asked whether he even agreed with it. Instead, the Constitution was adopted in accordance with its own self-executing ratification provisions—which is another way of saying that, if you didn’t like it, then tough. Although members of State ratification conventions did formally ratify the Constitution, they acted not in their individual capacities but only as representatives. (And of course, many of those representatives voted against the Constitution.) As for everyone else, though some did have the privilege of voting for their representatives, exercising a right to vote is by no means equivalent to approving an election’s outcome, much less consenting to what one’s representatives do in office. Finally, of course, women, non-whites and the unpropertied were excluded from the franchise altogether. Rather than say that the people consented to the Constitution in 1789, it would be more accurate to say that a handful of men foisted it on everyone else. 

Even if the people did somehow consent to the Constitution in 1789, later generations have never had the chance to do so. They are subjected to the Constitution as arbitrarily as citizens of other nations are subjected to hereditary monarchy. These days, probably only a minority of Americans would consent to the Constitution as written. Only a tiny fraction, needless to say, would consent to the Constitution as interpreted by Gutzman. Yet Gutzman appeals to consent of the governed! Verily, if it’s the consent of the governed that Gutzman wants, the last thing he should be championing is the United States Constitution. 

Anyway, who cares whether the people consent to their government? The people could consent to a viciously unjust government or one inimical to their well-being. Far more important than whether the people are governed by consent is whether they are governed well. Any other position must assume a nihilistic denial of any such thing as a public good. By appealing to the principle of self-government as it were self-evidently laudable, Gutzman has unwittingly revealed that he has no compelling justification for following the Constitution.

4. McCulloch v. Maryland “held ... that the Necessary and Proper Clause gave the Congress very wide legislative powers.” This misstates the holding of McCulloch.  Read Marshall’s opinion carefully:  Marshall didn’t think the Necessary and Proper Clause was needed to establish that Congress could create a bank. Rather, he argued that Congress had this power by implication under the Tax and Spending Clause. The Necessary and Proper Clause merely underscores that Congress has powers implied from its specifically enumerated powers. The Necessary and Proper Clause, for Marshall, does no additional work.

5. Bramwell “cit[es] McCulloch v. Maryland on behalf of the idea that the Constitution created a Congress with virtually unlimited powers.” No, I do not. I cite no case for this proposition but rather the actual text of the Constitution—specifically, the Enforcement Clause of the Fourteenth Amendment. McCulloch is only relevant insofar as it provides evidence of the original public meaning of this Enforcement Clause. In addition, I argue that, whether or not McCulloch was correctly decided, by 1865 it had been ratified as correct. I don’t see how I could have been more clear on this point. I wrote, “For better or worse, the dispute of the original meaning of [the Necessary and Proper Clause] is now largely irrelevant,” for “the actual Constitution incorporates [McCulloch‘s understanding of Congress’s implied powers].” 

In response, Gutzman treats me to a lengthy history lesson on how Marshall got it all wrong back in 1819. Whether Marshall did so or not, however, is irrelevant to my argument.  Just for the fun of it, I’ll even concede Gutzman’s attack on John Marshall and take it further: McCulloch is the worst decision in the history of the Supreme Court. Nevertheless, McCulloch, by operation by subsequent Amendments, still represents the correct interpretation today of Congress’s implied powers and the Necessary and Proper Clause.

6. The distinction between the meaning of a provision and the intentions of those who wrote and ratified it “is a common distinction among lawyers who want to concede unlimited authority to some instrumentality, agency or branch of government.” No, it is not. The disctinction was introduced by originalists in order to save originalism and thereby help to defend the view that the Constitution limits the powers of the Federal government. For example, Antonin Scalia:
It is the law that governs, not the intent of the lawgiver. ... Men may intend what they will, but it is only the laws that they enact which bind us.
Robert Bork:
[W]hat the ratifiers understood themselves to be enacting must be taken to be what the public at that time would have understood those words to mean. It is important to be clear about this. The search is not for subjective intention.
Contemporary libertarian originalists such as Gary Lawson and Randy Barnett likewise endorse the disctinction. To be sure, Gutzman, as I have noticed, is rather promiscuous in leveling the charge of lack of fidelity to the Constitution, so perhaps he would denounce Scalia, Bork, Lawson, and Barnett as all big government Constitution-haters. Nevertheless, the direction in which Lawson and Barnett and, to a large extent, Scalia hope to lead constitutional law is towards limiting the powers of the Federal government. I happen to disagree with them that original meaning saves the cause of limited government. Still, it has undeniably become the favored constitutional theory among libertarians today. Gutzman overlooks this history, or simply doesn’t know it.

7. “A provision’s meaning,” say the advocates of the distinction between meaning and intention, “changes from to time as the society ... becomes more enlightened.” Wrong. Libertarian judges and scholars have favored meaning over intention precisely because they hope to fix permanently the proper interpretation of the Constitution. Thus, Scalia writes in the very same essay in which he denounces original intent: “If the Courts are free to write the Constitution anew, they will, by God, write it the way the majority wants ... This is, of course, the end of the Bill of Rights, whose meaning will be commited to the very body it was meant to protect against: the majority.” Randy Barnett, another critic of intentionalism, argues that the Constitution can only have legitimacy if its meaning is “locked in.” The distinction was invented, in short, to bind judges to an unmalleable Constitution.

8. Thomas Jefferson wrote that the federal Constitution should be enforced “according to the true sense in which it was adopted by the States, that in which it was advocated by its friends.” Indeed, Jefferson wrote this, but it by no means implies that we should interpretation the Constitution according to anyone’s original intent.  Obeying Jefferson’s injunction, let us see how the Constitution’s “friends” actually thought the Constitution should be interpreted. 

Start with Alexander Hamilton:
The Secretary of State [i.e., Thomas Jefferson] will not deny, that, whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction. [A]rguments drawn from extrinsic circumstances, regarding the intention of the [constitutional] convention, must be rejected.
In other words, says Hamilton, pointing to an area of common agreement with Jefferson, one must not consult the particular expectations of the men who wrote the Constitution. I realize Gutzman probably thinks Hamilton is an evil statist. Still, as the author of many of the Federalist Papers, he surely ranks as a “friend” of the Constitution. Or, if Gutzman won’t take Hamilton, here is James Madison, as his remarks are recorded in the Annals of Congress:
When the members of the floor, who were members of the General Convention ... were called on in a former debate for the sense of that body for the Constitutional question [at issue], it was a matter of some surprise [for Madison]. ... [A]fter all [in Madison’s view] whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.
Or Madison again:
As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Insitutions, & as a source parhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.
In other words, the two greatest of the Framers—Hamilton and Madison—did not believe that, in interpreting the Constitution, one should look into the intention of those who wrote it. On the contrary, they specifically admonished us not to do so. Gutzman is thus trapped in a contradiction: he says we should follow the original intent of the Framers, but the original intent of the framers was that their various intents should be ignored! This point was made back in 1985 by H. Jefferson Powell. Perhaps Powell is just another evil law professor out to traduce the Constitution. Nevertheless, it is suprising that Gutzman did not anticipate this well-known objection.

9. “A provision’s meaning” should be equated “with the intention of its enactors.” Frankly, I can’t tell what exactly Gutzman thinks the relationship between a provision’s meaning and the intentions of those who wrote it really is. “The equation,” as Gutzman puts it “of a provision’s meaning with the intentions of its enactors” is harmless if all that “equation” implies is that one must look no further than the text of a provision to ascertain the intentions of those who enacted it. Plainly, however, Gutzman wants intentions to do independent work. He argues, for example, that John Marshall’s interpretation of Congress’s implied powers is mistaken because many states would never have ratified the Constitution had their representatives expected that Congress’s powers would be so liberally construed. In short, Gutzman thinks subjective expectations can determine the meaning of the Constitution’s actual words. 

For reasons Madison, Hamilton and possibly even Jefferson anticipated, Gutzman’s appeal to subjective expectations is unpersuasive. The problems with intentionalism are several:
—It is unclear whose expectations one should consult. We can start with the handful of men who actually drafted the Constitution’s provisions. But the final draft was approved by a convention of about 50 delegates, so perhaps their intentions should be consulted as well. Yet the Constitution was actually ratified by state conventions, so perhaps it is the intentions of the representatives at these conventions that control. But why stop there? The Constitution was ratified in the name of “We the People,” so perhaps the intentions of all Americans should be examined as well. All these problems arise before we even get to the men and women who amended the Constitution since.

—There is no way to properly weight the various intentions that must be consulted. Inevitably, in investigating the intentions of the men who wrote and ratified the Constitution, scholars focus on those whose thoughts survive in written form today. But why should the intentions of those egotistical enough to record their thoughts for posterity be privileged over the more reticent or less prolific—not to mention those not lucky enough to have had all their papers preserved? The thoughts of most men are swallowed up and lost in the wide womb of uncreated night. Evidently, their intentions don’t count.

—Intentions are subjective states that cannot actually be reconstructed. We have in reality have no access to the subjective expectations of any of the men who wrote or ratified the Constitution. We can only rescontruct those expectations based on written texts that they have left behind. So, in practice, the appeal to intentions amounts to the view that the Constitution is only one text among many that have quasi-constitutional status. Why texts that have never even been ratified should prevail over the actual Constitution, however, is a mystery.

—Intentions conflict. One ratifier may have expected an expansive national government; another may have expected a limited one. Given conflicting intentions, there is no way in principle to aggregate the intentions of all.

—Intentions come in all different kinds. Intentions may come as hopes or fears, not to mention fantasies or paranoias. They have widely varying intensities. The Federalist Papers, for example, were written to assuage the fears of those skeptical of the Constitution. Should the fears of the skeptics prevail? Why not instead the hopes of the nationalists? The variety of relevant individual intentions cannot be reduced to a single, uniform group “intention.”

—Intentions may be general or specific. The ratifiers of the Constitution doubtless had a specific intent, say, to end trade wars between the States and to establish an effective national court system. But they also had a much more general intent, say, to establish a lasting and just government. The more general the intent, the more liberally one may read the Constitution. At the highest level of generality, the appeal to intentions becomes a warrant to disregard the text of the Constitution entirely. Yet it is unclear why the most general intentions should not prevail over the more specific ones.
For these reasons, few originalists today defend original intent. Yet Gutzman still wants to cast incense at Madison’s shrine to divine the proper interpretation of the Constitution. His professed methodology is deeply flawed.
10. Contra Bramwell’s characterization, Gutzman in fact denies that “nobody who actually reads the Constitution could possibly conclude” that the Constitution creates an expansive Federal government. I am grateful to be corrected on this point, but I am also flabbergasted by Gutzman’s apparent concession that the Constitution’s meaning isn’t clear. If the Constitution isn’t reasonably clear, after all, then there can little hope for fixing its proper interpretation—except, perhaps, by consulting not the Constitution but historians such as Gutzman. If Gutzman wants to defend originalism, he should have bit the bullet and argued, as I suggested, that nobody who reads the Constitution fairly could interpret it as granting extensive powers to the Federal government. In characterizing his views as I did, I was actually trying to help him out.

11. Bramwell believes that “judges should feel free to ‘interpret’ the Constitution in any way they like.” Nothing in my article suggested I hold any such view. I argued only that, contrary to many libertarian originalists, the Constitution gives Congress vast powers traditionally reserved to the States. Gutzman in response blasts away at lawless judges. But I didn’t even address how judges should interpret the Constitution. Gutzman is inveighing against someone, clearly. That someone just isn’t me.

Now, I should say that I regret causing potential misunderstanding by asking, rhetorically of the Fourteenth Amendment’s rights provisions, “what does that mean?” In fact, I think it is quite clear how a reasonably observer in 1868 would have understood “privileges or immunities” and “equal protection of the laws”: he would have understood them to refer to fundamental individual rights. 

At the same time, though the meaning of the Fourteenth Amendment is clear, its application is not. The Fourteenth Amendment’s rights provisions are notoriously “open textured;” that is, they are wholly unspecific as to what exactly those “privileges or immunities” and “equal protection” rights are. When the Fourteenth’s Amendment open-ended rights provisions are combined with its McCulloch-inspired Enforcement Clause, the results are explosive—provided, that is, that one takes the original meaning of the Constitution seriously. Whereas previously, the people retained their rights against the Federal government, under the Fourteenth Amendment they give Congress unlimited authority to protect those rights however Congress deems fit. The Fourteenth Amendment turned the constitutional design of the Founding generation upside down.

12. In expounding his views on the Constitution, Bramwell “joins a slew of Straussians, neocons, liberals and other devotees of unlimited government.” I have no idea what Gutzman means by “Straussians” and “neocons.” Evidently, I am supposed to be frightened of these bogeymen. I confess, however, that I am not deeply immersed enough in the literature unmasking the untrammeled malevolence of neocons and Straussians to tell whether I should be frightened or not. Tell me what a “Straussian” or “neocon” argument is, and I will say whether I agree with it. Until then, Gutzman’s name calling doesn’t affect the truth of my arguments.

In any case, I am not a devotee of unlimited government. Gutzman apparently missed the point of my article, which was to prove that the Constitution is not the friend of limited government that many libertarians suppose. As I concluded the article, “I wish Gutzman were right that the Constitution vindicated limited government.” But Gutzman is not right. Libertarian constitutional scholars succomb to selection bias: they remember only the battles they have unfairly lost (such as over the scope of the Commerce Clause) but not the battles they have unfairly won (such as over the scope of Congress’s Fourteenth Amendment enforcement powers). If libertarians ever want to come up with an ideologically congenial constitutional theory, they’ll need to stop thumping their originalist bibles.

Monday, August 31, 2009

Original Sins

Cross-posted from Takimag.

I’m sorry, but Kevin Gutzman is totally wrong about the Constitution. In his books and many online articles, Gutzman argues that the Constitution grants the Federal government a handful of limited powers, but leaves the states free to govern as they like. Hence, almost the entire apparatus of the Federal government is unconstitutional. What’s more, says Gutzman, with no little vehemence, nobody who actually reads the Constitution could possibly conclude otherwise.

Wrong. It is Gutzman who hasn’t read the Constitution. Or, to be precise, like the various liberal and conservative scholars he excoriates, Gutzman skips over the parts of the Constitution that he doesn’t like. The Constitution as written contains barely any restrictions on the power of the Federal government to intrude upon the states. Gutzman just prefers not to notice.

Even if Gutzman were right about the Constitution, his theory of constitutional interpretation would still be utterly inadequate. Gutzman makes sport of contemporary scholars who derive their understanding of the Constitution not from the text from but the premise that Brown v. Board of Education was correctly decided.  But Gutzman too bases his constitutional theory on his ideological commitments. Suppose Gutzman were right about the original meaning of the Constitution in every detail. That still wouldn’t answer the question: why should we follow the Constitution anyway? Quite a lot of people find Gutzman’s Constitution abhorrent. They may fairly ask, why, if the Constitution (in their eyes) is so flawed, they should bother to restore its authority.

It won’t do to say we should follow the Constitution just because it’s the Constitution. Indeed, the more damning Gutzman’s critique of contemporary constitutional law, the more ridiculous the Constitution appears. Gutzman argues that the Constitution has never been followed. The Framers designed no mechanisms of constitutional defense; they bequeathed to posterity no more than a “parchment” barrier. It is one thing to champion a Constitution that might someday be followed, quite another to champion a Constitution that has no no chance ever in any circumstances of being followed. Gutzman has, if anything, built a strong case that the Constitution is a vain document that should simply be discarded.

To convince anyone otherwise, Gutzman has to offer some normative defense of the Constitution as written.  He has to say something such as: “Self-government depends on following the Constitution as actually ratified by the people” or “The Constitution as enacted embodies the paramount value of liberty.” As soon as Gutzman articulates his theory as to why we should follow the Constitution, however, it becomes clear that he too picks his values first and his Constitutional theory second. In that respect, he’s no better than a Brown v. Board-privileging liberal.  His wine, too, is made of grapes.

In any case, when it’s convenient for him, Gutzman doesn’t even argue that we should follow the Constitution.  He interprets the Fourteenth Amendment, for example, not in light of its meaning but in light of the alleged intentions of those who wrote and ratified it.  But the intentions behind an enactment are irrelevant to its meaning.  Take a recipe for almond torte.  The person who wrote it may have intended that the recipe produce macaroons. But that doesn’t change the meaning of the actual recipe. Likewise, the intentions of those who ratified the Fourteenth Amendment—even if they can be discerned, and even if by some miracle they do not conflict—do not determine the meaning of the Fourteenth Amendment. When it comes to the Fourteenth Amendment, Gutzman suddenly loses his interest in what the Constitution actually says.

As for what the Constitution does say—regardless of whether it should be followed or not—Gutzman labors to prove that constitutional law today has drifted quite far from what the Framers envisioned.  I couldn’t agree more.  The trouble is, the meaning of the Constitution for the Framers is of little more than antiquarian interest. The Constitution has been amended 27 times since the adoption of the Bill of Rights. It doesn’t matter what a particular provision meant in 1789.  The Constitution of 1789 is not the Constitution we have today.

Take the Necessary and Proper Clause. Gutzman fulminates against Chief Justice John Marshall for refusing in McCulloch v. Maryland  to interpret the Necessary and Proper Clause as limiting the implied powers of Congress.  For better or worse, the dispute over the original meaning of that clause is now largely irrelevant. Eight times since McCulloch, the people have seen fit to define the scope of a new Congressional power. Each time, they have used language right out of Marshall’s famous opinion: “The Congress shall have the power to enforce this article by appropriate legislation.” Compare Marshall: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional” [emphasis added]. These eight new “enforcement clauses,” beginning with that of the Thirteenth Amendment, were understood to echo Marshall’s words. Gutzman doesn’t like McCulloch’s understanding of Congress’s implied powers, but the actual Constitution incorporates it.

Next take Gutzman’s prized concept of limited and enumerated powers. It’s true that the Constitution used to define Congress’s powers narrowly. That all changed, however, with the Fourteenth Amendment. The Fourteenth Amendment reads, in part:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now, what does that all mean?  Nobody knows!  These words are almost totally opaque.  Clearly the states are prohibited from doing… something.  From doing things that are … well, things that are fundamentally bad.  That’s about as close to the meaning of the Fourteenth Amendment as one can reasonably hope to get.

In its the very opacity, the Fourteenth Amendment sweeps aside the system of limited and enumerated powers created by the Founders.  For the Fourteenth Amendment also gives Congress the power to enforce its provisions by “appropriate legislation.” In other words, Congress gets to stop the states from doing anything that’s fundamentally bad. What’s fundamentally bad? Well, that can only be for Congress to decide, since it’s the only branch of government expressly empowered to enforce the Amendment. Thus, Congress might prohibit the States from discriminating on the basis of race. It might also prevent the States from denying access to free health care, or refusing to advance the progress of minority groups by affirmative action. So long as Congress deems a policy to be a fundamental right, it can force the States to uphold it.

In the words of Justice Miller, author of the widely loathed majority opinion in the Slaughter-House Cases (1873), the Fourteenth Amendment, read literally, would
transfer the security and protection of all the civil rights which we have mentioned [i.e., all fundamental rights] from the States to the Federal government. . . .  [The literal Fourteenth Amendment] would constitute this court a perpetual censor upon the legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights ... .
Recoiling from the revolutionary consequences of the Fourteenth Amendment, Miller strove, heroically but ultimately unsuccessfully, to strangle the Fourteenth Amendment in its cradle. Gutzman reviles the “incorporation doctrine” whereby provisions of the Bill of Rights are enforced against the States. He should count himself lucky. In its original meaning, the Fourteenth Amendment enforces all fundamental rights against the states, whether embodied in the Bill of Rights or not. The Amendment gives Congress and the Federal government virtually unfettered power to rule over the States.

I wish it weren’t so. I wish Gutzman were right that the Constitution vindicated limited government. But it doesn’t. If we want to actually acquire limited government, a good first step is to be honest about this.

Friday, June 26, 2009

Not to Praise WFB but to Bury Him

Cross-posted from FrumForum.

As you may have heard, the novelist Christopher Buckley and the popular historian Richard Brookhiser have each written a book about Buckley’s father, the late William F. Buckley Jr. Neither is just about WFB. Buckley’s Losing Mum and Pup tells what it was like – from battling grief to ghostwriting eulogies – to bury both parents in one year. Brookhiser’sRight Time, Right Place gives his perspective on a career’s worth of political history, from Nixon’s downfall to Bush v. Gore. (WFB appears in Right Time, Right Place only a handful of times.) Still, most readers will be looking for the gossip, and for what those closest to WFB really thought of him. The answers in both cases are surprising.

The most scandalous bits in Losing Mum and Pup are already so notorious that by the time you read it they’ve lost their shock. Among them: To empty his bladder, WFB would open the car door and urinate on the highway without so much as telling his driver to slow down. (I can’t figure out how exactly WFB managed the feat without soiling himself or the limo, though I trust Buckley could tell us.) Told that his 11-year-old son might be dying, WFB flew back through eight cities en route to the hospital bedside. (He arrived with an armful of exotic gifts.) Ten minutes into Christopher’s Yale commencement, WFB walked out, leaving Christopher to wander campus in search of his family before settling for a hamburger at the neighborhood dive.

You might think – and many do that these revelations dishonor WFB’s memory. If anything, they do the opposite. As Buckley says, WFB was a “great man.” He founded a movement, edited a magazine (which he also founded), wrote 56 books and 5,600 columns, and hosted an acclaimed television program. He also sailed the Atlantic and the Pacific, played the harpsichord with the Phoenix Symphony Orchestra, delivered thousands of lectures, and kept up perhaps the most prolific correspondence in American history. Plainly this was not a man centered in the sphere of common duties. I would have been more surprised to learn that WFB actually made a point of finding a men’s room before taking a leak.

His own son is as much in awe of WFB as his legion fans. The public only saw him on TV. Christopher saw him suffocating and collapsing, yet still able to dictate prose of the kind that the rest of us will never match in perfect health. He saw WFB sail into a Nor’easter as if it were a favonian breeze. He saw WFB complete one book in 12 afternoons. Again and again, Buckley returns to the theme: his father was a great man.

Losing Mum and Pup solves one important but neglected mystery of WFB’s greatness, namely, his spending habits. The cash burn in the Buckley household far exceeded what others in their station can afford. They had a Park Avenue maisonette, a waterfront house in Connecticut and a succession of sailing yachts, not to mention limousines, a swimming pool that WFB had installed in his basement and a Bosendorfer grand piano. They kept a full time staff of five, including a chauffeur and a butler, chartered yachts in Bermuda and rented a castle in Switzerland every winter. They entertained the good and the great virtually every night. I meet not a few of the superrich in my day job. The Buckleys lived better than nearly all of them.

They also indulged in unparalleled generosity. Once the Buckleys invited my wife and me to dinner; midway through dessert, the Yale Whiffenpoofs arrived to sing us goodnight. That was perhaps a $10,000 evening, spent to please two young friends WFB had only just met. The abundance in the Buckley household seemed so natural that one rarely stopped to wonder where it even came from. His friends just took it for granted that, like the Count of Monte Cristo, WFB was sitting on an inexhaustible fortune.

Yet he didn’t actually have a fortune to exhaust. WFB’s father, a swashbuckling oil man, lost as many millions as he won. What wealth he died with would have been divided among WFB’s nine siblings, leaving only a modest provision for each. WFB’s wife Patricia Taylor hailed from a prosperous British Columbia family. Presumably, some of the Taylor fortune was held for her benefit (she did not manage it herself: like many a grand dame, she couldn’t put two sums together). Still, the Buckleys spent far more than any trust fund would pay out. WFB in any case would never have put himself at anyone’s financial mercy, the Taylors included.

In Losing Mum and Pup, Buckley confirms in a footnote that his parents were not “rich rich.” His mother had a trust fund, but it was “not nearly sufficient to sustain their lifestyle.” In the 1950s, WFB lost all his inheritance in the stock market. Christopher Buckley himself does not live in the Lucullan fashion of his parents. He makes his own living; his father, he says, did too. Gary Wills in a recent essay in The Atlantic agrees. Put together the twice-weekly column, the annual books, the television program and the lectures and maybe you do come up with enough to pay for all that the Buckleys enjoyed. Contrary to legend, WFB was a self-made man.

Nonetheless, the Buckleys were as insouciant about money as French aristocrats idling in the gardens of Versailles. Most professional writers, living from check to check, think about money a lot. WFB didn’t. I suspect that he saved almost nothing — at least, I can’t imagine WFB squirreling away a few dimes in the hope of funding a quiet retirement (or, for that matter, passing on some wealth to his descendants). That WFB never saved explains why one never heard the buzz of accountants, lawyers and advisors who normally swarm the super-rich. Great men don’t worry about making ends meet.

He faced danger with the same nonchalance. In his “literary autobiography,” Miles Gone By, WFB recounts two particularly appalling incidents. Then a freshman at Yale, WFB and some chums purchased a small airplane. After a total of 1 and 1/2 hours of flying lessons, he volunteered to fly a friend to Boston. It was no problem getting there, for the friend had flown 20,000 hours in WWII. Too impatient to stick around Beantown, WFB flew back solo, only to miscalculate the hours of daylight left. He followed the New London railroad tracks through the darkness before at last spotting a runway and landing. A few months after this harrowing flight, WFB pulled an all-nighter, finished his last exams, went up (this time with a license), and fell asleep in the cockpit. Miraculously, he woke up in time to land. To the things that fright ordinary souls — death, injury, running out of money — WFB paid no heed at all.

He paid almost as little heed to the future of National Review and the conservative movement he founded. As Right Time, Right Place reveals after thirty years of secrecy, when Brookhiser was 23, WFB promised to hand over ownership of National Review to him. The story should alarm all who care about National Review and what it stands for – that is to say, all who at any time have identified with the conservative movement. National Review meant too much to too many people to have been pledged to a twenty-three-year old, no matter how talented. Brookhiser says that WFB liked the Big Gesture. I think he liked the Big Gesture more than what the Big Gesture signifies. WFB delighted in his god-like powers to mark out another as a man of destiny.

On a much smaller scale, he did something like that to me. We were living in Denver when he called. He asked whether I would take part in National Review’s upcoming “novation” – a word I’d encountered in contracts class in law school but had already forgotten. Not having the foggiest what he meant, but also not wishing to displease the great man, I complaisantly agreed to whatever he was asking. The conversation took all of a minute. A month later, a friend called to congratulate me: The New York Times was reporting that WFB had transferred his National Review shares to a 5-man board of trustees. I was the only one under 50.

Why was I chosen? WFB claimed that he wanted someone who was “extremely young and extremely talented.” In fact, WFB knew nothing about me (apart from my youth). I had had dinner with him a handful of times and had been invited on a couple of his Friday evening sails. He never asked about my convictions or ambitions, nor did he ever clue me in on what he expected of me. His estimate of my talents was based on no more than a few thousand words. Once I had to correct a Times reporter doing a follow up story. No, I told him, I had not made Harvard Law Review – as, I suppose, WFB had simply assumed. His decision to appoint me as Trustee made no sense. But it was a Big Gesture — big enough, at least, to catch the attention of the Times.

WFB’s caprice changed Brookhiser’s life forever. He declined an offer from Yale Law School to work full time at National Review. He performed well; as all agree, Brookhiser would have made a superb editor-in-chief. A decade later, the inevitable: WFB wrote Brookhiser that “It is by now plain to me that you are not suited to serve as editor-in-chief of NR after my retirement.” WFB gave reasons, but, as Brookhiser writes, the real one was that he never became the dazzling phenom that WFB himself had been. Who else could have? Brookhiser writes ruefully that WFB might as well have written: ”It is now plain to me that the evidence of your name is indicative of a larger truth: you are, in fact, not me.”

Not surprisingly, Brookhiser does not subscribe to Christopher Buckley’s Great Man theory of WFB. He writes with great restraint — learned perhaps from many years of repressed bitterness and disappointment — that only occasionally slips. At one point, he compares WFB to Klingsor, the villain of Wagner’s Parsifal, then tells us that according to a psychoanalyst who taught Brookhiser’s wife, “a narcissist no more considers the feelings of other people when he makes demands on them than we ask a lightbulb if it wants to be turned on.” The argument goes from WFB to Wagner to Brookhiser’s wife to Brookhiser’s wife’s mentor before it is clear that, by property of transitivity, Brookhiser is calling the beloved William F. Buckley Jr. a narcissist.

Where Christopher Buckley sees greatness, Brookhiser sees egotism. He calls the suggestion made one evening that WFB run for president “one more roof tile in the tornado of flattery that whirled around him.” (To be precise, Brookhiser says that it seemed that way at the time, thus leaving the reader to judge for himself whether the suggestion was flattery in fact.) On the next page, Brookhiser confesses that he too felt entitled to praise, even if undeserved. “Bill wasn’t the only victim of flattery,” he concludes. Complete that line of reasoning, and it’s clear that Brookhiser doesn’t think that WFB deserved all the praise he has received.

How overrated does Brookhiser think WFB was? He gives hints. Comparing WFB to Reagan, Brookhiser writes that “in certain circumstances, [WFB] spoke as well.” Others would have written that Reagan and WFB spoke differently but both very well – extraordinarily well. Brookhiser reports that he only read the Blackford Oakes novels to quiet WFB’s importuning. Eventually, Brookhiser gave his opinion that “the characters never came alive, the writing was functional, the sex scenes were ludicrous. The third and fourth novels seemed no good at all.” Critics have routinely panned WFB’s fiction, though even the harshest call Saving the Queen a success. Brookhiser is asking – or, to be precise, was asking a bit much from a series of spy thrillers. If he finds anything remarkable in WFB reinventing himself mid-career as a best-selling spy novelist, Brookhiser does not say so.

Even when acknowledging WFB’s achievements, Brookhiser’s praise stops short. He says that Cruising Speed – WFB’s first book retelling a week of his life – had “the freshness of pulling off a new trick, and Bill’s own freshness in the media-god life he lived.” “Media-god” would today suggest vanity, showiness, lack of substance. Elsewhere he describes WFB’s prose as having “tingle.” “The effect at its best was a lively rattle, like someone playing a harpsichord or a washboard.” In other words, WFB’s writing compares favorably to an instrument best known in popular culture from the Adams Family TV show. At its best.

Brookhiser most admires WFB for founding the conservative movement. By the end, however, he is puzzling over WFB’s late ambivalence about the Iraq War. Charitably enough, Brookhiser rejects first racism (WFB had no faith in dark-skinned peoples), then venality (WFB sought money or praise) and finally callousness (WFB had no sympathy for the oppressed) as the reason. Finally, he concludes that WFB had simply grown weary. WFB had lost his stomach for the good fight.

Even for WFB’s critics, this is an implausible judgment. Not once does Brookhiser consider that he and WFB had an honest disagreement. Brookhiser writes matter-of-factly that in Iraq, “we took the war [initiated by 9/11] to our enemies.” But Brookhiser’s view that invading Iraq was an appropriate response to 9/11 is not self-evident. (For one thing, it was not Saddam Hussein who attacked us on 9/11.) Rather, it rests on a variety of assumptions (for example, that lack of democracy causes of Muslim terrorism) that should at least be articulated, if not defended. WFB did not have to be weary to reject some of these assumptions, only skeptical. (Though there is truth in what Brookhiser says: Towards the end, WFB probably was too weary to take a stand on Iraq clear enough to provoke the chirping of more zealous friends.) He deserves better than to have his views reduced to some underlying character flaw.

In the end, it seems that Brookhiser wrote Right Time, Right Place not to praise WFB but to bury him. WFB blessed Brookhiser at a young age with something like divine favor. The Lord giveth and the Lord taketh away. Brookhiser has made his peace with a man whose whims changed lives forever, his included. Like Job, he prospered, suffered, and prospered again. It would be impious to ask for more.

Oddly, Brookhiser never finishes the story. WFB offered him ownership of National Review in 1978. Twenty-six years later, WFB turned his shares over to an independent board of trustees. Today, however, NR is effectively owned by the management. I can’t say that my time on NR’s board of trustees deepened my faith in director control. Directors of a corporation seldom have an incentive to collect enough information to challenge what the officers tell them. Even if one director does bother to understand a corporation’s affairs, to make a difference he still needs the support of his colleagues, who themselves won’t know enough to reach an informed judgment. The problem is compounded in a non-stock corporation such as the one WFB created to control National Review. At least in a for-profit corporation, directors must ultimately respond to shareholders, who demand a return on investment. The trustees of NR, by contrast, are responsible to nobody. Lacking any incentive to second-guess management, they are no match for the insiders.

NR’s board was in fact completely neutered less than two years after WFB’s handover, when the one insider on the Board contrived to stack it with two more. The plan was announced as fait accompli before my dissent or anyone else’s could even be registered. For better or worse, Rich Lowry’s leadership is unlikely ever to come under any serious question. The package of rights and powers that he enjoys as Trustee and Editor-in-Chief gives him as much control as WFB ever enjoyed. In thirty or forty years, he can even handpick his own successor.

I wish I could say I resigned on principle. In a sense I did: I wanted to resign but didn’t have an excuse. The excuse came in a letter from WFB a few weeks later. ”I know busy people,” he wrote, “but you must be in the company of the busiest” — quite a remark coming from the author of Cruising Speed and Overdrive. Noting my unexcused absences from NR events, he said he regretted appointing me as Trustee and asked me to resign. He wasn’t right on the specifics, but he was right in general. Some basked in WFB’s attention; I fled from it like Jonah into the mouth of the whale. On the whole, I didn’t really enjoy his company. Plainly, he liked me, but I found his constant boredom embarrassing. I lacked the skill in speech to relieve it.

I resigned promptly. In my last letter to WFB, I reproached him for showering me with honors that I could not live up to, and myself for accepting them. Not that I always had a choice. ”Fifteen hundred conservative grandees,” I reminded him, truthfully, “once heard you compare my writing to that of Seneca.” Seneca! Inevitably, I wrote, I had “swelled the rout / of lads who wore their honor out.” I thanked him for his kindnesses, but told him that “each one hung on me like lead.” “Your final kindness,” I concluded, “is to let these burdens drop.”

So ended my brief and ignominious career as a Buckley protege. Unlike Brookhiser’s, my life went on as before — though under a cloud of failure of regret. Brookhiser, who found fame as a popular biographer of the American Founders, eventually dispelled his. William F. Buckley Jr. gave and took away. One could not ask for more.

Friday, May 29, 2009

Who is "Spengler?"

Cross-posted from Taki's Magazine.

Has Franz Rosenzweig’s time come? Beats me. Let’s start with: who the hell was Franz Rosenzweig? Like many, I would never have heard of him had it not been for sometime Takimag contributor David P. Goldman, who for the past decade has been putting events in world-historic perspective under the pseudonym “Spengler” at the Asia Times Online. (Goldman recently revealed some interesting autobiography here.)  With impressive, almost demoralizing confidence, Spenger/Goldman asserts a number scandalous theses, all of which he claims to have learned or derived from the early 20th century philosopher and theologian Rosenzweig:

1. Anti-semitism exists because the gentiles naturally envy the Jews’ exemption from the rule that all tribes eventually die out.

2. Christianity prevailed because its message of universal salvation assuaged the gentiles’ fear of tribal extinction.

3. Christianity needs the Jews, because they stand as a living proof of divine favor; without that proof, Christianity could not offer the gentiles any hope of immortality.

4. When Christianity recedes, the gentiles’ Jew-hatred returns, often with calamitous results (e.g., the holocaust).

5. Europe is literally dying—that is, failing to go through the trouble of reproducing—because both ethnocentricism and Christianity have been discredited, which leaves Eurpeans nothing but to accept the ultimate fate of all gentile tribes (i.e., extinction).

6. Islam is a cover for pure racism and barbarism, against which Judaism and Christianity are necessarily at war.

The Spenglerian theses are on one level wonderfully explanatory. Europaean population decline, American pre-eminence, Muslim fanaticism, the “new” Anti-Semitism, even the current economic depression all fit into Goldman’s theories. As his pseudonym suggests, Goldman accounts for pretty much every past development as well, from the triumph of Christianity to the rise of nationalism. The whole performance can be quite diverting.

At the same, it’s hard not to suspect that Goldman is peddling moonshine. I herd my wife and kids to church on Sundays, sit through the sermon and find an excuse to skip coffee hour all because .... I am rebelling against the “incurable necrosis” of the Anglo-Saxons?

So far in my introspections I haven’t uncovered evidence of that. Nor do I know many Christians of whom it can plausibly be said that deep in their souls they are seeking some simulacrum of Jewish survival. Further, while individuals fear death in a fairly straightforward way, only in a metaphorical sense does fear of death grip whole peoples.

Goldman’s willingness to consider tribal loyalty as a factor in history is refreshing, but fear of tribal extinction is an unlikely candidate as the hidden spring of all human action. As for population decline, birthrates aren’t just declining in post-Christian Europe. What reason do the Koreans have for accepting tribal extinction as their fate? Finally, Spengler ignores the more straightforward explanations of Muslim fanaticism, such as that they don’t like seeing their lands occupied by Westerners. (In fairness, Goldman has recently urged a sensible policy of leaving the Muslims alone.)

Back to Rosenzweig.  As noted, Goldman does not claim originality, but says that most of his ideas come from Rosenzweig, to whom Spengler pays frequent, almost fulsome tribute. Just how profound was this man Rosenzweig?  I picked up a copy of his magnum opus, The Star of Redemption, to find out (or, to be precise, the William Hallo translation that Goldman recommends).

It is immediately apparent that Rosenzweig does not practice what in some English-speaking philosophy departments is churlishly called “real” philosophy. Briefly, there are two contrasting styles of doing philosophy. One—called “analytic” and generally carried out in English—values precision, clarity, and valid argument. The other—called “continental” and generally carried out in French or German—values charisma and oracular utterance.  Not surprisingly, continental philosophy thrives mostly in English departments, while analytic philosophy self-consciously subordinates itself to the physical sciences and mathematics. The distinction doesn’t fit all cases—Nietzsche, a continental, could be quite rigorous, while Wittgenstein, an analytic, was notoriously obscure—but still holds up fairly well.  If you seek understanding, you read the analytics; if it’s prophecy you’re looking for, you read the continentals.

Rosenzweig’s style is continental. Consider the following passage:
Two paths lead from the Nought to the Aught—or, more precisely from the Nought to what is not Nought, for we seek no Aught—the path of affirmation and the path of negation.  The affirmation is the affirmation of the demonstrandum, the non-Nought; the negation is the negation of the given, the Nought...Like every affirmation through negation, affirmation of the non-Nought points to something infinite; negation of the Nought, like every negation, points to something limited, finite, definite.  Accordingly, we behold the Aught in twofold guise and in twofold relationships to the Nought.
Or this one, which goes so far as to introduce mathematical symbols:
Let us attempt to capture [divine freedom] in a symbol...We must place divine freedom, as original Nay, on the left side of the future equation. It is, moreover, a Nay which, as original subject, reaches beyond itself with unlimited power—albeit, as we must repeatedly emphasize, beyond itself only with God.  Thus its symbol will have to be formed on the pattern ‘y=.’  And finally, although this freedom is finite in its ever-renewed uniqueness, it is infinite in its continue novelty. Nothing can precede it for nothing exists beside it. It is ever unique but never a unicum. Therefore the symbol for this freedom turns out to be ‘A=.’
Und so weiter. Can we now derive proofs about divine freedom using the symbol “A=”? Writing of this kind has its defenders, who take pains to extract something from it that is both intelligible and reasonably compelling.  Myself, I plead philistine indifference.

I consider only the political implications of Star, of which, surprisingly enough, I find very few. The Spenglerian theses in particular seem more like a creative gloss or “misprision” of Rosenzweig than an accurate restatement of his views.  For all Spengler’s obeisance to Rosenzweig, I suspect that Goldman came up with his stuff on his own.

To be sure, one can certainly find the passages that inspired Spengler. The Jews, writes Rosenzweig, are the “eternal people” or simply “the people,” as opposed to other peoples, who are only “the peoples of the earth.” Jews are a pure “blood community,” while other peoples “sink their roots into the night of earth,” that is, they identify with a specific piece of land, from which they must ultimately be expelled.  The gentile peoples, unlike the “eternal people,” believe that “death [that is, tribal death, as opposed to individual death], even although it be at a very distant juncture, must come eventually.” Gentiles have suffered “inner conflict ever since Christianity with its super-national power came upon them.” The Christian church counterattacked “the pagan idea [surviving] in the form of memory,” but eventually Christian unity was “sundered at every point” by “pagan figures come back to life,” including in the form of “nations” and “states.” The gentiles’ various secular states, which “emerged as rebels” against the Church, created a “sham” sense of eternity.  To reestablish a unified Christianity, the church needs the Jews as an actual and not merely “idealized” promise of immortality. Jew-hatred for the Christian is then really self-hatred.

Isolating these passages—scattered across the last 150 pages—in this way gives a very misleading picture of Star. Unlike Spengler, Rosenzweig does not seem particularly interested in the rise and fall of peoples. Rosenzweig apparently wrote Star on postcards while serving in the German army in WWI. It shows, for the book consists of several hundred more-or-less independent meditations, each coming under a separate rubric (“Love,” “China,” “Miracle,” Shame, “Commandment and Freedom” “The Oecumene,” “The Grammar of Eros”) and each just a few hundred words each.  Rosenzweig finally arranged his meditations in three parts of three books each, so that the whole book resembles the overlapping triangles of the eponymous Star of David. About a dozen of Rosenzweig’s meditations could be turned into gripping underground-style pamphlet proving that all history consists of the rise and fall of tribes striving to match the survival of the Jews. That is essentially what Spengler has done in his columns.

But the pamphlet wouldn’t be Rosenzweig. Of the hundreds of meditations in Star, few have anything to do with geopolitics.  The range of topics is encyclopedic.  Here a history of how miracle reports were turned from a proof to an embarrassment for religion; here is a critique of the modernist Protestant theologian Friedrich Schleiermacher; here an analogy between art and revelation; here is a defense of Goethe’s claim to be the only Christian of his age. At the same time, the point of Star isn’t hard to discern: The world can’t be adequately comprehended à la Hegel in a single philosophical system; on the contrary, one needs revelation; specifically, Jews need Judaism and the gentiles need Christianity. Rather like Pascal’s Pensees or Wittgenstein’s Philosophical Investigations, the argument of Star emerges from the fragments.

In short, Rosenzweig wants to vindicate orthodox Jewish and Catholic religions against German idealistic philosophy. While Spengler broadly equates “paganism” with tribalism, but Rosenzweig’s understanding of “paganism” is even broader. In Star, Rosenzweig is apt to call “pagan” anything that threatens Christainity unity, including not just tribes and nations (Spengler’s hobbyhorses) but states, artists, and individualists. Spengler takes the meditations on the “peoples of the world” as more or less literal interpretations of history, but they are probably best understood as illustrations of how religion, says Rosenzweig, captures some things that Hegel can’t.

Spengler’s discussion of Rosenzweig’s distinction between “Petrine,” “Pauline” and “Johannine” Christianity similarly misses the point. Spengler takes these as literal references to Catholicism (the church of Peter), Protestantism (the church of Paul), and Orthodoxy (the church of John).  As Rosenzweig uses these terms, however, they have only rough temporal and geographic correspondences. They can refer to Catholic, Protestant and Orthodox or South, North and East, but also to works, faith and hope or Christianity conquering the world, struggling against disunity, and finally achieving redemption. The Petrine/Pauline/Johannine distinction doesn’t explain history but rather illustrates moments in the Christian life. As the title of the book might suggest, Rosenzweig is talking more about redemption than actual events.

In the end, even to the casual reader it is clear that Rosenzweig was not, as Spengler contends, the major thinker of the 20th century. In Star, he wrote an apology for religion directed almost exclusively at the philosophical school that (somewhat regrettably) he took to be dominant—Hegelianism. Rosenzweig certainly makes interesting reading, and Star is full of arresting passages, but one can just as certainly get by without him.

Wednesday, April 1, 2009

The FDA Does Diabetes

So far, patients can breathe a sigh of relief.

The U.S. Food and Drug Administration’s Endocrinologic and Metabolic Drugs Advisory Committee met today, and will continue its discussions tomorrow, on two important diabetes drugs which are under review at the FDA.

The first drug, reviewed today, was Bristol-Myers Squibb’s saxagliptin, an oral pill which treats diabetes in a similar way to Merck’s Januvia and Novartis’ Galvus. (Galvus has been in limbo at the FDA for years, for no discernible reason.) Tomorrow, the FDA panel will review Novo Nordisk’s Victoza, an injectable drug similar to Byetta (a marketed drug from Eli Lilly and Amylin Pharmaceuticals).

The FDA had been somewhat concerned about a slight increase in cardiovascular side effects of saxagliptin relative to placebo in Bristol’s late-stage clinical trials, but the panel voted 10-2 that the clinical data provided appropriate evidence of saxagliptin’s safety profile. The panel did recommend additional clinical trials for cardiovascular safety after the drug makes it to market, but such recommendations are not so easy to implement.

Tomorrow, on April 2, the panel takes up Novo’s Victoza (liraglutide). The FDA has raised concerns about major adverse cardiac events and thyroid tumors. Novo will probably have to do an additional post-marketing trial. We will have a more complete review of the Advisory Committee meeting at that time.

Investors in Amylin and Lilly cheered when the FDA’s briefing documents on liraglutide contained no questions regarding inflammation of the pancreas, a side effect associated with their drug Byetta.

More on this tomorrow…


I mean it.

For those who have checked back recently and not seen any postings, I'm sorry. Had a busy few days. My intent is to post at least one item daily to this website, if not multiple postings. One more is on its way...

Sunday, March 29, 2009

This Week in Wonkery

Your weekly guide to the wild world of healthcare policy research.

Joseph Antos of the American Enterprise Institute describes Obama's approach to healthcare as "a meal eaten in reverse order. We started with dessert, in the form of new subsidies for insurance. Whether we like it or not, we will have to eat our vegetables before the year is out."

John Calfee and Elizabeth DuPre of AEI complain about the anti-drug industry bent of The Lancet and The New England Journal of Medicine.

Newt Gingrich wants to create some new government programs to combat Alzheimer's Disease.

Darrell West and Edward Miller of the Brookings Institution have published a new book entitled Digital Medicine: Health Care in the Internet Era.

Alice Rivlin of Brookings is concerned that Obama won't raise taxes enough to pay for his healthcare plan.

Judy Feder and Harriet Komisar of the Center for American Progress urged the Senate to take "action to improve long-term care services and supports."

J.D. Foster of the Heritage Foundation reflects on how to make Medicare sustainable by means-testing benefits.

James Copland and Paul Howard of the Manhattan Institute think it's a good idea to tax pharmaceutical companies to cover tort liabilities in the wake of Wyeth v. Levine. (Whatever happened to tort reform?)

Uwe Reinhardt, the Princeton economist, explains the terminology behind health care reform.

Joseph DiMiasi and Laura Faden of Tufts reviewed the histories of 298 drugs approved by the FDA between 1996 and 2006 to identify "factors associated with multiple FDA review cycles and approval phase times."

Nicolaus Henke, Sonosuke Kadonaga, and Ludwig Kanzler of McKinsey argue that Japan's healthcare system is unsustainable, and suggest that the Japanese undertake a "comprehensive, well-funded national review of the system." I bet they find that 2 plus 2 still won't equal 5.

John Graham of the Pacific Research Institute "reviews three decades of the Food and Drug Administration's performance and concludes that the agency is overfunded, overstaffed, and denies hundreds of thousands of Americans timely access to new medicines."

Henry Willis et al. of the RAND Corporation believe that the Cities Readiness Initiative has succeeded at improving the ability of large cities to respond to large-scale biological warfare.

Next Week
: On Tuesday, March 31, the Cato Institute will host (and webcast) a policy forum entitled "Can the Market Provide Choice and Secure Health Coverage Even for High-Cost Illnesses?"

An Examination of Sen. Baucus' Arguments: "We Cannot Afford to Wait" to Reform Healthcare

Whether or not you agree with the President's proposed healthcare reforms, they're based upon flawed assumptions.

On Friday, Sen. Max Baucus (D-MT), a.k.a. "Mr. Healthcare", and chairman of the influential Senate Finance Committee, delivered a speech on healthcare reform at the Center for American Progress, entitled "Now is the Time for Action." The speech was cheered by Jonathan Cohn as a "clear rejoinder to those who say health care reform must wait, because of the economic crisis" and described as a "useful restatement of principle" by Ezra Klein (who published Baucus' full remarks). But Baucus makes a number of flawed arguments as to why healthcare reform is "an economic imperative":
Between 2000 and 2007, average premiums rose nearly 80 percent. At the same time, average wages rose just 15 percent. How can a family keep up?

Last year, the average household spent more than a quarter of its income on health insurance premiums. If we don’t act to reduce the rate of health spending, then in seven years — before the end of President Obama’s second term — most American households will spend nearly half of their income on health insurance.
To be more precise, if wages rise by exactly 15% in the next seven years and if insurance premiums rise by another 80% over the same time frame, a family which spends 25% of its income on health insurance today will spend 39% seven years from now (without adjusting for inflation). While that would be an increase, Baucus exaggerates the degree.

More importantly, it is arbitrary to assume that premiums will rise over the next seven years by the same degree that they did between 2000 and 2007. Indeed, according to the Kaiser Family Foundation, the rate of increase in family insurance premiums has declined for 6 straight years, from 13.3% in 2003 to 4.7% in 2008. If insurance premiums increase for seven years at 4.7%, the total increase is 38%, not 80%. And none of these numbers reflect how the present economic crisis is affecting premiums and wage growth.

This is not to say that Baucus' projections are inconceivable. But it is to say that they are arbitrary. Affordable healthcare is an important goal—but we won't get there if we don't understand healthcare economics.
If we don’t act, increasing costs will result in more and more individuals and families without health insurance.

According to the Kaiser Family Foundation, 160 million Americans get their health benefits through an employer. That means that when people lose their job, they often lose their coverage.

This month, the unemployment rate rose to eight point one percent. Work done here at the Center for American Progress shows that — every day — 14,000 more people lose their health insurance coverage.
This problem is a serious one, but it was caused by government intervention: the taxpayer subsidy of employer-provided insurance. Baucus proposes to solve a problem caused by unwise government regulation by nationalizing healthcare. A simpler, and more efficient approach, would be to end the subsidy for employer-provided insurance. President Obama is, apparently, now open to this approach. But when John McCain proposed this in the 2008 campaign, then-Senator Obama described it as "the largest middle-class tax increase in history."

Imagine if you could shop for health insurance the way you shop for auto insurance or life insurance. You could find a plan that made sense for you, that covered the things that are important to you. You could organize a community of like-minded people to purchase insurance in bulk. Most of all, you would create competition for your business, the surefire way to bring prices down and quality up.
Anthem Blue Cross in California just notified most of its individual policyholders that they face double-digit premium increases — many more than 30 percent. Blue Cross of Michigan is seeking approval for an increase in premiums of nearly 60 percent.

That means that if we don’t act, then workers who lose their jobs will not be able to afford coverage. It means that many of those purchasing coverage in the individual market will be forced to drop their coverage.
Insurance companies, like most businesses, operate in the real world of supply and demand. They can't raise prices forever without losing customers, just as car companies can't suddenly double prices on cars. Simply put, it is not in insurers' interests to lose customers, and that self-interest will keep a lid on premiums. Ultimately it is up to insurers to decline to pay for the most expensive treatments if they can't afford to offer them. The problem comes when states mandate what insurers must cover, forcing the price of insurance higher.
An individual obligation to get health coverage is essential for several reasons. It is the only way to stop the cost-shifting related to uncompensated care. Today, the costs of care for 46 million Americans without health insurance are largely borne by those with insurance.
This is an idea, pioneered by Mitt Romney in Massachusetts, which deserves bipartisan support. Libertarians raise instinctive concerns about any government mandate. But federal law requires hospitals to treat anyone who comes into an emergency room, regardless of his ability to pay, thereby taxing those who buy health insurance at the behest of those who don't. Most states require auto insurance, yet libertarians don't spend a lot of their time seeking to repeal those laws.
The manufacturing industry is facing stiff international competition. American manufacturers pay $2.38 an hour for health benefits. What do you suppose America’s major trading partners pay? 96 cents. Talk about an uneven playing field.

American manufacturers spend nearly three times as much on health benefits as our major trading partners. If we don’t act, then that gap will continue to widen.
The uneven playing field between U.S. and our major trading partners is not health benefits, but corporate taxes. Corporate income tax rates in the United States are the highest in the developed world: 39.25% in 2008, vs. the OECD average of 26.63%. And that's without the tax increases that inevitably would accompany a nationalized healthcare system.
And if we don’t act, then the burden on taxpayers will continue to grow. In 2009, Medicare spending is projected to be nearly $500 billion. By 2018, it will be almost double that.

If we don’t act, then in the next 10 years, spending for both Medicaid and Medicare will more than double. Meanwhile, our economy will grow by just 64 percent.
So the solution is to spend more on healthcare while inducing economy-contracting tax increases?
Already, we spend twice as much on health care as any other industrialized nation. And yet our outcomes are poorer.
I will address this point in a future blog post, but the data does not support this argument.
The way that we pay providers contributes to higher health costs. Existing payment systems reward the use of specialty care and high tech equipment.

We pay more to a hospital whose patients experience a readmission after being discharged. And we pay less to a hospital that does the job right the first time and avoids a second hospital visit.

Spending and utilization varies widely from one part of the country to another. But those who are spending more are not getting more for their money.

In many parts of the country, providers have answered the siren call of the payment systems. They order more tests. They schedule more visits. They do more procedures. They perform more imaging services. And they prescribe more medications.
Here we get to a critical point: cost. We are constantly told that it is a terrible thing that Americans are spending too much on healthcare. Somehow, we're never told that we spend too much on cosmetics, or televisions, or automobiles. According to the Bureau of Labor Statistics, Americans spend nearly as much on entertainment (5.6%) as they do on healthcare (6.0%), and far more on food (12.3%), housing (32.6%), and transportation (18.1%). Indeed, it could just as easily be argued that it is a good thing that Americans spend more on healthcare. We have access to the newest drugs and the latest technologies. We can see specialists when we have specialized medical problems. We can pay for medical procedures that we want to undergo. Efforts to provide universal healthcare coverage routinely ignore the question of rationing. That is, if we are to provide healthcare for all, how much healthcare will we provide for all? All you have to do is look at Massachusetts for a preview of what's to come: price controls and rationing.

That is not to say that there aren't times when too many tests are ordered by physicians. But more often than not, this practice is driven by a desire to avoid malpractice litigation, a practice dryly termed "defensive medicine" by physicians. An important way to reduce healthcare costs which Baucus doesn't address is tort reform: limiting unnecessary litigation by requiring, as most developed countries do, the losing side to pay the winning side's legal costs.

Another unspoken driver of healthcare costs is Medicare. The government underpays hospitals for the cost of caring for elderly Medicare patients. Hospitals make up the difference by overcharging people on private insurance. In other words, on top of the Medicare tax which you see on your paycheck every month, you are being taxed silently every time the government underpays a hospital for a Medicare patient. But if the government started paying hospitals fairly for their services, the Medicare trust fund would go bankrupt.
That path necessarily involves bipartisan support. Why? Because in the end, in the Senate, a bill needs 60 votes. Attempts to circumvent this requirement using reconciliation would also require trade-offs...

If we do not act this year, then we won’t have another opportunity for another decade. Next year, we’ll be in the midst of Congressional elections. The following year, we’ll be in a Presidential cycle. We have to act now.
Baucus gets to the political reasons why enacting sweeping changes to the healthcare system has proven so difficult. Importantly, he appears skeptical of using reconciliation, a parliamentary procedure which would do an end run around Republican opposition, presumably because it would engender increased Republican hostility to other Democratic priorities.

Baucus, a Democratic senator in Republican Montana, has a record of crossing party lines. He was a key supporter of George W. Bush's tax cuts in 2001, and worked with Republicans on the Medicare prescription drug benefit. So far, on the Great Healthcare Debate of 2009, he has adopted a traditional Democratic policy posture. Will he stay there?