The Scalia Factor

Erwin Chemerinsky, in an editorial in the Los Angeles Times, raises an important point: Justice Antonin Scalia is setting a bad example for young lawyers (I'd extend this to young and old people in general) by frequently resorting to sarcasm and scorn when he should be developing an argument. We try to teach lawyers -- and young people, and politicians, and, well, everyone -- to be civil, reasonable, and professional in making a case for whatever view they are taking. Scalia all-too-often does not do that, turning instead to clever nastiness with no (or precious little) reasonable argumentation.

Much of Scalia's recent writing, especially in his barb-laden footnotes, suggest a man who thinks an "argument" is a loud exchange of unpleasantries rather than a rational attempt to develop a persuasive case for a position. Many of the young people I meet, especially in the classrooms of colleges and universities, think that is what arguing is all about. They learn this from many aspects of our culture, from the political hustings (where rational argumentation is almost totally foreign) to radio and television (where nasty shouting down of one's opponent -- or guest -- is de rigueur) to classrooms (where all are encouraged to give their "opinion" on issues, no matter how little they know about those issues or how little justification they can give for their views). It lurks in our common language, where people talk about what they "feel" rather than what they "think" ("I feel that Russia can't be trusted") -- probably because they haven't actually thought much about these matters and certainly have not engaged in any attempt to reason through an issue to a sound conclusion and have not been encouraged to do so. Scalia fits right in. To make it worse, he writes well, he's funny (often in a nasty sort of way), he comes up with memorable phrases (like his recent "jiggery-pokery"), he's entertaining, and as a result he's often in (because he seeks out) the limelight. He is the darling of the right, a favorite of talk radio, Fox News, and the Federalist Society; he's the one Supreme Court justice whose opinions and speeches always attract attention, not because they are cogently argued but because they are an amusing read.

One need not disagree with Scalia's views to see his influence as nefarious. While it may be hard to put much stock in his preposterous so-called "originalism," and while it's hard to miss the fact that he doesn't always follow his own theory (usually when it produces a conclusion that conflicts with his conservative values), that's not the point here. As Chemerinsky notes, Scalia too often writes like a man whose arguments and logic don't hold up -- and so he resorts to derision and cheap jokes his readers find "delightfully funny." For instance, "jiggery pokery" is both: it is an amusing sounding Britishism that means it's user is lying -- it's both cute and cutting at the same time; as used by Scalia in King v. Burwell, it was a catchy way to say the majority of his colleagues are nothing better than evil-intentioned liars.

Chemerinsky says that he has always taught his students (both high school debaters and law students) that nastiness is "a crutch for those who cannot win using reason or legal precedent." He finds Scalia's rhetorical behavior to be "childish, even vain; like a harshly negative book critic, he revels in his own turns of phrase. And his attitude . . . affects the profession as a whole." In fact, I would add, behind the haze created by his rhetoric and his reputation, I fear we find a man who's not up to the job of serious constitutional thinking. This is dangerous in a nation where the public square has become a place where blunt, unsupported assertions, no matter how outrageous or contrary to fact, are treated as equivalent (if not superior) to soundly reasoned argumentation. What we don't need is "a new generation of peevish, callous scoffers," for that way lies a further decline in citizenship and, ultimately, in the constitutional republic that is our shared national project. In Scalia we see a man who is making matters worse not just in the legal profession but in the nation as a whole.

[Please remember what I said in my last blog post: this blog is no longer officially connected with the Vermont Bar Association and does not represent the views of that organization or its staff or officers.]

Lex et Ratio No Longer Associated with the VBA

I have asked that this blog be disconnected from the Vermont Bar Association website. Lex et Ratio will no longer be the official VBA "ideas blog." It will, rather, be a blog of my own ideas, driven by my own interests, and reflecting only my own considered positions on the issues addressed.

This will offer greater freedom to write about a wider range of topics and to develop my own thinking on those subjects without casting an eye over my shoulder to make sure I'm not saying anything that could troublesome if taken as "official" VBA positions. While most of the time the issues I discuss and the conclusions I reach would not be -- and have not been -- contrary to VBA interests, there have been times in the past when I did not write, or carefully worded what I did write (by "toning it down," for instance, or by not pushing the argument as hard as it could be pushed), because of the link to the VBA. The tie between this blog and the VBA never led me to take positions with which I disagreed, but it did make me think very carefully about what and how I wrote, for I did not want to appear to be stating a "VBA view" when all I was really offering was my own take on a subject.

De-coupling from the VBA will permit me to address a host of issues and develop a number of arguments and positions that I would shy away from were I writing as a spokesperson for the organization. Now I can write without being worried that I will be criticized for taking a "political" stance at odds with the proper focus of a membership association. This is not a hypothetical worry, for I have received such criticism in the past and will be likely to tackle topics and take positions that will inspire such criticism in the future. The association does not need that kind of misunderstanding -- it is, after all, a membership association that seeks to appeal to all lawyers and persons interested in the law, not one that carves out a certain subset of that population and seeks to espouse their interests and viewpoints (like, for instance, the Vermont Association for Justice, which espouses the concerns of plaintiffs lawyers in the state). And I have come increasingly hesitant to write because I do not want to be perceived to be the spokesperson for the association when I am not.

Henceforth, the views expressed, and the arguments developed for them, in this blog should be taken as mine alone. They do not in any way reflect the views of the Vermont Bar Association. It's cleaner this way.

A-Rod and the Rule of Law

The sports media is abuzz with the story of Alex Rodriguez, the New York Yankee third baseman, who has been handed a 211-game suspension by Major League Baseball for his link to BioGenesis -- an anti-aging clinic that fed star athletes performance-enhancing drugs -- and his alleged attempts to obtain and destroy evidence of that involvement. The suspension is slated to begin Thursday and extend through the end of the 2014 season -- by which point Rodriguez's career may be finished (he's 38 now, and his performance has been declining over the past several years: the anti-aging stuff appears not to be working very well). The suspension, if it takes effect, will likely prevent Rodriguez from making a run at the all-time home run record, which lies just 115 home runs away from his career total of 647. (Of course, most people believe that the 747 hit by Barry Bonds were PED-fueled, though that has yet to be proven.) A-Rod is appealing the suspension, and will be permitted to play while the appeal proceeds -- mixed news for Yankee fans who have grown tired of A-Rod's antics and failure to perform when it really counts but who are suffering through a frustrating season that has seen NY third baseman hit a measly four homers all year. On the same day that Rodriguez was given the 211-game suspension, twelve other players were handed 50-game suspensions (which would make them eligible to play again before the end of this season) and Ryan Braun was earlier suspended for the remainder of this season (a total of 64 games) -- all in conjunction with BioGenesis.

What does all this have to do with law? Well, aside from the thousands of dollars A-Rod is likely to spend (and probably has already spent) on lawyers in his appeal and related legal actions and the potential for baseball's antitrust exemption to be called into question once again, the unfolding events implicate fundamental questions about the rule of law about which we should care deeply -- no matter what you think about players who use PEDs to improve their production, no matter how you feel about Rodriguez as a ballplayer or a person, no matter whether you root for or against the Yankees, no matter whether you follow baseball or not.

What is called the "principle of legality" lies at the heart of the rule of law. It provides that no one can be convicted of or punished for a crime unless the law defined the crime and specified the punishment before the person engaged in the behavior under consideration. Herbert L. Packer calls this "the first principle of criminal law" and there can be no question that in the absence of this principle a system does not even qualify as a system of law. In his well-known discussion of the "inner morality of law," Lon Fuller included as fundamental principles of law "promulgation" (laws must be published and knowable by those to whom they apply) and a general prohibition of "retroactivity." The latter, of course, appears prominently in the U.S. Constitution. Article 1, Sections 9 and 10 prohibit Congress and the states from passing ex post facto laws and most state constitutions include a similar ban. An ex post facto law does one of three things: (1) it criminalizes an act that wasn't a crime when it was committed; (2) it increases the punishment for a crime after the act was committed; or (3) it takes away a defense that was available to a defendant when the act was committed. The principle of legality, and its relative the ex post facto ban, help create a predictable system within which people can conform their conduct to the requirements of the law; these principles provide individuals with fair warning about what they can and cannot do, and about what the consequences of their actions are likely to be. Failure to adhere to these principles is, as Fuller said, to fail to make law at all, though it may be something else (quite possibly something oppressive). Even if we take the view of Holmes' "bad man" -- who "does not care two straws for the action or deduction, but . . . does want to know what Massachusetts or English courts are likely to do in fact" -- if we cannot prophesy what the courts will do, we do not have law.

Now think about A-Rod. Even those with little use for Rodriguez (and such folks are legion -- he is quite possibly the most disliked player in the game by both fans and fellow players) should be concerned about the severity of the punishment meted out to him (even though Major League Baseball came up short of what would have been the "nuclear option": a lifetime ban). No punishment has been given at all to those many players from the 90s and 00s who admitted to using (or were strongly suspected of using) performance-enhancing drugs, or even to those who lied (or are suspected to have lied) to various investigative bodies, including Congress. Some of these players have a legitimate shot at being voted into the Hall of Fame; some apologized and continued to play; some are now coaches. Of course, the rules were somewhat different then -- and the principle of legality would suggest that these players should not be punished for doing something (using PEDs) that was not against the rules of their day (at least at the beginning). But even those who have been caught red-handed in recent years have only been suspended for a couple of months at most. The severest penalty yet was that given to Braun -- he was suspended for the rest of the year and his reputation with players and fans is ruined. But Braun had been caught before, suspended, and won an appeal with protestations of innocence that turn out now to be outright lies -- factors that surely added to the severity of his punishment. The 50-game suspensions given the other BioGenesis clients were consistent with the Joint Drug Agreement between the league and the players union. Setting aside the lifetime bans meted out to Pete Rose and "Shoeless Joe" Jackson (and others) for gambling -- bans frequently and justifiably criticized -- Rodriguez's 211-game suspension is more than twice as long as any other suspension in baseball history, as Matt Schiavenza notes in The Atlantic. 

Rodriguez strikes me as the prototypical Holmesian bad man (as does Bonds): certain that he can get away with it and willing to do virtually anything to ensure that he does. Assume for the moment that he possessed PEDs supplied by BioGenesis. One can imagine him sitting down with his "advisers" and trying to figure out how to behave. What he wants to know (as Holmes saw) is where the lines are -- what the courts will do in fact -- so he can tailor his conduct to fall just within the lines, or include the expected punishment within his utilitarian calculation of costs and benefits in order to decide what to do. A-Rod evidently discounted the probability of getting caught -- as bad men are wont to do -- but concluded, based on the precedents, that the punishment would not be severe enough to outweigh the expected benefits from his enhanced performance. He had no reason to expect -- nor could his lawyers have anticipated -- that he would be suspended for 211 games if caught; something more on the order of 50 or 60 games would have been expected. So the system failed to provide him with fair warning of the consequences of his actions. And increasing the punishment after the acts have been committed, as noted above, is to transgress the prohibition on ex post facto rules. Throwing the book at an offender does not mean throwing the rest of the library at him, too; the "book" lies within covers set by the promulgated (or experiential) limits of the sanction. And there seems to be no particular reason to throw the book at A-Rod other than that he's an easy target: disliked, haughty, egotistical, too often in the limelight for the wrong things. Braun's punishment, it seems to me, falls within the covers of the book; A-Rod's does not.

But there's more. In this instance, the rules themselves were unclear. Rodriguez appears to be suspended for being linked to BioGenesis, on the testimony of one, unreliable witness (the clinic's founder, Tony Bosch), without ever having failed a drug test (the necessary basis for suspension under the JDA). And baseball throughout its history has been afflicted with the same sorts of drunks, criminals, and jerks that inhabit the playing surfaces of other major sports -- and baseball has mostly turned a blind eye to their off-field behavior. (The exceptions had to do with cocaine use and gambling -- the former illegal and the latter cutting at the heart of the very idea of sports competition.) So what rule did A-Rod violate exactly? Or better stated, what rule can we prove that he violated? Doesn't it seem outrageous to levy a year-and-a-half suspension on a player who has not yet been "convicted" of anything other than being a poor example and a self-centered prima donna?

At some point, Major League Baseball needs to say that "from this time forward anyone who uses performance enhancing drugs on a specified list is done for good." But it has to be prospective not retroactive. The "clean" players, who are finally speaking up, are right: the only way to clean up the game, to stop the use of PEDs, is to make the penalties so severe that even the bad men won't run the risk. Even that probably won't work perfectly; the bad guys are always one step ahead of the cops, in sports as in society in general. There are always those who think they can get away with it; and always those who will do the calculation and decide to break the rules. But to levy a major, career-ending suspension now, prior to the promulgation of the "done for good" rule, against one prominent player, when no one had good reason to think that penalty was forthcoming, seems unfair. 

OK, you're saying that this is baseball not the legal system, and things can be different in the private than in the public sphere. But to draw a rigid distinction between public and private, between baseball and the law, has its risks. The rule of law requires strict adherence to the principle of legality, and to the prohibition against ex post facto laws. As citizens we should be on our guard against those -- whether they be public officials or semi-public officials, government agents or "rulers" of large semi-private associations (like baseball commissioners) -- who would tell us it's alright to violate the fundamental principles upon which our polity is based. Madison hoped that each citizen would be "an Argus to espy" those who would trample on constitutional principles. When Madison spoke of these principles, he meant to include more than the words of the constitutional text, for our constitution encompasses the basic commitments of our way of life as a people embarked on a common voyage. Read in that way, constitutional principles include foundational features of the rule of law such as the principle of legality. Bud Selig, the baseball commissioner, frequently talks about how baseball should use its enormous influence to provide positive examples of proper behavior to old and young alike (though especially, of course, to the young). If he really believes that, if it is not just jargon or bluster, he should be concerned about the lessons being taught by a system that permits punishments that far exceed what could have been predicted by the baddest of men and their advisers -- and permits those punishments to be handed out on the basis of unclear rules, questionable testimony, and general dislike of particular persons. And as citizens, we should recognize what is going on and we should be willing to speak out against violations of fundamental principles even when they occur outside the legal system -- lest we develop the habit of ignoring those principles in the public as we do in the private realm. For that way lies disaster. 

In Praise of Inconsistency

Emerson famously said -- in a passage frequently misquoted and misunderstood -- "a foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Emerson believed that no great leader -- indeed, no thoughtful, complete person -- seeks consistency but, like a mariner tacking to-and-fro with the ever-changing winds, simply thinks (and does) what they believe to be right at the moment. According to Emerson, one should seek to do the right thing, under the circumstances as they appear today, and should not get hung up on ensuring consistency between what one does today and what one did and said yesterday. If present thought and action appear inconsistent with prior thought and action, so be it.

One does not follow Emerson's advice easily. Deep within us -- products as we are of the rationalization that characterizes modernity -- lies an powerful urge to be consistent. So powerful is this urge -- and so powerful is the inner logic of the social drive to subject all things to rational calculation -- that we balk at any line of thinking, any policy of action, that seems to conflict with what we thought or did in the past. We criticize those who fail to live up to the ideal of consistency and our social order and its set of deeply ensconced values treats them as unreliable, untrustworthy, undeserving of high position or great responsibility. More than a mere hobgoblin, consistency serves as a core value of late capitalist modernity, one ignored at great peril to one's reputation and authority.

And yet Emerson may have hit upon one of the major differences between leaders and managers. Managers work within systems, within bodies of rules and practices, and so their actions need to be consistent one with the other and all with (and within) the system. Since they work within rationalized systems, replete with rules, precedents, standardized procedures, and regularized decision processes, managers are expected -- and expect themselves -- to think, work, and behave in a consistent manner, one tied closely to "the way things are done" and have always been done. Precedent inevitably drives the work of the manager and, given the press of business, generally little time exists to reflect upon the precedents or to reinterpret them creatively. (In fact, one of the charms of the legal profession, for many though hardly all of us, is the opportunity to reflect on precedent and use it creatively to achieve new ends -- which is not to deny that most lawyers, most of the time, act as managers of legal business.) If I am expected to manage a particular part of a business, say its financial functions, my creativity is necessarily limited by constraints that precede me and by practices that have been put in place to render the work of management predictable. As with all systems of rules, predictability is crucial. To a great extent, predictability can be achieved because rules necessarily place limits on the actions of those who carry out particular roles within the system to which the rules apply.

Leaders differ from managers -- a statement commonly made in the leadership literature, but one too little theorized. Leadership is not simply a matter of power or motivational qualities, though the belief that it is allows the leadership industry to fool us into believing that many can become leaders if only they are endowed with the "right stuff" (usually through pricey seminars and books offered for sale by so-called, and usually self-appointed, experts). The category of "leaders" is considerably smaller than the leadership industry would have us believe -- a topic that deserves more attention than I can give it in the present essay. Beyond  positions of authority or power, beyond the ability to motivate followers, leaders must possess the ability, and most importantly the willingness, to work outside of systems and rules and practices. Though they need not always or even often do so, leaders differ from managers in their willingness to go beyond the rules as laid down, to step outside the circle of the acceptable that is defined by precedents and regulations. W.E.B. Dubois said of Lincoln that,

in that curious human way he was big inside. He had reserves and depths and when habit and convention were torn away there was something left to Lincoln -- nothing to most of his contemners. There was something left, so that at the crisis he was big enough to be inconsistent -- cruel, merciful; peace-loving, a fighter; despising Negroes and letting them fight and vote; protecting slavery and freeing slaves. He was a man -- a big, inconsistent, brave man.

Exactly.

Managers can be defined by the systems within which they operate; their identity can be captured by the rules set down for the roles they play. They are what Hans Gerth and C. Wright Mills referred to as "role-determined": they are "instituted" because they work within, and their functions and positions are given definition by, the institutions (structures, roles, and rules) inside which they operate. Strip away the habits and conventions, and there is nothing (or precious little) left.

Leaders, however, can take on "role-determining" traits, defining and redefining the confines of their roles. Such agents may truly be said to be leaders rather than "mere managers." I do not mean to belittle managers with this phrase, but only to insist on the difference between managers and those more properly called leaders. While leaders may be managers, when they act as leaders they often engage in stretching roles to fit a new way of seeing institutional activities, goals, and functions. Indeed, depending upon the circumstances in which they act, leaders may engage in "new modeling" the rules and systems out of which they operate. In these instances, leaders become "role-creating" (an idea first suggested to me by Robert C. Tucker), re-fashioning the rules, procedures, functions, roles, and other features of the institution in which they act. Leaders of either the role-determining or role-creating sort do not routinely "play by the rules" except to the extent that they make (or re-envision) the rules. Consequently, they often eschew consistency, for consistency requires doing and saying what one has done and said before -- and that is precisely what leaders must be willing to forgo. Leaders must be willing to jettison the "foolish consistency" of "little minds."

The fact is, as David Gergen has noted, "[l]eaders are often those who see fresh, historic opportunities and seize them, even at the expense of their own consistency." Leaders must be flexible, agile, able to respond to circumstances that offer openings for achievement. Leaders must be willing to "new model" their group, their organization, their nation -- and they must not let a "foolish consistency" interfere with what a changed environment and a new view presents to them as the right thing to do, the right way to move. The willingness to constantly examine one's life, one's views, one's circumstances -- to explore the unique concatenation of events that forms the present and to reflect upon how one should act within it -- lies at the heart of good leadership. Leaders re-envision the present, which flows out of a past they seek to understand. And they affirmatively move into the future rather than cling to the past, creating new models rather than dutifully adhering to the old. The future into which they thrust themselves differs from what has gone before and therefore necessarily fails to be consistent with it. Leaders act in a reflexive manner, closely examining the order of things around them with a craving to remake it. Leaders possess the ability and the desire to change in the face of change, to create, to reconstitute the world around them, consistency be damned.

Politicians frequently criticize each other for "waffling," for changing their views, for shifting with the wind of public opinion (or the opinion of their "base"), or for giving away the ranch by compromising on important principles. In this they reflect the rationality of modernity that sees virtue in strict adherence to rules, roles, and patterns. The charge of "flip-flopping" appears to be part of the central repertoire of political campaigning; campaign organizations, party spokespeople, and the media purvey the notion that a willingness to compromise reflects a lack of principles, a failing talked about as if it were fatal to respectability. This gives rise to the bizarre twistings and turnings of politicians seeking to show how their current position truly parallels previous positions, even when it is clear to nearly everyone that it does not.

Compromise, in this way of looking at things, is always suspect, a vice more than a virtue. And yet at the same time, we hear a lot these days about the importance of compromise, especially from those (justifiably) critical of the stalemate in Washington. Civic educators praise compromise as a virtue essential for the success of democracy; theorists of democracy tell us that, without compromise, majority rule cannot work. Compromise is, indeed, an important value for both leaders and followers, in nations, organizations, groups. Woodrow Wilson famously refused to compromise on the League of Nations Covenant, failing first to keep in mind that any agreement worked out in Europe must get the advice and consent of the Senate and failing second to compromise with senatorial leaders, to give a little once it became clear they were unwilling to go along with the covenant as presented to them. Refusal to compromise, as we learn from Wilson, can be tragic. A rigid adherence to principle can undermine collective action and collective well-being. Politics, as Max Weber made clear in his "vocation lectures," is no place for saints or those who aspire to be saints; politics demands a willingness to give and take, to settle for the second best, to compromise in order to get something done. Politics, according to Weber, demands an "ethic of responsibility" to temper the "ethic of ultimate ends" espoused by the idealist and the saint. And the argument holds good not just for politics, but for all circumstances of group activity where leadership can take place. Leaders must have the ability and the willingness to compromise, though it is wrong to imagine that they will always do so, for the appropriateness of compromise depends on the leader's assessment of the many factors and layers of the situation at hand.

Polish philosopher Leszek Kolakowski stated in his essay "In Praise of Inconsistency," "humanity has survived only thanks to inconsistency," for "total consistency is tantamount in practice to fanaticism, while inconsistency is the source of tolerance." Leadership entails the ability to assess circumstances to determine whether one must rigidly adhere to one's principles and previous positions, or whether doing so is the sort of foolishness Emerson had in mind -- or worse, whether doing so is a sign of fanaticism. Notice that this means that one need not be consistently inconsistent, inconsistent "all the way down" as it were. Rather, as Kolakowski concludes, we should be inconsistently inconsistent, keeping always a healthy reserve of uncertainty about the rightness of what we have done in the past, and about the rightness of our own current view and the error of those opposed to us. Leaders strive to be comfortable with this kind of uncertainty, never fully succeeding but never resigning themselves to the warm snugness of the rules laid down or the contentment of consistency.

Democratic Leadership

Arthur Schlesinger, Jr., in his article "Democracy and Leadership," defined leadership as "the art of fostering and managing innovation in the service of a free community." There are several key features to this definition, not least of which is the idea that democratic leaders serve free people and their communities. They do not set a course and insist that they be followed no matter what. Nor do they entice people to vote for them so that they can pursue whatever policies they happen to believe to be the right ones. Rather, democratic leaders stand at the head of a free people; they serve the interests of those people as defined by the people themselves. This is a tricky notion, for a real leader is not simply a factotum. Instead, the leader helps the people reach a collective decision that, one hopes, reflects a reasonable understanding of the common good. A leader urges the people to think, to engage critically with their circumstances, their history, their prejudices, their desires. A democratic leader -- whether or how a non-democratic leader differs is a subject for another occasion -- functions as a Socratic gadfly, stinging the people into thought, irritating them into debate and deliberation. Once the people have decided, at the end of this process of deliberation, the democratic leader takes charge of achieving the people's ends. But once again, the leader should not act alone; rather, the leader works with the people (or some subset of them) to achieve the chosen ends, aware always that those ends evolve as the common project goes forward.

Now I suspect that in Schlesinger's mind the leader plays a more active, more directive role, while the people are considerably more passive. This understanding of leadership persists in electoral politics -- particularly in presidential elections, where the assumption lives on that a good president leads a relatively passive people to success as a nation. Schlesinger wrote at a time when developments in science and technology threatened the extinction of the world -- still an important concern (and a topic in presidential debates) though not the preoccupation it was from the 1950s through the 1980s. Schlesinger said that "[t]he mission of democratic statecraft is to keep institutions and values sufficiently abreast of the accelerating velocity of history to give society a chance of controlling the energies let loose by science and technology." This suggests a remarkably directive role for the leader or statesman, one that should make us uncomfortable. Do we want to hand over to leaders the power to control institutions and values, so that they may be restructured and redefined to fit the needs or serve the interests of science and technology? Do we want to hand over this awesome power for any purpose? Whenever a writer begins to speak of "statecraft," we should pay heed -- for the idea conveys a sense that the leader has an insight into what is good for the people that the people may not share and that the job of the leader is to ensure that the people get in line. "Statecraft" seems to suggest a leader who crafts the people, their polity, their government to fit ends (perhaps esoteric ends) he or she sees but they do not. Is such a distribution of power still democratic in any meaningful sense?

And there is reason to worry that the cat is out of this bag, for we have indeed handed over considerable power to politicians and business leaders, something to which Schlesinger, the author of The Imperial Presidency, should have been highly attuned. The crucial decisions about the values and institutions most appropriate to the current technological environment have been entrusted to faceless corporate managers rather than to a deliberative people; the crucial decisions about who we shall be as a people, about how we will relate to the communities in which we live, the world we inhabit, the nations that surround us, have been given into the hands of people who appeal to us in the most venal fashion. As Michael Sandel has noted, we have come to a moment in history when market mentality pervades ever more of our lives together, taking over choices and aspects of human being where economic thinking simply does not belong -- and this without democratic discussion let alone decision. As a result, tremendous power to determine values and institutions has been given into the hands of so-called "leaders" in business and politics -- and taken out of the hands of the people themselves. Perhaps this is inevitable given the large scale of contemporary institutions; perhaps not. But it does suggest that "democracy" is an odd word to describe what remains after real power has been taken or inveigled from the hands of the people and placed into the hands of those invested in the pursuit of self-interest (whether embodied in money or political power).

Schlesinger, I believe, rightly places innovation at the center of the notion of leadership -- a theme I want to pursue in later entries in this series. But for now note that innovation does not come solely from the leader while others simply follow along. Garry Wills argues that the way we talk about leadership often throws us onto the horns of a dilemma where "we seem stuck . . . between two unacceptable alternatives -- the leader who dictates to others, or the one who truckles to them." The former is undemocratic; the latter is no longer a leader but (at best) only an emissary or agent. A democratic leader cannot have "followers" in the same way as a king or a general can. Rather, the democratic leader innovates together with others, inspiring them to invent, to generate new ideas, to "think outside the box." Yes, the leader must do those things as well, but it is important to keep in mind that innovation in democracy is a group process, a shared project of people in civil association with one another. The kind of leadership that may be appropriate in a top-down corporation is not the sort of leadership called for by democracy. A leader, as I said above, urges people to think, stinging them into thoughtful consideration of their world, their beliefs, their values, their institutions. The leader does not shy away from change, for a policy that refuses to change in the face of rapidly changing circumstances is doomed to failure. The leader, in fact, encourages new ways of looking at things, encourages the reconsideration of traditions, customs, values, and practices in the light of a changed environment.  This reconsideration that takes place in public, where the citizens present themselves as public beings, not in a some smoky room or the comfortable premises of a corporate or governmental office. The leader goads people into taking a critical look at where they are and where they may be able to go. The leader does not drag people into a future they cannot grasp, have not deliberated about, and do not accept. Rather, the leader's virtue lies in an ability to trigger thought, debate, reason, and decision. The leader fosters reason and choice, calling upon people to resist (or at least deliberate about) the products of accident and force. Most importantly, the leader is not the decider; rather, she generates the conditions and the desire for critical thought and common decision among the members of the community.

Wills rightly defines the leader as "one who mobilizes others toward a goal shared by leader and followers." Leaders cannot lead in the absence of followers; the availability of appropriate followers is a necessary precondition for leadership. Different circumstances, different cultures and beliefs, different political, economic, and social systems all help to determine the kinds of followers that are available and, therefore, the kind of leader that is needed. But unless leader and followers share a common goal, unless they are engaged in a common enterprise, nothing will happen that resembles leadership. In fact, when Wills distinguishes the different types of leaders (he offers sixteen types), he does so in terms of the goals they pursue with their followers, rather than in terms of their psychological type, their character traits, or any of the usual markers highlighted by the standard literature. Leadership is, then, a relationship -- a three-legged stool, involving a not-too-dictatorial leader (a primus inter pares), a body of not-too-passive followers, and a jointly pursued goal. That goal is something worked out together, in interaction, in discussion, debate, and deliberation (formal or informal).

Leadership, especially democratic leadership, therefore, describes a complex social relation rather than a feature or set of features possessed by an individual. A proper understanding of democratic (indeed of all) leadership must delve into the dimensions of that complex relation. The complexity of the relation contributes to the sense that leadership is ineffable and unteachable. The depth of the leadership relationship eludes the vast majority of the authors who contribute to the leadership literature, bent as they are on the discovery of the key trait that signals real leadership, the trait they can in turn communicate to their audiences in books and lectures. As John Gardner has put it, "the conventional views of leadership are shallow, and set us up for endless disappointment." But a deeper understanding of the leadership relation that lies at the heart of democratic as of all non-authoritarian leadership can take the mystery out of what makes a leader -- and it makes it possible to find and train leaders. Most importantly for the future of democratic deliberation, it makes it possible to draw leaders out of the people (rather than, for instance, only out of the ranks of the affluent). For, as Gardner argues, the capacity to perform the tasks of leadership is widely distributed among the general population; it is not the private preserve of an elite.

Aristotle argued that citizens are persons who rule and are ruled in turn. This is another way of saying that citizens of a democratic republic must have the capacity to lead as well as to follow, capacities formed through action not through birth, capacities rooted in habits a healthy society inculcates in its citizens. A failure to teach the capacity to lead opens the door for subjection, a decidedly non-democratic result -- and one that threatens us today.

Thinking About Leadership

Election season inevitably triggers assertions of leadership. Candidates for every office seek to sell themselves as the leader we have all been longing for. Little, of course, is said about the content of that leadership, for it is assumed that winning or holding office is by itself a sign of leadership. Nor, sadly, is any serious attention given to the meaning of the concept of "leadership," which functions mostly as a placeholder or an undefined label of uncertain content that affixes itself to persons in high position (or desirous of gaining high position). Candidates claim the ability to lead, insist they are strong leaders, speak of how they want to lead us into the future or out of the recession. Rhetorically, the term calls to the minds of the audience visions of generals leading a charge or leading an army out of a desert; the assumption seems to be that we are in need of a leader, which is to say that we need to be followers. The language of leadership seems to come with the territory of political campaigning -- and as campaigns extend more and more to cover the entire time between elections, we hear constant talk of leadership, still without any serious attempt to explain what is meant other than to equate leadership with a particular person's office or favorite policy.

But there are places where the concept of leadership is taken seriously enough to try to plumb its depths. Indeed, much has been written and said about "leadership" over the past several decades in the academy and within the professions. Doctors, lawyers, business people, executives of various types, and (of course) military officers are encouraged to become leaders, as are members of sports teams, churches, and virtually every other kind of civil association. Entire courses on the subject are offered at military academies and business schools, at both the undergraduate and graduate level. Lectures and workshops -- delivered to rapt audiences of business executives, salespeople, community officers or activists, association heads, youth group coordinators, or professionals of various sorts -- encourage audience members to become leaders (as if it were the primary feature of the good life) and explore the personal qualities of the effective leader. They offer exercises designed to develop those qualities. Leadership institutes abound in every field of endeavor, and "future leaders" are trotted off to them in the belief (or hope) that they will make a difference. There exists, in short, a veritable leadership industry employing thousands and entertaining (or spending the dollars of) millions more.

The foundation of the leadership industry, it should be obvious, lies in the belief that leadership can be taught. To a certain extent, it probably can be. There are certain fundamental features of good leadership that seem true no matter what the field of endeavor. But the features of leadership vary considerably with the circumstances, and, as both Garry Wills and Nannerl Keohane have noted, skills that make for a leader in one context do not necessarily (or even likely) make that same person (or someone who has emulated that person) a leader in a different context. Keohane, for instance, asserts that it is probably not true that a good business leader is necessarily a good political leader (or vice versa), despite the tendency of many (including many with great power) to believe otherwise. Nor can we easily take practical lessons for leadership from the practices of a leader in one field and apply them in a different field. Reading a book about John Wooden, the great UCLA basketball coach, will not make you a good association leader, even if you closely imitate Wooden's practices, themes, language, and beliefs; leading an association or a team of doctors is just not the same as leading a basketball program. In his book, Certain Trumpets: The Nature of Leadership, Wills describes sixteen different types of leader, with no claim that the list is exhaustive. The leadership literature is enormous, each book or article laying out what the author believes to be the crucial characteristics possessed by the leader. With multiple types of leader and a host of different traits associated with leadership, there is much to be taught and much to learn.

But learning about leadership is not the same as learning to be -- let alone being -- a leader. I do not become a .300 hitter by reading a book on hitting; I do not become a great quarterback by reading a biography of Peyton Manning. So leadership is more than a body of information or even a set of practices. And to that extent, it is something that cannot be taught, though it may be honed if one already has "it." Leaders -- those who truly lead, as opposed to those who hold high positions -- possess a certain something that cannot be learned in a textbook, in the pages of the Harvard Business Review, in a workshop or lecture hall, or in a biography of Steve Jobs -- a something that interacts in a unique way with the environment in which the leader acts. It may not entirely be the case that "leaders are born not made," but it seems obvious that everyone is not equally capable of becoming a leader. A leader surely possesses certain character traits, deep-seated and deeply rooted habits, that have been developed in multiple contexts over many years. Sitting in a seminar room and taking good notes cannot be a substitute for this long-term inculcation of habits and orientations. Nor can reading a book and attempting to follow its precepts create inside a person those characteristics that do seem to be a matter of birth -- the characteristics we see when we recognize "leadership potential" in teenagers or speak of certain members of the high school baseball team as "team leaders."

Real leadership is both desirable and rare. We desire political leaders who can inspire citizens, who can get people to do what is needed to foster the common good, who can step forward boldly to blaze new trails into a nation's future. We desire business and educational leaders who can see the new and make it happen, who have the nimbleness and flexibility to innovate and adapt to changing circumstances. We look for leaders on our teams -- whether work or sports teams -- who can inspire others to give their best and can push the group beyond itself. But it is not often that we find these leaders. More often we find managers instead of leaders -- to employ a crucial distinction found in the business literature. We find functionaries able to carry out their jobs with success, but not those who bring a combination of insight, charisma, creativity, and nerve to their circumstances. We find people who promise bold new initiatives and ideas, only to recycle the same old, tired policies. Or we find individuals who focus more on their own personal benefit while bragging that doing so actually leads to the improvement of the lot of everyone. The occasions that call for leadership vastly outnumber the real leaders.

What is to be done? I don't believe the solution is to avoid the language of leadership or eschew the attempt to inculcate those traits that characterize the leader. Our organizations and associations need leaders, as does the body politic. What we do not need are men on horseback riding to the rescue bent on leading us passively to the promised land, a better society, or finer future. If we need leaders, it makes sense to try to determine the features of real leadership. And it makes sense to examine the habits and orientations of those we take to be leaders so as to offer them to potential leaders. Remember, leadership can be honed though it cannot be impressed upon unsuitable material; if the material is suitable, however, perhaps we can instill some of the qualities of sound leadership. All those courses and workshops, books and articles -- where they are not simply money machines for snake oil salesmen -- have a role to play: to clarify what we mean by leadership and to offer to those with the inherent capabilities to be leaders in their field of endeavor intellectual and practical structures within which to develop those capabilities. If we are to take control of our world -- certainly a suitable object for citizens of a constitutional republic -- we must develop the basis upon which to reflect and choose our leaders and how they will lead. Otherwise, we are left with what is handed to us by accident and force.

Unwritten Constitution Day

Arriving on my desk last week -- on Constitution Day (Sept. 17) no less -- was the latest book by Yale law professor Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By. A sequel of sorts to the award-winning America's Constitution: A Biography (2005), Amar's new book examines the texts, traditions, and precedents that guide (and should guide, in his view) those who interpret the written document itself. Amar contends that a written constitution simply cannot include all the understandings that emerge over the course of centuries, understandings that undergird the words of the text, that help give meaning to that text. In his view, the written and unwritten constitutions work together, forming a single system that permits judges, lawyers, and citizens to make sense of the nature of our polity and the rules and principles that lie at its foundation. As Amar puts it,

The terse text is inextricably intertwined with the implicit principles, the ordaining deeds, the lived customs, the landmark cases, the unifying symbols, the legitimating democratic theories, the institutional settlements, the framework statutes, the two-party ground rules, the appeals to conscience, the state-constitutional counterparts, and the unfinished agenda items that form much of America's unwritten Constitution. 

Amar claims to go "beneath, behind, and beyond the written Constitution" while at the same time remaining connected to it. He says he wants to appeal both to originalists and to those who believe in a living constitution. But while the latter may find much that is congenial in Amar's interpretations, originalists will be driven wild by his approach, which necessarily entails going outside the four corners of the document and refusing to be bound by any sort of "original meaning" of specific words and phrases. What Antonin Scalia calls "textualism" is definitely not for Amar, who insists that the meaning of the Constitution lies as much outside the words of the text themselves as within. Nevertheless, thoughtful originalists and conservatives will find the book provocative and, one hopes, will wish to engage its arguments. To lend credence to this aim, the publishers offer positive comments by Ken Starr and Federalist Society co-founder Steven Calabresi, both of whom find Amar's work to be "fine book" but speak otherwise in vague generalities (calling it "thoughtful," "provocative," even a "classic" without exactly saying why).

What Amar attempts to do -- with some success it seems to me -- is to show, that there are principles underlying the words of the text that help us find the meaning of those words. He aims to stay true to the written Constitution even when going outside of it, and he lays out the appropriate techniques to do this. But go beyond the written text he certainly does, pulling into his analysis a wide range of materials, from Supreme Court decisions to the Gettysburg Address, from the pre-Constitution Northwest Ordinance to Dr. Martin Luther King Jr.'s "I Have a Dream" speech.

The argument that there are fundamental principles that allow us to determine the meaning of constitutional text even when confronted with circumstances never imagined by the drafters of that text is not a new one, of course. The best case for that position has been made by Ronald Dworkin in a series of books -- especially, Taking Rights Seriously, A Matter of Principle, Law's Empire, Freedom's Law, and Justice in Robes -- and it is mildly disturbing that Amar makes no reference to Dworkin's oeuvre. Dworkin's philosophically sophisticated argument for a principled reading of a constitution -- especially our Constitution -- sets the bar quite high (the height of that bar can be seen in Dworkin's excellent recent book, Justice for Hedgehogs). But Amar may be the more sophisticated historian (though I suspect "real" historians may find that he uses history like a lawyer building a case, rather than treating it with the semi-reverence historians prefer), and he provides those of us who reject the simplistic assertions of originalists and textualists with a wealth of information that sheds considerable light on the ideas that lend meaning to the words used in the Constitution.

I have written before that "originalism" is really quite a silly approach to constitutional interpretation, one that, despite the recent efforts of Justice Scalia and co-author Bryan Garner to give it some pedigree and despite its popularity with a certain breed of politician, cannot hold up to critical analysis. (That case, I realize, I have not made. So many projects, so little time.) Amar is kind enough to give that approach some respect, while rapidly carrying the idea that the meaning of the Constitution must rest in some way on the words in the text well beyond the place where Scalia would ever go even in his boldest moments. Scalia is bold, to be sure, but it is a blustery boldness, a kind of hard-headed resistance to any point of view that is not consistent with his own, rather archaic, one. And, as his recent battle with Richard Posner indicates, Scalia has no patience with criticism. He is a true believer, set in his ways and beliefs, convinced that he is right. In itself, such a mindset is not necessarily bad, though we would hope that thoughtful citizens would always be open to the challenge of reason. But Scalia simply refuses to consider strands of reasoning that cut against his settled prejudices; he chooses instead to shower those who reason in ways he cannot accept and those who reach conclusions that are not his own with sarcasm in lieu of reasoned argument (simply read any of his recent Supreme Court dissents to see examples of this proclivity). Casting his approach as an attack on the notion of a "living Constitution" -- an attack that generally proceeds by setting up a straw man and repeatedly setting it on fire -- Scalia has made himself an advocate of a dead Constitution, a document fossilized more than 200 years ago. Amar, like so many of us, finds that style of "thinking" bankrupt and, possibly, dangerous to the future of constitutionalism.

I have written elsewhere that constitutions

Constitutions seek to frame a political world that will overcome conflict, persist through change, and secure its blessings to posterity. Constitutions are designed to endure despite the challenges posed by times of stress. Most importantly, constitutions are conceived as orders imposed upon chaos, capable of ending revolution and disorder and preventing their recurrence.

What this means is that those interpreting a constitution must keep in mind the point of having a constitution. And they must remain firmly rooted in the text of the document, in the tissue of words the constitution projects into the world.

Constitutional words . . . both provide a solid, seemingly changeless touchstone for the development of the polity and a medium through which the constitution, the principles on which it is founded, and the goals it is intended to serve, may be communicated, debated, interpreted, re-interpreted, re-visioned. Because they are structures of words, constitutions are both changeless (though they may be amendable) and developing. Constitutions are not once-for-all, though they are written precisely to limit change by institutionalizing it. Words in a living language have the fascinating quality of never quite coming to rest in terms of their meanings and implications; they are, in terms employed by H.L.A. Hart, “open textured.” Languages grow and shift as they encounter an ever-changing world. Consequently, constitutions—constructions of words cast into the world—develop over time, very much like the constitution of a human person, never totally, but nevertheless steadily. They progress from within but are designed to stop fundamental transformation. Constitution-makers seek to erect structures that resist fundamental change but allow for development, structures that flex but do not buckle under pressure.

In other words, locking constitutional meanings in a particular moment in the past undermines the very point of a constitution, for it closes down the development that lies at the heart of the constitutional project.

There is, of course, much more that should be said here. But this is enough to indicate that I believe Amar is on the right track, for he seeks to figure out those ideas, principles, traditions, customs, precedents, and so forth that help constitute the texture, however open, of constitutional language. Amar may concentrate too much on the past for my tastes, but he effectively makes the point that part of the meaning of the words that confront us today is the product of the past. But it is a continuous past, one that did not end immediately after ratification but continues into the present. To the extent that Amar helps us come to grips with the presence of the past in the words we use and interpret, he has done a great service to constitutionalism.

In some ways, Amar conducts an archaeology of our Constitution, finding various layers beneath its text, layers that develop over time and extend into our present. He offers discussions of the Constitution as enacted and as it has been "lived" by the people. He explores case law, constitutional doctrine, and the iconography of the Constitution. He explores what he calls the "feminist Constitution" and the "Georgian Constitution" (in a chapter entitled "Following Washington's Lead"). He examines the ways in which practice over time has molded today's understanding of constitutional institutions. He looks at political parties and ethics and the ways both have influenced our interpretation of constitutional text.

Amar ends his book with a look at the Constitution of the future -- what he calls our "unfinished Constitution" (a term that must be like fingernails on a chalkboard to originalists like Justice Scalia).

Studying how our existing Constitution was in fact enacted, how it has actually been glossed by past interpreters and implementers, and how it truly operates today can also help us to make sound scientific predictions about which amendment proposals have the best odds of prevailing in the days and decades ahead.

While I'm not so sure about the claim to arrive at "scientific predictions" (surely this is over the top), a look at the unwritten principles that give foundation to our written Constitution may very well help us decide what amendment proposals are most consistent with our constitutional tradition, which ones fit best with the course of our constitutional history and best continue that history. Such a look will not help anyone make sensible predictions about what will happen, at least not absent a host of additional assumptions about the direction, current condition, and fate of American political culture, about the nature of future challenges to constitutional democracy, and about the ways in which future people will respond to events and ideas we cannot even imagine. But this is a small point, one that hardly undermines the value of Amar's overall endeavor.

Amar's book provides a thoughtful, helpful, at times provocative interpretation of how we should seek to understand our American constitutional adventure. As lawyers -- as citizens -- we should seek to learn more about the constitution, to reflect upon the meaning of constitutionalism, and to engage in constitutional reasoning. America's Unwritten Constitution offers a perspective and a set of insights that can help us in these tasks. The book is long (nearly 500 pages) but reads easily. Those interested in taking their responsibilities as constitutional citizens seriously will find it a worthwhile exercise -- and a breath of fresh air after a season of stultifying discussion of original meanings and uninformed (or deceptive) political babble.