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.

Random Notes, Part II: Watchdogs and the Bad Man View of the Law

My son called to my attention an article by Anthony Hilton in the British trade publication PRWeek, tracing the roots of the Libor rate-fixing affair to a rotten culture at the heart of the banking industry. (The article is, unfortunately, behind a subscriber's login.) Hilton notes that "the reason why in some companies things appear to have gone badly off the rails is that the in-house lawyer, whose traditional role was to keep the company on the straight and narrow, no longer fulfils that role in the same way." In other words, one of the keys to the corruption that has crept through the corporate world is lawyers no longer play the role they once did.

In earlier times when the lawyer saw behaviours in the organisation that he or she thought could be a source of reputational risk, they would inform the board that the policy was unacceptable and would have to be changed. Today the guidance is that the behaviour is unacceptable but if the company wants to continue with it, then it needs to structure it in a certain way. In other words, ensuring the corporate culture complied with the spirit of the law has given way to compliance with the letter of the law.

To the extent there is a bright spot in this rottenness, according to Hilton, it belongs to the PR and communications people inside these companies, who now put much of their focus on "internal comms . . . spotting where the company is behaving badly, forcing the matter to the attention of the board and getting it stopped before it causes real damage."

On first read, I didn't know whether to be pleased with the watchdog role now being taken (at least according to Hilton) by communications people (that is, after all, what I do for a living) or saddened, even angered, by the criticism of lawyers. The more I thought about it, however, the more it occurred to me that Mr. Hilton likely has it wrong. The nostalgia about in-house lawyers disturbs because it posits a sort of Golden Age from which we have fallen. It suggests that the legal profession has become corrupt, more concerned about self-interest (or the self-interests of those they serve most immediately) than about the common good. It would be nice had it once been the case that in-house lawyers called questionable activities to the attention of the board and insisted it be changed. Perhaps it was. And it would be sad if lawyers no longer looked out for the public interest by calling their employers to account.

But the role of the corporate lawyer has long been to help a company stay within the letter of the law. As far back as the turn of the 20th century, Oliver Wendall Holmes spoke of lawyers employing a "bad man's" view of the law when advising clients: that is, they asked what the courts (or other quasi-judicial bodies) would do in fact, not what the spirit of the law might be. They asked the question a bad man would ask: what can I get away with? Holmes saw nothing wrong with this approach, which he saw as inevitable given the role lawyers play in our system. And Holmes was skeptical of any "more pretentious" sense of what is morally right or of how lawyers should act. When a client asks what the law says about whatever it is she wants to do, the answer must include information of what the relevant judicial bodies are likely to do. It would be dishonest to present a reading of the law that is stricter than the relevant court would give it, though nothing precludes the lawyer from also addressing the intentions or goals behind rules and regulations. In fact, those intentions and goals likely will influence how courts read those enactments -- unless, of course, the court is staffed by narrow-minded textualists or Scalian originalists, who have no truck with anything beyond the literal meanings of the words in the text. Lawyers are expected to be assiduously honest, and I think that means telling their clients the truth about the actual state of the law in practice rather than offering some pie-in-the-sky theory about what the terms of the law might mean were they read by some ideal judge in the heavenly city.

To be sure, a case can be made that the "bad man" style of lawyering is cynical and unethical (that's why it's called the "bad man" view). But that case is not very convincing. The job of the lawyer is primarily to serve her client (see the Rules of Professional Conduct), and only secondarily to ensure that some abstract notion of "justice" is achieved on any given occasion. Placing the client above abstract justice lies at the heart of the adversary system, and while arguments can be made against the adversary system as a system, those arguments must remain merely philosophical in the face of the fact that the people have done nothing to replace that system with something else. Lawyers are "officers of the court" and must perform their roles within the terms set by the system. The practice of the law, in that sense, is conservative because it assumes that the rules, customs, and traditions that have grown up over time are likely to better serve justice than random, individual, and non-traditional attempts to achieve justice on isolated occasions and outside the standing rules of practice. Such a vision of the law and legal practice strikes me as most consistent with the very idea of a constitutional democracy.

None of this should be read to deny that there are conceptions of justice built into the system that should guide courts and lawyers in deciding cases. There are such principles. But it is unlikely that in advising a client the lawyer's role is to wax philosophical about some of those principles and how they relate to the client's particular interests. The principles may become relevant now and then in court, in defense of the client who is charged with doing something. But that means that their place is in the deliberations of the lawyer heading to court, in the judge's chambers, and in the conference rooms of appellate courts -- not in the office of a client who is looking for advice as to how to behave on a particular occasion.

And so what has changed, I believe, is not the tendency of lawyers to help their clients do what they want to do within the bounds of the law, but what those bounds actually are. Where rules and regulations are interpreted in very broad and permissive terms, where they often go unenforced, it is incumbent upon the lawyer to tell her client the truth about these matters. To present a reading of the law that ignores these features of the material circumstances in which the client will act is dishonest and places a preoccupation with one's own purity above the interests of the client.

So not only is Hilton likely wrong about the way things used to be, but he is also wrong about how they ought to be. Certainly lawyers should tell their clients when they or their employees are doing something that violates the law as it will be read and enforced. But the next step is to help the client achieve her goals within the terms of the law; it is emphatically not to stubbornly dig in his heals and refuse to offer the advice the client seeks.

Hilton may even be wrong about the way things are now. I suspect there is just as much evidence (and just as little) for his claim about the role being played by communications people as there is for his claim about the failure of in-house (or external) counsel to be good watchdogs. How do we go about proving that lawyers are not, generally, warning their clients against actions that violate the law? It is quite possible that lawyers do this regularly, and that most clients take their advice to heart and act in socially acceptable ways. There is no way of knowing. Bald assertions about how bad lawyers have become only serve to pin the blame for large misdeeds on easy targets, thereby ridding corporate executives and the culture they have created -- not to mention the culture at large, created largely by a citizenry vastly more interested in material things than in civic virtue -- of the responsibility for the corruption that surrounds us. 

Posner v. Scalia; Or, What Is It to Be Conservative?

In the current issue of The New Republic, Richard Posner, prolific writer and judge on the 7th Circuit Court of Appeals, reviews Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan A. Garner. Posner and Scalia have a long-running battle, as might be expected from the fact that the former believes judges should decide cases based, at least in part, on economic reasoning while the latter clings to a textual originalism that sees the economic style of interpretation to be fundamentally unsound because it imports extra-textual factors into the reading of law and constitution. Posner is a sharp reasoner -- considerably sharper in my view than Scalia, who favors the clever bon mot and the witty, sarcastic one-liner. This is not the place to venture into a full-scale critique of Scalia's originalism, however. Suffice it to say that Scalia's interpretive methodology does not hold up well to criticism -- whether from the left or the right -- and Scalia's own practice of it seems suffused with the justice's political leanings. Posner finds Scalia's jurisprudence to be "incoherent," and makes a strong case for the claim. Indeed, Posner is overall a much more rigorous thinker than Scalia, though in the end I find him no more congenial because I do not agree that the purpose of law can be reduced to an economic one.

What is most interesting in this conflict is that both judges would generally be considered "conservative." One lesson from this observation is that conservative thought does not necessarily lead to "originalism." Scalia and Garner are right to argue that interpretive approaches (at least this one) have no inherent political leaning. One can imagine an originalist who does a better job than Scalia typically does determining the original meanings of words and phrases and passages and texts -- one who finds, contra Scalia, that those original meanings are considerably more "liberal" than does Scalia. Still, as usually practiced, originalism serves as a cover for politically conservative results, and as Posner is at pains to show, many of Justice Scalia's judicial opinions seem rooted far more in political conservatism than in originalism; certain sorts of results are much more likely to emerge from Scalia's search for original meanings than are others.

Another lesson follows from the first. "Conservatism" is a copious term, encompassing many different points of view and a subject of considerable controversy in itself. Traditionally, a conservative was someone who sought to "conserve," to keep things the way they are and have long been. That sort of conservative is wary of human interference with custom and tradition, believing that no person, no set of policymakers, can know enough to redesign what history has handed down to us without risking great harm, disorder, and destruction. That sort of conservative followed Edmund Burke, who attacked the French Revolution for casting off centuries of tradition in favor of newfangled ideas propounded by professors and writers -- and replacing a longstanding political regime with something new, untried, and, in the end, brutal and tyrannical. Michael Oakeshott best captured this sort of conservatism in his "On Being Conservative": "To be conservative, then, is to prefer the familiar to the unknown, to prefer the tried to the untried, fact to mystery, the actual to the possible, the limited to the unbounded, the near to the distant, the sufficient to the superabundant, the convenient to the perfect, present laughter to utopian bliss." Oakeshott was particularly concerned about the increasing role of what he called "Rationalism" in politics. The Rationalist is someone who thinks "the conduct of affairs . . . is a matter of solving problems, and in this no man can hope to be successful whose reason has become inflexible by surrender to habit or is clouded by the fumes of tradition." The Rationalist is a social engineer with no patience for "second best" solutions. The Rationalist thinks now is the time to achieve the ideal; his solutions are perfect and must be applied uniformly, across the board, with no local variation, for they are founded on the application of rigorous scientific reason to the problems a society faces. The true conservative, on the other hand, resists rationalism and favors the slow, tedious working out of solutions over time to the helter skelter vigor of rationalist interventionism. Tocqueville had this sort of conservatism in mind when he said that lawyers in America are the true aristocrats, the true conservatives.

Who represents such a conservatism today? Certainly not Posner, who espouses an activist judiciary bent on assuring that law serves to produce economic welfare by permitting the market to do its work. Posner is a proponent of the free market, a follower of Milton Friedman and a contributor to the so-called "Chicago School" of economics. In Posner's view, documents like laws and constitutions are ever subject to reinterpretation under the circumstances by wise judges equipped with the best knowledge and methodology economic science has to offer. Posner himself admits that the conservative label may not fit him very well these days, telling Nina Totenberg that he has "become less conservative since the Republican Party started becoming goofy."

But it is just as hard to make the case that Scalia is a conservative in any traditional sense. His vision of the judicial role involves a readiness to overturn statute and precedent in an activist effort to return the nation to an earlier, purer time -- an "original" time when words had their original meaning, a day before all those changes in law and society that so inconveniently occurred over the past 200 years or so. Scalia is conservative only in the sense that the political views he barely veils are considerably more consistent with those of the Republican Party than with those of the Democrats. But as a judge, Scalia does not seek to conserve anything, and he finds nothing congenial in what the historical process -- the traditions and customs that have evolved in the United States -- has given us; far from wanting to conserve these traditions and customs, he wants to return to a time before they developed. This is not conservatism in any meaningful sense, though its proper name is unclear.

In fact, both Posner and Scalia are rationalists: Posner with his eye on the ways legal decisions can shape a better future and Scalia with his eye on a day in the past before society and language and meanings and values had not changed from their "original" state. Both are impatient with letting society, tradition, custom, and law develop over time: Posner because he considers such forces as barriers to sound reasoning, Scalia because they have just turned out all the wrong ways. Both, in short, favor action over passivity in the face of the way things are now. They just want to go in different directions.

The Posner-Scalia debate, therefore, confronts us with a problem (beyond the question of who we find most persuasive): are today's so-called conservatives really "conservative," or are they Oakeshottian rationalists who resemble their supposed "liberal" opponents in their desire to interfere with the way things are? In fact, the debate makes us wonder what a conservative really is. Is it conservative to call for a freer market and a legal system that aims to foster that freedom and encourage the pursuit of economic betterment? Is it conservative to reject what our society and its law has become in favor of older forms of social order and some supposedly ascertainable "original" meaning in legal words? Or is it conservative to cling stubbornly to what we have and where we are, only accepting gradual change and solutions that, while not ideal, are "best in the circumstances"?

Posner's critique of Scalia is worth reading not only because it calls into question a jurisprudential view that gets more respect that it deserves, but also because it raises these questions about what it means to be a conservative. For if a republic, as Machiavelli, Harrington, and Jefferson told us, must periodically return to its first principles in order to guard it against the degeneration all political societies inevitably face, a proper sense of what conservation of those principles requires must go along with a consideration of what those principles actually are.

Random Notes, Part I: Ayn Rand and Reason

I have argued several times that good citizenship of a constitutional democracy like our own requires thoughtful engagement with ideas on a wide range of issues and from a wide range of perspectives. A significant criticism frequently leveled at contemporary America is that most people have isolated themselves into enclaves where everyone lives and thinks the same way. As Cass Sunstein, Bill Bishop, Robert Putnam, and a host of others have argued, Americans increasingly choose to expose themselves to a narrower and narrower spectrum of opinion and many Americans simply avoid engaging in the realm of political and social ideas. Liberals say this about conservatives; conservatives say this about liberals. To some extent they are both right -- and it speaks to the generally sad state of citizenship in the United States. It may be, as I have hinted before, cause for despair and a sign that our long-lasting republic has begun to degenerate as, the tradition tells us, all republics eventually do.

But those who do open themselves to thoughtful analyses of ideas and events -- legal, political, social, economic, religious -- frequently come across interesting items that deserve a wider audience than they are likely to receive in the compacted world of contemporary discussion. In the next few posts I share some of the things I've read this week that I found provocative.

In my most recent post on "Corruption and Equality" I made a veiled reference to Ayn Rand, who has always commanded a devoted following and who has recently been on the lips of many a conservative policymaker and politician. Rand is hot, not just with Ron Paul and his followers, but with many on the right, including Republican vice-presidential nominee Paul Ryan. My reference suggested that American citizens might be better served by finding their intellectual inspiration in the writings of those who founded our constitutional system (and those who inspired them) rather than in the novels of a Russian emigre. Snarky, perhaps, but worth considering. This week I came across a powerful critique of Rand by Canadian philosopher, Nicholas McGinnis. If you are philosophically minded and are interested in wrestling with complicated ideas, McGinnis's analysis of Randian philosophy and economics is quite persuasive. Rand's followers rarely examine the philosophical assumptions upon which her economic conclusions are based. They like the conclusions, and simply assume the argument is strong; or they toss out a few of Rand's seemingly self-evident truths and, skipping blithely past the deductions that might lead from the truths to the economics, assume they've said all they need to say. But the essence of McGinnis's argument is that Rand writes as if she building upon a well-worked out philosophical system, when in reality she is not. For instance, the famous Randian claim that "existence exists," always presented as if it were an indubitable truth, has no particular cash value when an attempt is made to ground economic policy on it. In fact, some would be inclined, I imagine, to say the phrase is silly, meaningless, high-sounding babble -- and they might well be right.

What is most interesting about McGinnis's critique is that it does not rest merely on critics such as Gore Vidal, who said in 1961 that Rand

has great attraction for simple people who are puzzled by organized society, who object to paying taxes, who dislike the "welfare" state, who feel guilt at the thought of the suffering of others but who would like to harden their hearts . . . Ayn Rand's "philosophy" is nearly perfect in its immorality, which makes the size of her audience all the more ominous and symptomatic.

Strong words, but easily tossed aside as the ideological claims of a dyed-in-the-wool liberal. McGinnis, however, relies more on a philosophical analysis of Rand's reasoning and, most interestingly, on the developed views of numerous conservative and libertarian writers -- from philosophers to journalists to politicians to economists, from Robert Nozick to William F. Buckley to Whitaker Chambers to Alan Greenspan. McGinnis, in other words, does not remain in some sort of liberal bubble, but ventures out into territory he may not find congenial or comforting. But what he finds there is that Rand has far more devotees than people who are convinced by her arguments. He concludes that Rand's thought doesn't stand up to analysis, whether from the left or the right or from a standpoint of neutral reason (if there is such a thing -- but that is a topic for another occasion).

Take, for instance, the fairly recent rejection of the foundation of Randian economic policy -- the claim that self-interest is a virtue and therefore that the world will be a better place if we simply take the government reins off of selfish behavior -- by a former devotee, Alan Greenspan. Testifying in 2008 before a senate committee investigating the financial crisis, Greenspan admitted:

I made a mistake in presuming that the self-interests of organizations, specifically banks and others, were such that they were best capable of protecting their own shareholders and their equity in the firms . . .  Those of us who have looked to the self-interest of lending institutions to protect shareholders' equity, myself included, are in a state of shocked disbelief.

Pressed by committee chair Henry Waxman for more, Greenspan conceded there was a serious flaw in this most fundamental of Randian arguments: it seems that Rand's views do not, after all, provide a sound basis upon which to build economic policy.

In fact, the flaws in Rand's thought are legion, as McGinnis shows with the help of his conservative sources. Philosopher Robert Nozick, author of the widely read and praised Anarchy, State, and Utopia (which makes a strong, if ultimately unconvincing, philosophical case for libertarianism), typifies the response of thinkers who have taken Rand's arguments seriously. Nozick criticizes Rand for lacking clarity, for simply asserting (without support) a set of debatable premises, for leaping to conclusions without proper argument, and for (in McGinnis's words) "baldly stating controversial theses as if they were self-evident facts." Nozick states that, as much as he would like to set out Rand's argument in deductive form and then examine the premises, "it is not clear (to me) exactly what that argument is." This from an acknowledged master of libertarian and Austrian economic logic.

Writing in 1957 in the National Review, whose editor William F. Buckley had rejected the banal and "dessicated philosophy" of Rand as a violation of the conservative tradition, Whitaker Chambers concluded:

Out of a lifetime of reading, I can recall no other book in which a tone of overriding arrogance was so implacably sustained. Its shrillness is without reprieve. Its dogmatism is without appeal. In addition, the mind which finds this tone natural to it shares other characteristics of its type. (1) It consistently mistakes raw force for strength, and the rawer the force, the more reverent the posture of the mind before it. (2) It supposes itself to be the bringer of a final revelation. Therefore, resistance to the Message cannot be tolerated because disagreement can never be merely honest, prudent, or just humanly fallible. 

Chambers worried that blind devotion to the Randian cult was not only anti-conservative, it was dangerous. At the end of the road that starts with treating Rand as some sort of prophetess with the key to political and economic truth, lies Big Brother -- as it does with the form of materialism Rand most hated: Russian Marxism.

I can understand the initial appeal of Rand's novels, with their heroic individualists taking on the world. I have friends who think these novels are classics, though no one I know would go so far as Rand's erstwhile lover and follower, Nathaniel Branden, who once proclaimed

Ayn Rand is the greatest human being who has ever lived. Atlas Shrugged is the greatest human achievement in the history of the world. Ayn Rand, by virtue of her philosophical genius, is the supreme arbiter of any issue pertaining to what is rational, moral or appropriate to man's life on earth.

Wow. Really? But the oft-heard repetition of Rand's name as if it were a guarantor that there is sound philosophical reason behind policies to unleash selfishness partakes of the same sort of mindlessness. One does not need to be a liberal to bemoan the fact that, increasingly in some circles, selfishness is being touted as if it were the path to human welfare. Thinking conservatives, it seems, find this just as groundless. And both have reason to think it dangerous -- if for no other reason that that the Randian argument is, as McGinnis concludes, simply not there.

Equality and the Republican Tradition

After a short hiatus, I want to return to the theme of corruption. I have been taking my cues from Aristotle, exploring the various ways in which government -- particularly republican government-- can degenerate. The topic of corruption was one that preoccupied the founders of the American constitutional democracy. As Gordon Wood and Lance Banning have shown, American writers in the late 18th century built upon so-called "Country" opposition in England -- a tradition that extended back to the time of the English Civil War and found its paradigmatic expression in the work of James Harrington. In fact, the tradition goes back to Aristotle, via Machiavelli, and extends through Algernon Sidney and Lord Bolingbroke into the mid-18th century. As Banning demonstrates, the preoccupation of American politicians and political writers with the danger of corruption in a republic lay at the basis of the emergence of the "Jeffersonian persuasion": the oppositional ideology that emerged in the 1790s to oppose many of the policies of the Federalists in the executive branch and their congressional allies. The so-called "Republicans" led by Jefferson and Madison (the latter of whom somewhat unexpectedly switching away from his original federalist leanings), saw signs of corruption in federalist policies (such as the creation of the first Bank of the United States) that hinted at an increase in inequality through the rise and empowerment of a commercial elite closely tied with the federal government, as well as an increase in the power of the national government at the expense of the states, of the agrarian element in society, and of regions of the country not involved extensively in manufacturing and banking.

A concern about inequality is a major theme of civic republican thought. Aristotle argued that a healthy polity is one based on equality. Machiavelli, Harrington, Montesquieu, Rousseau -- all insisted that a rough equality among citizens was necessary to avoid the corruptive force of wealth. Each of them argued that laws must seek to prevent large inequalities and must seek to foster frugality and a devotion to the public interest rather than one's private interests. None of these thinkers called for complete equality; rather, they only noted that -- because a devotion to riches is a sign of corruption and because inequality inevitably leads to class warfare and the breakdown of the constitution -- the development of a vast gap between rich and poor must be prevented. Developments in the 19th century virtually put an end to this line of thinking in American political writing and in American government policymaking. As early as the 1830s, Tocqueville was noticing a tension between the urge for greater equality and the protection of economic liberty. Voices calling for equality, and for government policy to place limits on the growth of inequality, appear now and again in American history, but they have generally been drowned out by the sort of pro-capitalist boosterism that defines corporate success as national success, wealth as a sign of greatness, education as critical for economic growth (rather than, say, for active citizenship), and major corporate entities as so central to public welfare that they can be "too big to fail."

Of course, as J. Peter Euben has pointed out, in the Aristotelian framework the meaning of equality varies with the particular circumstances of the regime (oligarchic equality is different from democratic equality). What matters for Aristotle is that equals be treated equally and unequals unequally. But Aristotle was most concerned -- especially in his consideration of the best political regime -- with the quality of a person's contributions to the common good. Mere riches should never be enough to place one above others in terms of the honor and rewards handed out by society; rather, public reward and approval should be based on what one does for the community as a whole. Lining one's own pockets, or even the pockets of one's friends and the other members of one's social class, does not qualify as a significant contribution to the common good. In fact, given that, for Aristotle, the use of power for the good of the rulers rather than the good of all characterizes all perverted regimes, lining one's own pockets inevitably cuts against the common good: a nation in which many seek their own benefit (at the cost of the public interest) is a corrupt regime,  no matter how wealthy,  how powerful, or how proud its citizens may be of it. This is especially true when the behaviors required to obtain riches (always at the expense of others) are encouraged (or not discouraged) by the social order -- by its religions, its educational system, its popular culture. No republic can last long when the institutions that should encourage a commitment to the welfare of all instead praise those actions that work to benefit private individuals and to raise them above their fellows in economic, political, and cultural power. When the social order conspires to reward selfishness (however masked by protestations of concern for the public welfare) rather than commitment to the good of all, the regime is an oligarchy, not a republic. Republics reward those actions and ideals of character that foster the common good; oligarchies (i.e., perverted regimes) pass out rewards to the rich, regardless of any contribution to the common good. Oligarchies discriminate against those whose contributions to the common good warrant greater consideration and reward, while ever greater wealth flows into the coffers of the rich.

It is worth reiterating that no writer in the republican tradition called for complete equality. All of them recognized a value in commerce and the resulting inequalities; they differed only on whether those involved in commerce should have a political role to play in the republic. But all of these writers worried that the minimal inequality they were willing to accept could easily grow into considerable differences among citizens, as the few accumulated inordinate wealth and translated it into political power. Not only does such accumulation serve no particular common purpose, but it also tends to deprive the people whose habits and virtues most characterize good republican citizenship -- the middle class, according to republican theory (from Aristotle on) -- of their fair share of social rewards. Worse yet, it can lead to polarization within the society, ultimately leading to the demise of republican government and its replacement with an oligarchy or a tyranny.

To a disturbing extent, we have lost the spirit of the republican concern for equality -- which is to say that we have become corrupt. That loss confronts us with the need to think seriously about whether or not we agree with those who founded our constitutional democracy. They warned of the dangers of large inequalities of wealth; they contended that no regime could countenance such large inequalities and still remain a republic. They insisted that a social order pervaded by a glorification of economic accumulation, a society in which the rich are praised, fawned upon, and handed political power, was a land in which the people had lost their liberty, for they had given it into the hands of oligarchs. Were they right? If so, what must be do to re-found our republic on its original principles? If they were wrong, where is the political theory that explains why oligarchy is the best form of government? (Does it lie, for instance, in the dense books of Austrian economists or the nearly unreadable novels of Russian emigres?) And, if we truly think oligarchy is the best system of government, we must face the fact that we no longer believe in the same principles that motivated the founders of our nation. That is a path left open to us by republican theory, for the people can always re-found itself, reconstruct its regime, revise or create anew its constitution. But it is a path that diverges greatly from the ideas that inspired the founding of this nation.

Corruption and Commerce

As I noted in my last post (building on work by J. Peter Euben), corruption was a key notion in the classical republican tradition, one that influenced the thinking of the American founders in important ways. In the eyes of this tradition, corruption entailed not so much individual acts of cheating the system as the degradation of the system itself; it was a term used to characterize not particular behaviors but overall, deep-seated features of the polity. Corruption, in the eyes of Aristotle and of the republican tradition, is a disease of the body politic. The features of corruption emerge from a look at what constitutes a healthy polity. If health means that political life takes on a moral purpose as the collective activity of a people engaged in a common enterprise or project, corruption involves the injection of selfish interests into the political and the degeneration of politics into a competition to see whose private interests will be best protected by the force of the state. As I suggested, there is much in contemporary American politics that fits this picture of disease, much that falls far short of the picture of health.

Aristotle explores other aspects of corruption as well. Consistent with classical Greek sensitivities, Aristotle did not hold commerce in high regard. He believed that in a healthy constitution all commercial transactions would be rigorously subject to the moral purposes of community (both household and polis). That means that economic activity should be directed toward the ends of communal life. Economic transactions aimed at mere profit are signs of a community in which self-interest prevails over public interest. A corrupt society, then, is one in which gain is valued over friendship and fellow-feeling, where private interests are set above the common good. When materialism drives the people, both individually and collectively, leading them to focus solely on their own personal gains and losses whenever they make public decisions, corruption has set in and civic virtue has been driven out.

Good citizens think, speak, deliberate, decide, and act with an eye to the common good. The focus of the good Aristotelian (or republican) citizen rests on the betterment of the community, on the general welfare as opposed to their merely personal benefit. If I choose a specific policy on the basis of its effects on my own bank account, I am to that extent failing in virtue; I am to that extent a poor citizen. If I vote for a particular candidate because he or she espouses policies that would serve my own personal ends (such as being able to pay lower taxes so I can gratify more material desires), I am to that extent lacking in civic virtue; I am to that extent acting in a corrupt manner. If I refuse to participate in political affairs because I think they are silly or not worth the time away from my own business or leisure, I am acting selfishly, placing my private interests ahead of those of the community. A community that contains many of these sorts of citizens -- citizens who generally place self-interest ahead of public interest -- is rife with corruption. A political order in which officials or candidates for office cater to the selfish interests of their constituents through base appeals rather than raising them above their private benefit to a concern for the public good is a diseased, even degenerate, political order.

It is important to be clear about what exactly this commitment to the common good entails. Most of those working in what has come to be called the republican tradition (I speak here of a tradition of political thought, not a political party) -- including in addition to Aristotle, Machiavelli, Harrington, Montesquieu, and Rousseau -- have looked for ways to imbue citizens with a devotion to the common good while recognizing that human societies (like human beings) degenerate and decay over time. In short, these writers treated the citizen obsessed with the common good as a standard against which to judge actually existing societies, and concluded that real political worlds could never live up to the standard. Some who have not read these writers deeply miss this point: the notion that real people can never be withdrawn so effectively from their personal interests and their personal ties that they become focused in all things on the public interest. 

One thing for which the American founders are routinely praised is their realism. They understood that most people most of the time cannot be counted upon to rise above their personal interests. Republican idealism found its way into the writings of the so-called anti-federalists, who opposed the Constitution because it created a big, distant government, making corruption inevitable (this was a lesson they had drawn from republican political theory as well as from history). The federalists responded by noting that most people are preoccupied with their own personal affairs and cannot be expected to set those concerns aside routinely to look for and act upon the common good. James Madison, writing in the Federalist Papers was particularly clear about this, repeatedly proposing a setting of interest against interest and noting that not even elite public leaders can be expected to be angels. Madison insisted on "auxiliary precautions" to help ensure that the common good would sometimes be pursued by government, precautions in the form of an expanded sphere (a strong national government as opposed to a weak confederacy or a "dismemberment" of the nation into separate states) and structural devices (branches of government with limited powers, two houses in Congress, a system of federalism pitting states against the national government, and so forth). In short, in Madison's view, the goal of institutional design is to approximate a political world in which the common good is sought by all, especially by government; but this approximation requires multiple structures, limits, and processes that had the effect of filtering out self-interest so that the common interest remained.

Once we take into consideration the realistic understanding that few (if any) citizens are likely to be so caught up with the common good that they generally subordinate their personal to the public interest, the meaning of corruption (at least in this regard) shifts. On a Madisonian view, individuals cannot be considered corrupt simply because they do not obsess about the common good. Rather, corruption becomes a systemic matter, a characteristic of a political order that fails to work in such a way as to foster the public interest by setting ambition against ambition, self-interest against self-interest -- a political order that fails to generate leaders capable of setting aside their own interests and the interests of their friends in order to seek the good of all. Corruption is a disease of the commonwealth rather than a sin committed by individuals. 

Here we can return to Aristotle's distaste for commerce. Madison and the other federalists (following David Hume in this) did not share this distaste, for they saw commerce as crucial for the public benefit despite (or perhaps because of) its roots in self-interest. Indeed, while Charles Beard may have gone too far in claiming that the Constitution was designed specifically to protect the interests of the wealthy mercantile class emerging in the new nation, it is true that many of America's leaders in the late eighteenth and early nineteenth centuries (and in the years since, of course) believed that there was virtue in commerce, or at least that it was only when government protects a vibrant commerce that anything like the common good can be achieved.

But, at least until the end of the eighteenth century, those of the Madisonian persuasion regarding commerce were balanced by those, particularly among the anti-federalists, who persisted in the view, written deep in the republican tradition, that in order to ensure civic virtue and guard against corruption it was essential to keep the citizens poor or at least not permit them to become rich. Even Jefferson was ambivalent about commerce: on the one hand, he recognized the importance of commerce to the well-being of the new nation; on the other hand, he disdained the kind of commerce emerging in the big eastern cities with its bankers and endless trading designed to make money rather than meet needs. These traditionalists held that great riches were a sign of corruption and that commerce tended to focus everyone's attention on pecuniary gain rather than the public good. They held up the person of "the middling sort" as a model of republican virtue. Such a person was neither too poor nor too rich, but was as comfortable behind a plow as he was in the public forum deciding matters of political import. (One need think only of the equation of George Washington with Cincinnatus to see this point.) Only a person not too caught up in commercial affairs, not too rich (that is, not filthy rich), not too focused on personal gain, can be a good citizen. At least at crucial moments, a citizen must be able to set aside private interests in the pursuit of the common good. Those whose attention is too centered on trade, the accumulation of wealth, the proliferation of material good for themselves and those close to them, make poor citizens. In fact, they tend to corrupt the body politic because everything they do is aimed at personal benefit no matter what the ultimate cost to the health of the community.

It is this last point that is crucial to our understanding of corruption as a constitutional matter. Certainly, a person who cannot transcend his private interests to concern himself with public good is a poor citizen. But a corrupt polity is one in which there are many such citizens, one in which the "auxiliary precautions" of the social order have failed to filter the self-interests of citizens and officials out of public life. A corrupt polity is one that fosters the focus on selfish concerns while making a real focus on the good of the community less and less possible. A corrupt polity is one in which all discussion focuses on self-concern rather than seeking to determine what might really be for the good of the community as a whole. A corrupt polity is one in which those who speak employ the rhetoric of the good of the nation, while defining that good as what is for the personal benefit of the hearers -- and while doing so simply in order to gain or keep political, economic, or social power. It is this kind of corruption that we have most to fear today.

Corruption and Politics

The term corruption gets tossed around liberally in law and politics. Most commonly it is used to refer to a specific human activity such as bribery, and in this usage it is frequently employed to distinguish legal and political processes in the United States from those in other, less pure nations. It is true that, by and large, the legal and political systems in the US have become freer of corruption of various sorts -- buying and selling votes or influence, looking the other way for a price, and so forth -- than they once were, and generally freer of corruption than other systems (in the post-Soviet world, for instance, or in some Latin American or African nations). Though it is always important to recognize that our history is not best characterized as one of steady improvement, moving closer and closer to the ideal system -- and pockets of corruption or corrupt individuals continue to come to light now and then, exposed by whistleblowers or the media -- there can be little question that much of what we see today in American law and politics is relatively clean (if not pure).

But there is another meaning to the term corruption that we should recover -- a meaning rooted deep in our history as a nation. This is the notion of political corruption as a disease of the body politic -- not a matter of isolated acts, or even systemic acts by individuals, but one of overall sickness, a decaying, degeneration, or debasement of the system itself. In this usage, corruption contrasts with civic virtue -- it is a vice that can undermine, even destroy, a polity. It can be found in both individuals and the systems they inhabit, but its real critical bite lies in its use to describe a system as a whole.

As J. Peter Euben has shown in his contribution to Political Innovation and Conceptual Change (1989), the concept of corruption pervades ancient Greek considerations of political association. The concept provided the fundamental ground upon which Thucydides explains the decline of Athens. Thucydides' history, in fact, provides the first systematic analysis of corruption, of the degeneration of a polity over time as a result of the choices (or failures to choose) of a once-virtuous people. But the opus classicus for the analysis of corruption is Aristotle's Politics. Euben offers a succinct summary of Aristotelian political theory as it is applied to the idea of corruption. Aristotle, it turns out not surprisingly, has much to say that we moderns should heed and his notion of corruption offers an interesting basis for the examination of contemporary constitutional democracy.

Aristotle works by way of contrast between a healthy polity and one that is corrupt, and his view of political health and decay helped define an entire tradition -- the so-called republican tradition that lay at the basis of the political views of the American founders. Aristotle lays out a number of conditions of health in a polity and each one points to a distinctive form of corruption to which a constitution is subject. Most distinctively, Aristotle's understanding of corruption as a characteristic of a body politic rather than of individual acts pushes us to look beyond the moral foibles of our politicians to a consideration of the nature of our political life as a whole. It is often said that we get the politicians we deserve. Perhaps better stated, we get politicians whose characters reflect the state of our constitution (lower case) as a people and as a political association.

One of the features of a healthy polity according to Aristotle (and to the tradition he founded) rests on his view that citizens should share in the administration of justice. A citizen, according to Aristotle, is a person who rules and is ruled in turn. That means that citizens must be actively involved in deciding the affairs of their community. Aristotle, of course, recognizes the variety of political regimes in the world and refuses to take the Platonic route of describing a single ideal political society. (Plato's ideal is in fact, as Sheldon Wolin has shown, anti-political, designed to rid the world of the need for politics by establishing a timeless system ruled by impersonal and selfless reason).  As a result, Aristotle does not specify who counts as a citizen, how much they share in administering justice, or what justice actually is -- for each of these varies with the nature of the regime and with the historical and geographical circumstances in which it is located. Nevertheless, Aristotle does insist that politics is a moral activity in which men realize what is distinctively human -- man is, as he says, a "political animal" (zoon politicon); thus, political activity is intrinsically valuable, not merely something one engages in instrumentally. A political regime is one in which men are enabled to live well (in both a moral and a material sense). As Hannah Arendt argued, it is right and proper for us to engage in the vita activa, the life taken up with the affairs of the political order in which we are citizens. The vita activa carries its own rewards, fulfilling who we are as humans; its purpose is written into its very nature rather than being directed to some external goal. Politics, in short, is intrinsically, not instrumentally, right.  


But when a regime or its citizens fail to regard public life as a moral activity, political life changes from being what Euben calls a "partnership in virtue" to a mere modus vivendi that functions as a kind of truce between seekers of personal gain. Then the relations among citizens degenerates into mere alliance, commercial collaboration, or contractual agreement through which they pursue their narrow self-interest. At its extreme, political life takes on the features of a Hobbesian state of nature in which everyone seeks his own good, usually at the expense of the good of others and always at the expense of a collective good. When politics becomes a means to achieve selfish ends rather than a mutual collaboration to achieve shared ends consistent with our nature as humans, the regime has become corrupt. As Aristotle puts it, "so long as their association does not go beyond such things as commercial exchange and military alliance," their community is not a political society at all in the proper sense (Politics, 1280b). Such a community has degenerated into a barely contained war; such a community is suffering decay.


Right away, we should see a major difference between the Aristotelian-republican tradition and what has become the dominant liberal view in the United States (using liberal is the classic sense to mean a political theory that emphasizes individual liberty and rights). In the liberal tradition, beginning with Thomas Hobbes and continued by John Locke and his more recent followers, humans are best viewed as isolated individuals constantly seeking their own interests. Community, then, is artificial, created by a social contract conceived as an option chosen because it has the instrumental effect of creating an environment in which we can pursue our private interests with a minimum of interference from others. The public world -- the polity, the constitution, the state -- are designed to make the world safe for the pursuit of our private ends; it has no inherent value in itself. Aristotle's notion that the political has a moral purpose -- that political relations are deeply human in the best, most natural sense -- appears odd when seen through liberal lenses. Hobbes notoriously had no use for Aristotle, seeing the claim that politics is a moral enterprise as just a facade behind which stood someone's self-interests and, indeed, as a major cause of the English Civil War. For Hobbes, nothing is moral or immoral, right or wrong, except what the sovereign  defines as such. And in the contemporary world where the "people" are sovereign, morality and right come to be shaped by sovereign consumers; morality is what the majority says it is. That means that corruption cannot be a matter of falling short of achieving the moral ends of political life, a failure to join together in a common pursuit of a good life together. In fact, corruption becomes a category with little critical purchase -- at best the description of those who cheat, who do not pursue their self-interest through the established processes but try to circumvent the agreed-upon system. The term cannot be used to describe the system as a whole, so long as the system is one that has been chosen or acquiesced in by the majority (explicit or tacit consent -- remember a liberal system is one rooted in the consent of the governed). 


But the Aristotelian analysis, I believe, has a point. A constitutional democracy such as our own is more than a set of structures and rules designed to limit the scope of government, freeing up individuals to pursue their private interests. It is rather a framework for the pursuit of a common project, the project of building a good life together. Citizens are people who participate in the thinking, speaking, debating, deliberating, and deciding required to pursue this common enterprise. To the extent that politics -- the whole of the vita activa that springs from our thoughtful consideration of the issues we face as a people or community -- degenerates into verbal fisticuffs, political life has become corrupt. To the extent that it gets taken over by those who seek their own self-interests even if that comes at the expense of the common good, the constitution has degenerated. To the extent that citizens pay no attention to common affairs, or refuse to see others as fellow citizens engaged in a the common project, the public realm has been debased. When decisions are based solely on what is good for one's own wallet, when deliberation involves only the parroting of the extreme views of loudmouths (or entails the echoes of what Cass Sunstein calls "the daily me"), when debates are shouting matches and speaking is simply ranting totally immune to reason or facts -- then the body politic has been stricken with disease. Death cannot be far off.