The Long View 2006-11-20: Steyn, Tesla, and Option Two

By LordHarris at English Wikipedia - Top left: (from here)Top right:(from here)Bottom:(from here).Transferred from en.wikipedia to Commons by Pass3456., Public Domain, https://commons.wikimedia.org/w/index.php?curid=17002806

By LordHarris at English Wikipedia - Top left: (from here)Top right:(from here)Bottom:(from here).Transferred from en.wikipedia to Commons by Pass3456., Public Domain, https://commons.wikimedia.org/w/index.php?curid=17002806

Here is an interesting reflection on social democracy. In the United States, it is a relatively common political position on the Left to advocate for some kind of social democracy, with some people being confused, thinking this is a variety of socialism, or even communism. In history, social democracy has been inseparable with nationalism, which provided the power to execute on ambitious social projects and the social cohesion necessary for success.

Option One is to recondense the social democratic state of the earlier 20th century. A necessary part of that project would be to dismantle the social-consumer state of the last third of the century, which actually produced the pathologies that Steyn deplores.

Option Two would require the judgement that social democracy is now anachronistic. A.J.P. Taylor remarked that one of the consequences of the First World War was that the fate of the English people and of the English state merged for the first time: that merger was "social democracy." The second option, then, would be to undo that merger in every advanced country. In the 18th century and in prior times the state was not that much more prominent than other corporate bodies. Government was the business of elites. The difference between civilized and barbarous states was that, in the civilized ones, government had reached a truce with civil society. People were allowed to go about their business without the need to worry much about what their "country" was doing. The survival of the state did not depend upon the patriotism of the population. Option Two is to reestablish that condition.

This observation dovetails nicely with the theory that we are due for the formation of a universal state sometime late this century. One of the reasons that nationalism has a bad reputation is that the need for social cohesion and the stakes of the struggle genuinely resulted in oppression. What usually isn’t taken into account is that social safety nets, environmental and workplace regulations, and civil rights were enforced upon recalcitrant minorities and dissenters as well, using the increased state power that nationalism made possible.

The minimalist states of the eighteenth century could never have done any of these things. It is possible that the states of the twenty second century will not be able to either.


Steyn, Tesla, and Option Two

Late modern monuments are usually appalling, but Mark Steyn finds some more appalling than others:

On the tomb of the great architect Sir Christopher Wren at St Paul’s Cathedral is a famous inscription: si monumentum requiris, circumspice; if you seek my monument, look around.” Conversely, if you’re seeking the tomb of western civilization, look around at the monuments. Not the old ones to generals and potentates, but the new ones. ...

Sharing the heart of the capital with King George IV, General Sir Charles Napier and Major General Sir Henry Havelock these days is Alison Lapper, an armless woman heavily pregnant. At the unveiling, Miss Lapper said the new statue would force Britons to “confront their prejudices” about disability...

Another monument: the Arizona 9/11 Memorial. It is a remarkable sight. ...the Arizona memorial is an almost parodic exercise in civilizational self-loathing, festooned in slogans that read like a brainstorming session for a Daily Kos publicity campaign: “You don’t win battles of terrorism with more battles.” “Foreign-born Americans afraid.” “Erroneous US airstrike kills 46 Uruzgan civilians.” And this is the official state memorial.

A third monument, a third country: France. This one was unveiled at the end of October in Clichy-sous-Bois. If that name rings a bell, it’s the bell on the fire truck racing through the streets to douse the flaming Citroens and Renaults in last year’s riots....Clichy-sous-Bois has put up a monument to the unfortunate Zyed Benna and Bouna Traore...

[I]f these monuments truly represent the spirit of each nation as those monuments to Nelson and Napier did in their day then you would have to be an unusually optimistic sort to bet on the long-term prospects of all three countries.

In Ayn Rand's The Fountainhead, I believe, a character remarks on a bestselling autobiography by someone who had spent a lifetime doing nothing more than holding a routine job and chatting with neighbors: in such a cultural climate, the character explains, the fact that someone else has designed an excellent cathedral becomes invisible and unreportable. I wonder whether that is actually true: we can usually distinguish between important public figures and mere celebrities. However, it is true that new public monuments have become like cable-television stations: some have merit, but they are pitched to a niche audience, like the old broadcast television networks were. So, to some extent, the phenomenon is just another consequence of the evaporation of the mass public of the first half of the 20th century. The question is whether we want to recondense that mass.

The 911 monument that Steyn abhors really is just an other example of the general principle that modern monuments are almost invariably designed to reprove rather than to unify. This is not a defect of national spirit, I suspect, but of a lazy arts establishment.

* * *

The reply of 38 Muslim scholars to Pope Benedict's Regensburg Address has already been discussed on this blog. Here is a rather less temperate criticism of the reply, from Islam Watch. Readers may find it interesting for its account (a rather jaundiced one) of the early days of Islam, but it is too angry and diffuse to be an effective polemic.

* * *

So you thought Nikola Tesla was mad, mad, did you? Well, he may well have been, but he seems to have been right about broadcast power:

US researchers have outlined a relatively simple system that could deliver power to devices such as laptop computers or MP3 players without wires....

The answer the team came up with was "resonance", a phenomenon that causes an object to vibrate when energy of a certain frequency is applied.

"When you have two resonant objects of the same frequency they tend to couple very strongly," Professor Soljacic told the BBC News website...the team's system exploits the resonance of electromagnetic waves. Electromagnetic radiation includes radio waves, infrared and X-rays.

Typically, systems that use electromagnetic radiation, such as radio antennas, are not suitable for the efficient transfer of energy because they scatter energy in all directions, wasting large amounts of it into free space.

To overcome this problem, the team investigated a special class of "non-radiative" objects with so-called "long-lived resonances".

When energy is applied to these objects it remains bound to them, rather than escaping to space. "Tails" of energy, which can be many metres long, flicker over the surface.

"If you bring another resonant object with the same frequency close enough to these tails then it turns out that the energy can tunnel from one object to another," said Professor Soljacic...Nineteenth-century physicist and engineer Nikola Tesla experimented with long-range wireless energy transfer, but his most ambitious attempt - the 29m high aerial known as Wardenclyffe Tower, in New York - failed when he ran out of money.

Broadcast power used to figure occasionally in science fiction, since you needed it to power the flying cars. The MIT project is not so ambitious. Still, I wonder whether this might have some application to, say, the Space Elevator. There is the lift question, for one thing. Also, magnets that don't need cables could come in handy in other ways.

* * *

Getting back to the condensation issue, Mark Steyn laments the rift in the Republican Party between the Win the War faction and the Small Government faction. He reasons thus:

I support the Bush Doctrine on two grounds -- first, for "utopian" reasons...second, it also makes sense from a cynical realpolitik perspective: Promoting liberty and democracy, even if they ultimately fail, is still a good way of messing with the thugs' heads...The president doesn't frame it like that, alas. Instead, he says stuff like: "Freedom is the desire of every human heart." Really?...The story of the Western world since 1945 is that, invited to choose between freedom and government "security," large numbers of people vote to dump freedom -- the freedom to make your own decisions about health care, education, property rights, seat belts and a ton of other stuff...If ever there was a time for not introducing a new prescription drug entitlement, wartime is it. Yet the president and Congress apparently decided that they could fight a long existential struggle abroad while Big Government continued to swell and bloat at home. ...Someone in the GOP needs to do what Ronald Reagan did so brilliantly a quarter-century ago: reconcile the big challenges abroad with a small-government philosophy at home. The House and the Senate will not return to Republican hands until they do.

This is an odd reading of the post-World War II West. While perhaps our right to drive without seat belts has been alienated from us, can we really be said to be less free in a world in which censorship has been almost entirely abolished? Conversely, perhaps the most odious thing about the health-care regime in the United States has been its evolution into a system that turns people into the indentured serfs of unsatisfactory employers.

I can only repeat: the expanding welfare state (well, welfare-and-regulation states) was characteristic of the participants in the world wars. Their establishment was part of the defense effort, even during the lulls between the wars, when people did not realize that war was what they were preparing for. Let me put it this way: socialism is war by other means. At least in the years from 1865-1945, the ability to wage an existential struggle abroad presupposed more welfare-and-regulation at home.

If there is another existential threat, there are just two options to deal with it.

Option One is to recondense the social democratic state of the earlier 20th century. A necessary part of that project would be to dismantle the social-consumer state of the last third of the century, which actually produced the pathologies that Steyn deplores.

Option Two would require the judgement that social democracy is now anachronistic. A.J.P. Taylor remarked that one of the consequences of the First World War was that the fate of the English people and of the English state merged for the first time: that merger was "social democracy." The second option, then, would be to undo that merger in every advanced country. In the 18th century and in prior times the state was not that much more prominent than other corporate bodies. Government was the business of elites. The difference between civilized and barbarous states was that, in the civilized ones, government had reached a truce with civil society. People were allowed to go about their business without the need to worry much about what their "country" was doing. The survival of the state did not depend upon the patriotism of the population. Option Two is to reestablish that condition.

Certain necessary features of such a regime are immediately obvious, such as a genuinely mercenary military. Also, tax revenues would have to be raised from more narrowly defined, institutional sources: levies on individuals would have to almost disappear, lest the taxpayers ask what their money was being used for. By the same token, popular control over government expenditures would have to be limited, since otherwise the electoral franchise would become just a license to spend other people's money. Option Two, in fact, would be very like the universal implementation of "petrolism," the sort of regime we often find in oil-producing countries where the government is funded by petroleum revenues and does not need to levy taxes domestically.

All this has current or historical precedent, and could be made to work. The one question is what motive the rulers of such a system would have for maintaining the societies from whose interests they had been at such pains to divorce themselves.

Copyright © 2006 by John J. Reilly

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The Long View: America Alone

habsburg-dynasty.jpg

If the National Intelligence Council really predicted that the EU will collapse by 2020, their prediction is looking like a real long shot at this point. Maybe that is why DARPA funded Philip Tetlock's superforecaster project: to improve the accuracy of things like this.

To be fair, if you had told someone in 2006 that a huge wave of migrants from the Middle East, Central Asia, and Africa would move into Europe in 2016, and that terrorism would be a regular feature of life in much of Western Europe, then a collapse of the EU might have seemed more likely.

I think it demonstrates that the neoliberal consensus is a lot stronger that it might otherwise seem. A relatively tolerant, multicultural, welfare capitalist global system [with a military/secret police enforcement system] seems to be the twenty-first century answer to the same problem the Habsburgs faced in Central Europe: how do you hold together a truly diverse polity?

There are a lot of people who suspect you can't. I think you can, but it's hard. I think this is one of the things that is likely to push us towards a truly post-democratic political order: the need to keep the peace.

Steyn's book talks about how we built a global system on the assumption that populations would keep growing forever. Large scale immigration is often advocated for precisely this reason: we need people to keep the system going. The controversy over immigration has become explosive, but what is interesting to me is that the model doesn't actually seem to be right.

The developed economies keep doing just fine, despite aging populations. If anything, there is too little work to be done, rather than too much. The assumption that Steyn and his political opponents share, the social democratic state needs to constantly grow to survive, may not be true.

In the eleven years since John wrote this, the average number of children across the world has continued to fall everywhere except Africa. So far, sub-Saharan Africa has proven unusually resistant to the demographic transition.


America Alone:
The End of the World as We Know It
By Mark Steyn
Regnery Publishing, 2006
224 Pages, US$27.95, Can$34.95
ISBN 0-89526-078-6

 

There is no way to put Mark Steyn’s view of the next few decades gently:

“The U.S. government’s National Intelligence Council is predicting the EU will collapse by 2020... How bad is it going to get in Europe? As bad as it can get – as in societal collapse, fascist revivalism, and the long Eurabian night, not over the entire Continent but over significant parts of it. And those countries that manage to escape the darkness will do so only after violent convulsions of their own.”

But who is this Steyn fellow, and why is he saying these terrible things? Mark Steyn is a Canadian-American journalist (he first attracted notice as an arts and music critic) who is now sometimes accounted the most influential conservative writer in the anglophone world. He owes that position in part to an epigrammatic style that bears comparison to that of the early G.K. Chesterton. America Alone is composed chiefly of Steyn’s scintillating columns of recent years, but he or his editors have accomplished something very rare: a compilation of previously published occasional pieces that reads like a connected text, with a lucid argument and surprisingly little repetition. This synthesis was possible because Steyn believes he has discovered the Key to World History, or at least the mechanism that will determine the history of the 21st century. To put it briefly:

“[D]emography is an existential crisis for the developed world, because the twentieth-century social democratic state was built on a careless model that requires a constantly growing population to sustain it... The single most important fact about the early twenty-first century is the rapid aging of almost every developed nation other than the United States.”

The magic number here is 2.1, as in the total fertility rate per woman that a developed society needs to maintain its population over time. The US fertility rate is at about that number, a fact explained only in part by immigration: the native-born population of Red State America is over that figure, while the figure for the Blue States is generally below it. It is almost uncanny how much of the rest of the world is below it, either slightly (like Australia) or catastrophically (like Italy and Russia and Japan; and don’t forget China, doomed to get old before it can get rich). It’s true even of most of Latin America. Aside from America, the only regions where it is not true are India, sub-Saharan Africa, and the Muslim world. Without the Muslim angle, this might be a story of economies freezing up and welfare states closing down as the percentage of working-age people becomes too small to support a growing majority of pensioners. The effect of Muslim immigration and conversion, however, coupled as it is with the spread of lethal jihadist ideology, is to raise the possibility that much of Europe could slip out of the Western world entirely. Steyn did not coin the term “Eurabia,” but in an age when a third of the young people in France have been born to Muslim parents, it comes in handy.

Several writers have raised these points in recent years. However, despite the title of the book, Steyn does not subscribe to the conclusion of many of his colleagues that the United States should simply turn inward:

“And I’m a little unnerved at the number of readers who seem to think the rest of the world can go hang and America will endure as a lonely candle of liberty in the new Dark Ages. Think that one through: a totalitarian China, a crumbling Russia, an insane Middle East, a disease-ridden Africa, a civil-war Eurabia -- and a country that can’t even enforce its borders against two relatively benign states will be able to hold the entire planet at bay? Dream on, ‘realists.’”

Neither is the book a call for an American Empire. Steyn tends to support the Bush Administration’s military policy, and particularly the invasion of Iraq; he faults the execution of that campaign principally for being too culturally sensitive. However, he tells us:

“This book isn’t an argument for more war, more bombing, or more killing, but for more will.”

Steyn’s Key to History unlocks not just a proper reading of foreign affairs, but reveals to him the need for a cultural and political transformation of the West. That part of the book, and particularly his prescriptions for the future, is the most problematical. As for the doomsday material, one might observe that it is in the nature of present trends not to continue. If the ones Steyn highlights do continue, however, his grim forecasts will be right.

Steyn has a short explanation for demographic catastrophe:

“In demographic terms, the salient feature of much of the ‘progressive agenda’ – abortion, gay marriage, endlessly deferred adulthood – is that, whatever the charms of any individual item, cumulatively it’s a literal dead end...In fact, [opposition to Islamization] ought to be the Left’s issue. I’m a social conservative. When the mullahs take over, I’ll grow my beard a little fuller, get a couple of extra wives, and keep my head down. It’s the feminists and the gays who’ll have a tougher time.”

The welfare state in Europe and Canada allows the political system to focus on satisfying “secondary impulses,” such as long, legally mandated vacations and government-provided daycare, or for that matter, responsibility for the care of the elderly:

“But once you decide you can do without grandparents, it’s not such a stretch to decide you can do without grandchildren...[T]he torpor of the West derives in part from the annexation by the government of most of the core functions of adulthood.”

As he never ceases to remind us, there is an important distinction between Europe and America in these matters, or at least between Europe and Red State America. The distinction, he argues, results from a recent historical accident:

“It dates all the way back to, oh, the 1970s. It’s a product of the U.S. military presence, a security guarantee that liberated European budgets...[however]...[u]nchecked, government social programs are a security threat because they weaken the ultimate line of defense: the free-born citizen whose responsibilities are not subcontracted to the government.”

To quote an authority that Steyn does not, Immanuel Kant once said, “Even a nation of demons could maintain a liberal republic, provided they had understanding.” If we are to believe Steyn, however, Kant was wrong about the degree to which rights and procedures could replace morality and religion:

“[B]y relieving the individual of the need to have ‘private virtues,’ you’ll ensure that they wither away to the edges of society...Almost by definition, secularism cannot be a future: it’s a present-tense culture that over time disconnects a society from cross-generational purpose.”

One may note that this would apply only to a form of secularism with no metahistorical script for the future. Thus, a Marxist society (if it did not starve), or a eugenicist society, or a society intent on colonizing the solar system, might make the connection between generations. A society that was just a gas of atomic individuals today and looked forward to being just a gas of atomic individuals tomorrow, in contrast, would have neither a past nor a future.

Steyn is not just another talkshow ranter (though he does that, too) because he sometimes slows down enough to express skepticism about his own arguments. He asks: does the loss of religion explain the morbid state of advanced and even moderately developed countries? That might seem to be an explanation within the United States, with its relatively sterile and aging New England versus, say, the burgeoning Mormon population of Utah. But what about Europe, where the relatively religious South has even lower fertility rates than the godless North? One might also adduce East Asia: the populations of neither Japan nor South Korea are sustainable, but South Korea is a hotbed of evangelism of all sorts, while Japan is as secular as Sweden.

If God is not the answer, could Mammon be? America as a whole has a somewhat more free-market economy than most of Europe, but the most laissez faire economies in the world are in East Asia, and they have birth rates lower than most Western countries. We should also note, as Steyn does not, that the prolific Red State populations receive more in federal subsidies than they pay in taxes: those family values are paid for with farm subsidies and often rather paternalistic business practices. Steyn also points out that the major anglophone countries all have birthrates either at or near replacement level, but he does not suggest that the birth dearth could be solved with Berlitz courses.

* * *

Among the most delightful features of America Alone is the blurb on the front bookjacket from Prince Turki al-Faisal, former Saudi Ambassador to the United States: “The arrogance of Mark Steyn knows no bounds.” The prince perhaps has reason to be miffed. Though he does not say so in this book, Steyn elsewhere likens the increasingly successful Islamization of Europe to an opportunistic infection, made possible by the simultaneous collapses in cultural confidence and fertility. He has many worthwhile things to say in this regard; he is certainly right to underline the fantastic level of mendacity among the people in the West who speak for and about Islam. In academia and on the evening news, “sophistication seems mostly to be a form of obfuscation by experts.” As for official appreciation of the threat, “government ministers in Western nations spend most of their time taking advice on the jihad from men who agree with its aims.” The problem is not simply a matter of immigrants with new ideas changing the nature of their new homes: “Islam,” not just in the West but around the world, increasingly means a brutal and hegemonic version of Wahhabism. The evangelization of this doctrine is lavishly subsidized by the government of Saudi Arabia, support that ranges from establishing local Islamic schools in Canadian and American cities to building mosques the size of cathedrals in Europe.

Steyn recounts many anecdotes of allegedly moderate Muslims in Western countries who turned out to be recruiting or fundraising for terrorist groups, but far more disturbing are the proliferating incidents of homegrown jihadis turning against the lands of their birth:

“If you’re a teenager in most European cities these days, you’ve a choice between two competing identities – a robust confident Islamic identity or a tentative post-nationalist cringingly apologetic European identity. It would be a mistake to assume the former is attractive only to Arabs and North Africans.”

As Steyn notes, multiculturalism was instituted not to acquaint Westerners with other cultures, but to criticize the West. One effect of multiculturalism has been to absolve students of learning any hard information about other cultures. The result is that the West has disarmed itself in the most critical arena:

“We have no strategy for dealing with an ideology...groups with terrorist ties are still able to insert their recruiters into American military bases, prisons, and pretty much anywhere else they get a yen to go.”

Western attempts to influence the development of Islam are usually exercises in self-delusion, beginning with the preferred choice of interlocutors: “’moderate Muslims’ would seem to be more accurately described as apostate or ex-Muslims.” As for more long-range efforts: “We – the befuddled infidels – talk airily about ‘reforming’ Islam. But what if the reform has already taken place and jihadism is it?”

The Islamization of Europe is no longer hypothetical, in part because of the determination of the anti-discrimination police to enforce accommodation to what often extremist and unrepresentative Islamic groups claim to be Muslim sensibilities: “there’s very little difference between living under Exquisitely Refined Multicultural Sensitivity and sharia.” Worse than that is the casual use of violence and threats against European writers and artists, or even against ordinary persons: non-Muslim women in heavily Muslim neighborhoods increasingly go about dressed in something approaching Muslim fashion in order to avoid insult.

* * *

How, you may ask, can the United States prevent much of the world from turning to theocratic rubble, like Taliban Afghanistan? Steyn suggests these priorities:

"In World War Two, the sands of Iwo Jima and Okinawa where the main event, and rounding up the enemy sympathizers in Michigan was the sideshow. One can argue that this time around the priorities are reversed -- that bombing Baby Assad out of the presidential palace in Damascus is a more marginal battlefield then turning back the tide of Islamicist support in Europe and elsewhere. America and a select few other countries have demonstrated they can just about summon the will to win on the battlefield. On the cultural front, where this war in the end will be won, there’s little evidence of any kind of will.”

Nonetheless, he says that the military dimension cannot be neglected: the worst thing to do is nothing. Even if the war is chiefly ideological, there are state sponsors of the hostile ideology, and something has to be done about them, either militarily or through devastating economic sanctions:

“[E]very year we remain committed to 'stability' increases the Islamists’ principal advantage: it strengthens the religion – the vehicle for their political project – and multiplies the raw material...So another decade or two of ‘stability and the world will be well on its way to a new Dark Ages...But the central fact of a new Dark Ages is this: it would not be a world in which the American superpower is succeeded by other powers but a world with no dominant powers at all.”

It is true that the United States is held in light esteem in many of the world’s better magazines, and even does increasingly badly in public opinion polls taken in countries whose leadership is not necessarily committed to America’s destruction. Steyn attributes the darkening of the American image to elites like those in France, who are obviously weighing their chances in a semi-Muslim future, or to other well-meaning people who live in a fantasy world, where the most pressing issue facing civilization is rising sea levels. One might also suggest that, if the post-World War II international system is decomposing, America has become the screen onto which are projected the anxieties and ambitions aroused by the decomposition. To the jihadis, America is the godless Great Satan; to much of Europe, and even to many Blue State Americans, America is a theocratic Jesusland. As Steyn puts it: “America is George Orwell’s Room 101: whatever your bugbear you will find it therein; whatever you’re against, America is the prime example thereof.”

In reality, though, what much of the developed world is going to experience in the next 10 or 20 years is re-primitivization: “The Serbs figured that out – as other Continentals will in the years ahead: if you can’t outbreed the enemy, cull ‘em.” Where states fail, private parties can be expected to step in:

“If a dirty bomb with unclear fingerprints goes off in London or Delhi, it’s not necessary to wait for the government to respond. As in Ulster, there’ll always be groups who think the state power is too [timid] to hit back. So unlisted numbers will be dialed hither and yon, arrangements will be made, and bombs will go off in Islamabad and Riyadh and Cairo. There will be plenty of non-state actors on the non-Islamic side. In the end the victims of the Islamist contagion will include many, many Muslims.”

To combat the Islamic dimension of the threat (and remember, it’s chiefly a demographic problem) Steyn has suggestions of various degrees of plausibility, of which the most intriguing is the proposal to create a civil corps to engage Islamism ideologically:

“If America won’t export its values -- self-reliance, decentralization -- others will export theirs. In the eighties, Paul Kennedy warned the United States of ‘imperial overstretch.’ But the danger right now is of imperial understretch -- of a hyperpower reluctant to sell its indisputably successful inheritance to the rest of the world.”

Steyn wants to scrap the post-World War II international institutions and replace them with an alliance of capable and committed democratic powers. He says the Saudis have to be stopped from financing their worldwide religious underground. He would also like to develop technology that would end the dependence of the developed world on Middle Eastern oil: a fine notion, and none the worse for having been suggested a hundred times before.

This brings us to the cultural front. It is a good bet that Steyn is prophetic when he tells us, “By 2015, almost every viable political party in the West will be natalist.” And what should the platforms of these Mewling Infant Parties contain? “We need to find a way to restore advantage to parenthood in the context of modern society. Shrink the state. If you got four dependents, your taxable income is to be divided by five. We must end deferred adulthood.” And how do we do that? “We need to redirect the system to telescope education into a much shorter period.” The upshot, apparently, is that educated people should be educated faster so that they will normally have children while they’re in their twenties. We hear not one word that these proposals, though perhaps inevitable, will mean that the life courses of men and women will diverge again.

Steyn has given us a fiery polemical introduction to the crisis of the first quarter of the 21st century. However, we recognize the limitations of his analysis when we come to statements like, “The free world’s citizenry could use more non-state actors.” Consider his view of the moral of September 11, 2001:

“What worked that day was municipal government, small government, core government -- fireman the NYPD cops, rescue workers. What flopped -- big-time, as the vice president would say -- was the federal government, the FBI, CIA, INS, FAA, and all the other hotshot, money-no-object, fancypants acronyms.”

Stirring words, but counterfactual. In reality, on 911 the World Trade Center’s security service killed many of the people in the buildings by urging them to return to their offices after the attack was underway. The radios of the various emergency services were not able to communicate with each other. The firemen died needlessly by charging into burning buildings that local fire experts had declared indestructible. The epitome of effective local government, Mayor Rudolph Giuliani, was almost killed because the city’s emergency command center was located in the World Trade Center complex, despite the fact everyone knew the complex was the most likely target for a terrorist attack. The federal government did not cover itself with glory on that day, either, but at least the feds managed to close down and then restart the airline system within the space of a few hours.

Toward the end of the book, Steyn remarks, “You can’t win a war of civilizational confidence with a population of nanny-state junkies.” But the fact is that is how the world wars were fought and won, either by states that had extensive social-welfare systems, or that promised such systems to their citizens as part of the reward of victory.

It is certainly the case that the nanny state of the postwar developed world, with its therapeutic model of governance and its subsidy of victimhood, is a degenerate and unsustainable type of polity. But consider what it degenerated from: the war-and-welfare state of the era of the Great Wars that lasted from 1861 to 1945. The same powers of economic and political mobilization that allowed those wars to be fought permitted, indeed required, the domestic mobilization of education and public health and industry that allowed the governments of that explosive era to function effectively as military actors. Those governments commanded the most effective states that ever existed, and the mark of the societies they governed was precisely that, during the long lifetime from Lincoln to Churchill, the fortunes of the state and of the citizen increasingly merged. For a while, for just a few years, the mechanisms were in place to drive society in the service of urgent public policy.

The nanny state is a declension from that height of state fitness, and so is the libertarian state. In the face of an existential crisis, Churchill promised his people that their lives would be drenched in blood, sweat, and tears until victory was won. In the face of a comparable threat to civilization, George Bush made some fine public restatements of America’s now traditional Wilsonianism, but otherwise told the American people to support the tourist industry by visiting America’s beauty spots; while cutting taxes in the middle of two major wars, he reminded the taxpayers, “It’s your money.” Even if you accept the president’s economic model, surely it is obvious that such policies have no power to mobilize. The philosophy behind them diverts attention from the core functions of government, as the embrace of an open-borders policy by the Republican establishment illustrates. The small government that Steyn urges might be able to win conventional wars, but it would be unable otherwise to affect events. Increasingly, its irrelevance to the real problems, many of which Steyn has identified, would lose it the loyalty of its citizens. Thus we see that the libertarian state undermines patriotism quite as effectively as the European Union. They are parallel manifestations of the same phenomenon.

Many of Steyn’s specific proposals have merit, but they need a context he has not yet attempted to articulate. It might be possible for America to revive the Churchillian State within its own borders; maybe Japan could do that too, but neither Europe as a whole nor the nations within it could manage such a thing. In any case, it is not at all clear that even America should try. The work of regeneration needed to fight off the Muslim infection and save the threatened societies of the world from suicide cannot dispense with patriotism. However, it must be patriotism strengthened by some wider loyalty impervious to the subversions to which the Churchillian State proved subject.

Copyright © 2006 by John J. Reilly

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The Long View: Justice Oliver Wendell Holmes: Law and the Inner Self Book Review

The Long LifetimeAnd for the final member of the trimumvirate of the American century, Justice Oliver Wendell Holmes, Jr.

The short-hand John used for Holmes and the times he lived through was "The Long Lifetime". Holmes was born just before the American Civil War, and lived to see the Great War. Most of the decisive events in modernity occurred during his lifetime, and he caused at least a couple of them personally.

Holmes is known best for his oracular opinions from the bench, but he is also one of the foremost scholars of American law. Holmes set Constitutional Law on the course it still follows, although in practice that course has come to subvert what Holmes was trying to do.

The common law and the natural law had become an abomination in Holmes' time. They were used to justify the exploitation of workers and the destruction of the environment in the name of contract and property rights with which the legislature could not interfere. Holmes great mission in life was to find a rational and defensible legal philosophy that could correct these abuses.

He did precisely that, formulating a doctrine of legal pragmatism that holds great influence. The law is the embodiment of the will of the sovereign, which in the United States of his time was the People through the mechanism of the Legislature. There is no eternal truth to be found in the law, only the felt need of the moment.  However, it was also a doctrine of legal positivism, that held that that anything not specifically forbidden by the Constitution was permissible to the Legislature. The "discovery" of a right was wholly alien to the law as Holmes saw it. The text of the Constitution mattered very much to him. In a sense, both the current Left and Right in American law are descendants of Holmes.

With Teddy Roosevelt, who nominated him to the bench, and with Woodrow Wilson, whose policies he helped implement, Justice Holmes fixed us on the path upon which we find ourselves. Everything since has been the working out of the implications of what those men wrought.

Justice Oliver Wendell Holmes: Law and the Inner Self
by G. Edward White
Oxford University Press, 1993
$18.95, 628 pp.
ISBN: 0-19-510128-6

Justice Faustus

 

Future historians may well decide that the decisive years in the life of Western civilization were the period from around 1860 to 1945. In retrospect, for instance, the string of great wars from the American Civil War through the end of World War II seems almost like a logical progression, one that may have settled permanently the geopolitical structure of the West. Perhaps more important, those were the years when the dreams of the Enlightenment achieved tangible form. Democracy became a universally accepted principle, as did wholly secular models of human history and of the natural world. ("The Origin of Species" was published in 1859.) Some of these concrete forms were a little disconcerting, of course. Socialism, a logical development of Rousseau's General Will, in practice came to mean the sort of command economy created by Germany and Great Britain to fight World War I, and which Lenin simply made permanent. The year 1945 was no more the end of history than was 1989. However, far more than the latter date, that year marks the point by which certain choices had been made. The molten possibilities of the Enlightenment had become frozen in forms that would be definitive of the future. Everything that has happened since, perhaps, has been just the working out of the implications of those forms.

The decisive choices thus were made during what amounts to a single, long lifetime. Oliver Wendell Holmes's long adult life almost matched it. In the field of American jurisprudence, many of the final forms are his. He, perhaps more than anyone else, broke American legal thinking of its natural law habits and enshrined positivism as the only respectable philosophy of law. He quite literally wrote the book on legal pragmatism. He provided the theoretical framework that made it possible for the federal government to create the kind of "soft" command economy typical of twentieth century states. He made it possible for labor unions to carry out class war in the courts rather than in the streets. He turned the First Amendment's freedom of the press clause from a dead letter to a premise of American culture. Also, he was never what he seemed.

I picked up this book with some trepidation because the subtitle, "Law and the Inner Self," suggested that I might be in for another long, tendentious psychobiography. The fear was misplaced. This is a lawyer's book, written by a legal historian at the University of Virginia. (Among other accolades, it won the America Bar Association's "Silver Gavel Award.") The biography is primarily concerned with the subject's ideas, not his supposed mental problems. With the one exception we will get to in a moment, the biographical material is well integrated into this story. Particularly enlightening is the discussion of the probable effect which the young, admiring Progressives associated with the magazine, "The New Republic," had on Holmes's views regarding freedom of speech issues. Malicious persons have sometimes suggested that the mark of a legal mind is the ability to see distinctions that aren't there, and sometimes it seemed to this reviewer that White was finding contradictions in Holmes's court opinions that could have been resolved by a slightly less suspicious reading. Well, these are the '90s, after all, so a bit of deconstruction is only to be expected. Still, the book provides a panoramic window into one of the great transformations in the history of jurisprudence.

Born in 1841, Holmes was the contemporary and friend of Henry Adams, William and Henry James, and other post-Transcendental New England luminaries he was destined to outlive by a decade or more. He was the son of a famous Boston Brahmin, Dr. Oliver Wendell Holmes, Sr., who abandoned medical practice for a successful career as a lecturer and essayist. (Among other accomplishments, he coined the term, "anaesthesia.") Holmes the younger served with distinction in the Civil War. There may have been other junior Union officers who fought in the Seven Days Peninsular Campaign, at Antietam, and (in a skirmish) near Chancellorsville and lived to tell about it. Still, this particular long-boned Yankee seems to have been singularly indestructible. After his third wound, he took the hint and applied for a staff job. This did not get him wholly out of harm's way; the narrative in this book suggests that the only time he was brave to any purpose in the course of the war was when he outrode a Confederate patrol while carrying a staff message. However, the transfer did at least preserve him from leading an infantry platoon during the Battle of the Wilderness. This, and the fact that he did not reenlist when his three year enlistment ended in the summer of 1864, leads White to speculate at length that Holmes suffered from "survivor guilt" for the rest of life. Maybe he did. However, if so, it was one of those insidious syndromes whose chief symptom was the total suppression of any direct evidence for it in the subject's later life.

In any event, Holmes survived to become a prominent member of the Massachusetts bar and, on his numerous vacation trips to Europe, a notable ornament of London society. (Predictably, the young Henry Adams at the American legation helped to orchestrate the introductions). White is cautiously agnostic about Holmes's private life, though we are treated to quite a lot of flirtatious correspondence, particularly with one Lady Castledown, a member of the Irish "Ascendancy." Homes married Fanny Bowditch Dixwell in 1872, apparently happily for both parties. She was a somewhat reclusive woman who declined to accompany Holmes on all but one or two of his European excursions. They never had children, a fact that probably requires no explanation beyond the fact they married in their early thirties and Fanny suffered from bouts of scarlet fever. Holmes was, as we will see, a great believer in eugenics and family planning, but he was unlikely to have been of the opinion that his were among the bloodlines that needed to be discontinued.

There are two traditional ways for an ambitious legal practitioner to make a name for himself: politics and scholarship. Holmes, who was very ambitious indeed, embraced the latter with fierce determination. In 1881 Holmes published "The Common Law," based on the Lowell Lectures he had delivered the year before. Though more praised than read, the book is unique in being simultaneously a history of the common law of England and America, a theory of why it had evolved as it had, and a philosophy of what law is. The next year he joined the Harvard law faculty, a special endowment having been created to support his professorship. To the delight of Harvard-haters for all time, he decided in the course of an afternoon in late 1882 to abandon Harvard in order to accept the unexpected offer of an appointment as an associate justice to the Supreme Judicial Court of Massachusetts. His Harvard colleagues found out about his decision from the newspapers. He served on that court for 20 years, rising eventually to be Chief Justice. He turned out short, compelling, but sometimes rather Delphic opinions on the nut-and-bolts questions that take up most of any court's time.

President Theodore Roosevelt, apparently mislead by the militaristic rhetoric of Holmes's extra-judicial statements into believing Holmes to be a congenial jingo, appointed him to be an associate justice on the United States Supreme Court in 1902. Always hardworking and never a difficult colleague, he was a respected but slightly obscure figure until the 1920s, when he became the darling of Progressives, civil libertarians and the labor movement. In his 80s, he became a national figure for the first time. Then and for decades afterward, he was the "Yankee from Olympus," the "great dissenter," even "..the greatest legal intellect in the history of the English-speaking world," in the opinion of his Supreme Court successor, Benjamin Cardozo. With his brilliant epigrammatic prose style and fearsome moustaches, he joined Mark Twain and Benjamin Franklin as an archetypical American.

Though he looked like God and seemed nearly old enough for the job, he was not actually immortal. His work on the court began to fall off in his last judicial term or two, perhaps because of a slight stroke. He was prevailed upon to retire early in 1932, though he remained perfectly lucid for most purposes until his death in 1935 after a brief illness. Fanny, his wife of 57 years, had died in 1929. He often seemed lonely in the final years, though throughout the period he was continually attended by a parade of the Great and the Good from Harvard and Washington, including FDR himself. He was also attended by a law clerk, a young Harvard law graduate, even after he had ceased to serve on the court. The hiring of Supreme Court law clerks, usually law school graduates eager for this most prestigious of post-graduate work, was another of his innovations.

If the legal systems of Europe based on Roman law are like the French language, all codified by some Academy and with, in principle, a right answer to every stylistic question, the common law of England grew up rather like the English language. Some authorities were more prestigious than others and there were general points on which everyone could agree, but the common law, like the language of the people who lived under it, allowed for numerous decision-makers and incremental innovations, which might survive in practice or be rejected. Judges made the common law, basing their opinions on the opinions of other judges, citing principles so ancient that the memory of man ran not to the contrary. Even today, when most important areas of law have been summarized in civil and criminal codes, still the codes usually just adopt one or another set of common law rules. And when judges in common law countries interpret those statutes, they look first to the opinions of other judges rather than at the text itself.

For judges in England and the United States before the middle of the last century, the idea that the same "common law" still somehow applied in both countries, and indeed in every state of the American union individually, did not pose a conceptual problem. When the American colonies removed themselves from the jurisdiction of the British Parliament, it never occurred to them that they might be removing themselves from the sway of the common law. Parliament had not made the common law, though of course it had influenced the common law's development throughout history. The common law was never thought to be coincident with the natural law, but the English jurists tended to assume that it had been informed by the natural law. Judges, guided by right reason, could develop existing common law rules to better conform to the natural law. This was how the judge Lord Mansfield finally abolished slavery in England in the late eighteenth century (in the 1830s parliament got around to outlawing it in the colonies). The judges who did this sort of thing said they were not making law, but discovering it. The common law was complicated and often obscure, it rules sometimes manifestly unjust. However, lawyers trained in the common law tradition seemed to always have at the back of their minds the assumption that the common law was the real law. What parliaments and legislatures might decree from time to time would of course be obeyed, but the statutory law that tried to change common law was strictly and suspiciously construed.

When Holmes was a young man, there was no lack of philosophers of jurisprudence, such as Austin and Bentham, who dedicated their careers to fighting the concept of natural law. They looked on law as simply the command of the sovereign, or of judges representing the sovereign, or of the judges themselves. This approach to the law is known as legal positivism. It arose because the very idea of natural law was becoming incomprehensible to men who lived after Hume and Kant. Natural law, after all, is supposed to be "deontological," that is, somehow derivable from the nature of things. Those philosophers, however, had proven to their own satisfaction that you could not know about the "nature," the essence, of anything. All you could know was how things acted. There are two ways to take this proposition. You could, like the early German Idealists and like the New England Transcendentalists, draw the lesson that, since your knowledge of "how things acted" was simply a matter of sense perception, then all that really existed (as far as you can tell) is the perceptions in your own mind. Alternatively, you might forget about the mind entirely and just concentrate on how things (including people) act. The result is behaviorism.

Holmes himself is an example of a man who started as an Emersonian Idealist and followed the natural trajectory of this school into behaviorism. The halfway house on the journey is the philosophy of pragmatism, and Holmes was there at the creation. After the Civil War, he was a member of the Metaphysical Club, which included both William James and Charles Peirce, the latter usually regarded as the father of pragmatism. In essence, pragmatism is just another form of idealism. A "problem," in the pragmatist scheme of things, is simply the perception of some incongruity. If you arrange matters so that you no longer have this perception, then the problem is solved. If the new arrangement does not conform to your rules of logic, then there is something wrong with your rules. The direct effect of Peirce on Holmes has been much debated, and some writers have probably exaggerated it. Still, the philosophy of "The Common Law" is pragmatic in the strict sense.

In the first few lines of the book, Holmes lays down the principle that "[t]he life of the law has not been logic: it has been experience." The common law is not a fixed body of doctrines and the syllogisms derived from them, but an organic structure that has grown up in response to "the felt necessities of the time." The way to evaluate a law, in other words, is to measure the degree of subjective satisfaction it gives the community. By the time of his essay "The Path of the Law," published in 1885, he had completed the evolution to a behaviorist theory of law. Whatever you may think of Holmes's jurisprudence, "The Path of the Law" is an unambiguously great exercise in legal philosophy; certainly it withstands the test of time much better than "The Common Law." Laws should be written, we learn, from the standpoint of "the bad man," he who will do the absolute minimum necessary to avoid the sanctions of his neighbors. In other words, it must create objective standards, that do not depend on the personal virtue or goodwill of the citizens. When the law seeks to determine the "intent" of someone who committed an act for which he is on trial, it is not seeking to determine whether he meant to do good or harm. The law seeks to know only whether he knew what the results of his action would be. The inquiry can be made only by considering the defendant's observable behavior.

Holmes had a flare for dramatic expression, but his even his most extravagant pronouncements usually had a deal of common sense behind them. In the area of contract law, for instance, behaviorist jurisprudence meant that you did not have to guess whether there had been a "meeting of minds" between the parties to a contract: all you needed to do was determine what they said they had agreed to. If they never said the same thing, then there was no contract. Holmes sought not just to make the law predictable, but its burden light. In the law of torts, he used every opportunity to limit the liability of defendants. To some extent, this was because he believed limited liability was one of the "felt necessities of the time." Businesses could not grow if their every action threatened to incur a law suit. More important, perhaps, was the fact that his legal philosophy left no possible source of duty from one person to another except rules of behavior enunciated by the state. Thus, if the state did not create a cause of civil action, then normally the courts should not supply one.

In 1917, Holmes gave memorable expression to modern legal positivism in his Supreme Court dissent to the majority opinion in Southern Pacific v. Jensen, which held that a seaman injured in port should not receive the benefit of New York State's workman's compensation law. The general principles of maritime law did not allow for a seaman to receive compensation under the circumstances, and the majority believed that this principle should govern, rather than the statute. Holmes thought otherwise: "The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi-sovereign that can be identified." Derision for that "brooding omnipresence" has proven irresistible to American law professors ever since, but like most forms of skepticism, this thesis turns out to be incoherent if you look at it closely. To say that law is "the command of the sovereign" is tautological, since a sovereign is a legal entity. Moreover, it is an extremely awkward way to look at legal systems, such as those of the United States, where the actual sovereign tells you to go ask a judge or somebody if you want to know what the law is. On the other hand, the idea of an autonomous system of rules that can create order spontaneously, which is what the common law is supposed to be, is actually quite reminiscent of most schools of the philosophy of mathematics in the twentieth century. Many mathematicians, indeed almost all the great ones, believe that they "discover" mathematical entities, not that they make them up. No woolly-pated judge at a shire assize could have quarreled with the principle.

It is wrong to think of legal positivism as growing from a desire to cut off the law from the transcendent, or for that matter as part of a plot to make the world safe for industrial capitalism. The common law jurisprudence in the America of Holmes's early career had arguably become a force of darkness that all right-thing people were holden to combat. Many people at the time hoped to turn law into a "science," in the sense of a coherent system of statements. However, such people, notably Christopher Langdell of Harvard Law School, seemed to think that the common law was wholly self-referential. The "formalist" period of American law that resulted from this philosophy was not pretty. Judicial decision-making became more and more a mechanical process of finding precedents and applying them, whether or not the result made sense in the context of modern industrial conditions. "Natural law" made its appearance most conspicuously in the discovery by the courts of wide-ranging "rights" to contract and to property. Under this logic, legislatures were found to lack the power to interfere with the right of employers and laborers to bargain for what wages and hours they chose, or for municipalities to interfere with the right of manufacturers to perform whatever industrial processes on their land that the manufacturers saw fit. This view was eventually adopted by the U.S. Supreme Court, by way of the Due Process clause of the Fourteenth Amendment. This constitutional doctrine became known as "substantive due process." As many commentators have noted, it bears more than a little resemblance to the philosophy of "reproductive rights" that the court began to discover in the Constitution beginning in the 1960s, beginning with Griswold v. Connecticut. Holmes fought against this approach throughout his career. It was only after his retirement, when the court was threatened with the effective loss of the power of judicial review if it kept blocking FDR's New Deal legislation, that his point of view prevailed.

Holmes was an honest Social Darwinist. He believed that class war was a fact of life, just as was war between nations. He also thought that unions and labor legislation did nothing to improve the common good. As he remarked in his dissent in Plant v. Wood while he was still a Massachusetts judge: "The annual product, subject to an infinitesimal deduction for the luxuries of the few, is directed to consumption by the multitude, always. Organization and strikes may get a larger share for the member of the organization, but if they do, they get it at the expense of the less organized and less powerful portion of the laboring mass." One will find few purer expressions of Malthusian economics in American law. However, he dissented in that case because he found no reason the union in question should not organize a boycott, which the plaintiff was trying to stop. No statute forbade a boycott, and the common law was ambiguous. In such a situation, the role of the courts was simply to guarantee a fair fight. When the state itself sought to intervene in labor relations, of course, he heard his sovereign's voice and hurried to obey.

One of Holmes's most famous opinions is his dissent in Lockner v. New York, decided in 1905, in which the Supreme Court struck down a maximum hours law for bakers. The court based its decision on a "liberty of contract" of their own manufacture. There is, of course, a provision in the U.S. Constitution, Article I, Section 10, forbidding the states to pass laws that "impair contracts," but any fair reading of the history of that provision will show that the Founders were mostly concerned about states cancelling the debts of farmers during bad years. (Even that provision has been loosely interpreted to allow for debt moratoria.) In any event, Holmes was having none of it: "...the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics," he harrumpfed magisterially. (Holmes's Mathusianism, incidentally, came by way of Spencer; he got around to reading Malthus himself about ten years after Lockner.) In Holmes's scheme of things, if there was no constitutional provision forbidding the government to do something, then the people, through their elected representatives, could do pretty much any damn fool thing they pleased.

Thus, if the people pleased to require the sterilization of unsatisfactory persons, Holmes saw no reason to object. Certainly the Constitution had nothing to say about it. Indeed, eugenics was the only one of the Progressive Era reforms that positively engaged his enthusiasm. He does not seem to have had any more than usual of the racial prejudices common to his place and time; probably he had rather less. It may be, as White suggests, that his interest in eugenics did not arise from a fear of drowning in the rising tide of the colored races. Rather, he had a lively sense that human nature itself was flawed. Under the circumstances, the best that the law could do was referee a fair Darwinian fight. If the fight were ever to end, it would have to be because the nature of the combatants had improved.

Be this as it may, it is at least clear that Holmes's views on the powers of government in this area require no special explanation; they are perfectly consistent with his views on the powers of government in the economic sphere. His opinion in the 1927 case, Buck v. Bell, upheld a Virginia statute that was being used to sterilize a woman who may or may not have been retarded, after a hearing process that looked exemplary on paper but which in practice was apparently rather summary. The opinion is classic Holmes. He uses the argument that "the greater power includes the lesser," always one of his favorites. Since the woman could have been drafted and sent into combat, he reasons, surely the state may require the lesser sacrifice of sterility. The epigrams are memorable. "Three generations of imbeciles are enough," he says about the plaintiff's inaccurately recounted family history. "The Bill of Rights is not a suicide pact," he affirms, to the plaudits of all progressive people everywhere. The truly infuriating thing about the opinion is that it is probably right. The Constitution does not guarantee reproductive rights, it does not forbid either sterilization or abortion. The Founding Fathers did not feel it necessary to address such matters. They thought better of their descendants than to suppose it might be necessary.

The only area in which Holmes was at all inclined to limit the power of the state was in questions of freedom of speech and the press. This willingness earned him his reputation as a civil libertarian. He would not always have merited the label. In the rare instances when he had to address the matter as a state judge, he held to the conventional view that the only real free speech rights were those provided under common law. This meant that the courts could not exercise "prior restraint," that is, to forbid someone from speaking or publishing. However, once you had your say, you could be fined or imprisoned for saying things that were inconvenient or unpopular, even if they were true. The venerable offense of "criminal libel" excited no animus in the middle-aged Holmes. Once on the U.S. Supreme Court, he at first saw little reason to change his mind. For one thing, the Court did not quite make up its mind until the end of his second decade as a justice whether the First Amendment, which by its terms applies only to the federal government, had been "incorporated" by the Fourteenth Amendment so as to apply to the states. Even when it was thought to apply, it was assumed to be simply declaratory of the very limited protections afforded by the common law.

Professor White, as I noted, lays out the history of Holmes's friendships with Felix Frankfurter and Harold Laski and the rest of The New Republic crowd to show how their ideas influenced Holmes around the time of the First World War and after. Certainly Holmes was disturbed by broad new laws forbidding speech that tended to "interfere with recruiting" or that advocated the overthrow of the government at some indefinite point in the future, or that otherwise hinted you might be up to no good. He began to grope for a principle that would be consistent with the rest of his ideas about the power of government. His first solution was the "clear and present danger" test. He tried, without much luck, to get the Supreme Court to agree that you could say or print pretty much anything you wanted that did not seem likely to start a riot. This, of course, is really just a rule about evidence, it is not a definition of a personal right that an individual could assert against a hostile government. What he picked up from his young friends was the notion of "the marketplace of ideas" as something necessary for the conduct of a democracy. The courts had to make sure that even bad ideas got a hearing, because otherwise there was no way to be sure good ideas might not be suppressed by accident. The First Amendment was thus not a dead letter after all, but a clear textual restriction on the power of government.

Professor White finds that this defense of freedom of speech was contradictory, an anomaly in Holmes's positivistic universe. He points out that Holmes's theory of government was that the majority in society will always work its will eventually, yet here was Holmes creating a "fundamental principle of democracy" that was rigidly anti-majoritarian. This assessment, I think, fails to appreciate the true underlying unity of Holmes's thought throughout his career. The justice's late championship of unfettered expression was not a break with his ancient pragmatism. Rather, it was its final flower, the highest good to which the intersubjective mind can attain. Fundamentally the marketplace argument is not new: a version of it was Milton's thesis in favor of free speech in the "Areopagitica." However, for Holmes, who lived in a post-metaphysical intellectual environment, the notion could take on a whole new significance. The marketplace of ideas was as close as Holmes's philosophy would let him come to the idea of truth. As a pragmatist, he had rejected the idea of absolute truth, but he also venerated the search for it. The best he could hope for was a free exchange of ideas, what Richard Rorty would later call "conversation." The transcendent was inaccessible, perhaps, but it could be approximated in this world by a perpetual dynamic stability.

Readers of Goethe's "Faust" will recognize that these were the very terms on which Faust was damned. The devil had agreed that he would not carry Faust to Hell until Faust found something in which his heart could rest, some moment to which he could say, "stay, you are so fair." At the end of his restless career of ever-growing power and knowledge, Faust finally conceives of a world he could love. It is world of perpetual struggle, in which mankind and nature achieve a kind of stability through their unceasing efforts to overcome each other. It is an eternal conversation of antagonistic forces, a marketplace of will that never closes. When Faust embraced this vision, the devil's bill came due. He had no reason to complain. The clarity of their contract was all that any judge might have wished.

 



This article originally appeared in the January 1996 issue of Culture Wars magazine. Please click on the following line for more information:

Copyright © 1996 by John J. Reilly


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