Constitutional Government and Public Debt: The Long Hand of the Dead

In a celebrated 1789 letter to James Madison, Thomas Jefferson declared what he took to be a self-evident truth: “‘that the earth belongs in usufruct to the living’: that the dead have neither powers nor rights over it.” The most famous implication Jefferson drew from this principle is that no constitution can legitimately bind future generations. Having calculated the rough length of each generation to be 19 years, he proposes that all laws and constitutions sunset automatically so that a new generation may be empowered to legislate for itself:

no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, & what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, & consequently may govern them as they please. … Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right. It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly & without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal & vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.

Richard Tuck points out in Active and Passive Citizens (pp. 60-61) that Condorcet made more or less the same argument in his “On the necessity of a ratification of the constitution by the citizens.” He proposed that all constitutions sunset automatically after 20 years:

Any law accepted by the plurality of the inhabitants of a nation can be taken as having unanimous support: given the need to accept or to reject the law and to follow the plurality opinion, anyone who rejects a proposed law will already have decided to abide by it if it is supported by the plurality … But such approval becomes meaningless as soon as these individuals cease to form a plurality of the nation … I consider it very important to set a maximum period for which a law can remain irrevocable. People no longer dare claim that there can legitimately be perpetual laws.

In his reply, Madison offered the following objections to Jefferson’s proposal. First, a constitution subject to regular sunsetting would be too unstable for responsible government:

Would not a Government so often revised become too mutable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to the most rational Government in the most enlightened age? Would not such a periodical revision engender pernicious factions that might not otherwise come into existence? Would not, in fine, a Government depending for its existence beyond a fixed date, on some positive and authentic intervention of the Society itself, be too subject to the casualty and consequences of an actual interregnum?

Second, might not the living owe duties of obedience to the dead in virtue of the good benefits they have inherited?

The improvements made by the dead form a debt against the living who take the benefit of them. This debt cannot be otherwise discharged than by a proportionate obedience to the will of the Authors of the improvements

Third, why couldn’t continuing obedience derive from a kind of Lockean tacit consent?

And fourth, would not legal instability benefit, surprisingly, the wealthiest citizens at the expense of the poorest?

The frequent returns of periods superseding all the obligations depending on antecedent laws and usages, must be weakening the reverence for these obligations, cooperate with motives to licentiousness already too powerful; and that the uncertainty incident to such a state of things would on one side discourage the steady exertions of industry produced by permanent laws, and on the other, give a disproportionate advantage to the more, over the less, sagacious and interprizing part of Society.

Some of these points were also made by Madison in a pair of Federalist Papers. In Federalist 49, he rejects Jefferson’s proposal in the Notes on the State of Virginia to call a new constitutional convention whenever so favored by two of the three branches of government. He again appeals to the need for reverence for the laws:

as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.

In Federalist 62, he offers the following critique of institutional instability:

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY.

(As an aside, it is striking that Madison objects to constitutional/legal volatility both on that grounds that such volatility undermines property rights and because legal uncertainty allows the wealthy to exploit the laws to their private advantage). 

This is an interesting debate here over the legitimacy and desirability of constitutional stability. The Jeffersonian position continues to inspire some democratic theorists. Tuck, for example, favors generational referenda on fundamental constitutional questions (Brexit, for example). My friend Leah Downey similarly argues that the Federal Reserve’s charter should automatically expire at some regular interval (the original practice was a 20 year charter). Such a requirement for regular, legislative rechartering would allow for iterative democratic control over monetary policy.

But another feature of Jefferson’s letter is less often discussed. The constitution is one means by which the dead can tyrannize the living. But Jefferson’s letter is equally concerned with intergenerational public debt.

suppose that Louis XIV and XV had contracted debts in the name of the French nation to the amount of 10,000 milliards of livres, & that the whole had been contracted in Genoa. …. Must the present generation of men have retired from the territory in which nature produced them, & ceded it to the Genoese creditors? No. They have the same rights over the soil on which they were produced, as the preceding generations had. They derive these rights not from their predecessors, but from nature. They then and their soil are by nature clear of the debts of their predecessors.

Again suppose Louis XV & his contemporary generation had said to the money-lenders of Genoa, give us money that we may eat, drink, & be merry in our day; and on condition you will demand no interest till the end of 19.5 years you shall then for ever after receive an annual interest of 12⅝ per cent. The money is lent on these conditions, is divided among the living, eaten, drank, & squandered. Would the present generation be obliged to apply the produce of the earth & of their labour to replace their dissipations? Not at all.

While it is true, Jefferson notes, that private debts on land do descend from one generation to the next, that is because of positive not moral law. The state has the right to set such laws as they relate to the inheritance of property. But no comparable sovereign has the legitimate authority to set such laws among nations OR generations:

between society & society, or generation & generation, there is no municipal obligation, no umpire but the law of nature. We seem not to have percieved that, by the law of nature, one generation is to another as one independant nation to another.

While there may be good prudential reasons for republican France to honor the debts incurred by the Ancien Regime (just as there were good prudential reasons for the new national government in America to assume the war debts of the several states), there is no binding natural duty to pay these debts. It should be said that Jefferson muddies the water a bit by discussing the inheritance of public debts from the French monarchy to the French Republic. But by insisting that generations relate to one another as foreign countries, he makes clear that the same analysis applies to intergenerational debt incurred by the Republic.

In line with a long tradition of republican hostility to public debt, Jefferson goes on to warn that a reliance on credit for public financing will fuel the “spirit of war.” Kant, for example, makes the same point in Perpetual Peace, whose fourth article prohibits debt-financed military expenditures.

It is rare today to hear Jeffersonian democratic critiques of public debt. But the logic continues to make sense. Public debt is a means of funding today’s spending with borrowed money. The duty to repay that debt constitutes a serious (potentially crippling) constraint on future governments, thus constraining their democratic power to set economic policy. Libertarians and conservatives often do critique public debt in terms that sound a bit like this. But their objection does not tend to center on the democratic illegitimacy of binding the future. To the contrary, people like Hayek and Buchanan favor constitutional constraints on both the present and the future to block what they take to be imprudent economic conduct. And of course Burkean conservatives revolt at the suggestion that children relate to their parents as foreign nations.

Wolfgang Streeck probably comes closest among contemporary theorists in offering a Jeffersonian democratic critique of public debt. In Buying Time and How Will Capitalism End?, Streeck traces the evolution of the traditional “tax state” into the “debt state” and finally into the “consolidation state.” The political difficulty of tax-financed welfare spending combined with the availability of cheap credit from global financial markets led to a dramatic growth in public debt since the 1980s. Those incentives in turn allowed for large debt-financed public spending consistent with an increase in economic inequality:

The rise of the debt state took place simultaneously with a general increase in economic inequality and was closely linked to it. The declining taxability of capitalist economies in the course of ‘globalization’ produced a rising demand for credit on the part of governments, while tax cuts for the increasingly rich increased the corresponding supply. As a result, the debt state found it convenient to substitute credit for ever more difficult-to-collect taxes, to the extent that citizens remained willing to consider government bonds a safe investment. States going into debt allow citizens with high incomes to keep their money instead of having it confiscated, invest it safely, collect interest on it, and pass it on to their children … the rich in rich democracies are not necessarily opposed to government debt since the alternative may be higher taxes, especially for them. (How Will Capitalism End? p 121)

While Streeck’s analysis is consistent with some public-choice models of political behavior, he rejects anything like Ricardian equivalence between debt and taxation. It is easy to see why absent Ricardian equivalence these debt states tend toward fiscal crisis. Streeck argues that in response to that crisis, debt states embrace fiscal discipline and austerity to secure the confidence of creditors in financial markets and supranational institutions.

Streeck’s account of this transformation raises obvious problems for democratic sovereignty. The tax-state is able to take clear democratic responsibility for its choices of public spending. The debt-state pursued the promise of cheap public finance without the need to make difficult political choices surrounding taxation. Yet the result, the consolidation state, is now constrained by impersonal credit markets and unable to enact anything like the public will. It is for this reason too that technocratic bodies like independent central banks take on newfound primacy in matters of economic governance. I take all this to be a modern update of a Jeffersonian, democratic critique of public debt. Like an entrenched constitution, the argument goes, credit-financed public spending illicitly chains the future.

Henry Jones Ford on the Monarchical Presidency

In his 1919 Presidential Address to the annual meeting of the American Political Science Association, Henry Jones Ford lays out the standard progressive critique of America’s constitutional situation. The nation’s political institutions have fragmented power to such a degree that responsible, representative government has become impossible. The separation of executive from legislative power and the decentralization of the legislature itself undermine the people’s ability, through elections, to take decisive control of the nation:

Matters may be so arranged that elections can do no more than make changes among the players in the same old game. The result then illustrates the French proverb that the more change you have the more you get of the same thing. Whichever party wins at the polls, jobbery in office and traffic in legislation will still continue. Party succession then tends to form what in European politics is known as the Rota, and in American politics as machine rule. The great consideration then will be not what will benefit the people, but what will please the districts, and cadging for patronage and sparring for points in the electioneering game will become the principal occupation of legislative bodies (9).

In typical progressive fashion, Ford demands greater presidential control over the legislative process and insists on granting the president exclusive control over political appointments. All this is consistent with the broad constitutional vision most famously set out by Woodrow Wilson in Congressional Government (1885) and Constitutional Government (1908), and indeed Wilson was himself deeply indebted to Ford’s 1898 The Rise and Growth of American Politics. (I believe Wilson was so impressed with Ford that he hired him to teach at Princeton).

I want to flag two pieces of Ford’s Presidential Address of particular interest: (1) His identification of the presidency with the democratic triumph of absolute monarchy over feudal aristocracy; and (2) His invocation of Joseph Story in warning of legislative corruption and irresponsibility.

1. The Historical Narrative

Ford provides the following sketch of modern European state formation:

It is a commonplace of history that the people of Europe were rescued from the manifold oppressions of feudalism by the development of absolute monarchy; but it is not sufficiently remarked that this was a popular process. The diets, parliaments and assemblies that abounded in the Middle Ages were regarded by the people as organs of class privilege and rapacity, and hence the people energetically supported any movement to wipe them out. Far from absolutism being the result of royal usurpation, kings were simply dragged along by the force of the movement. Powers were forced upon them that they were reluctant to accept. … No fact of European history is better established than that absolute monarchy was erected by public opinion and its burden of responsibility was forced upon kings by the insistence of the people. If there is now an extensive revolt of popular sentiment against legislative assemblies, it is no new thing, but is the revival of a feeling that was for centuries the strongest political force (7-8).

In broad strokes, this juxtaposition of absolute monarchy/democracy/civil liberty against medieval aristocracy/feudalism/oppression is familiar. We find such arguments in the great Scottish Enlightenment thinkers, Adam Smith and David Hume. I have written a pair of articles arguing that Smith, for example, identified the triumph of liberty with the alliance between the king and the people against the predatory, baronial aristocracy. 

My advisor, Eric Nelson, has an excellent article showing how these Scottish Enlightenment arguments (which derived from Stuart royalist historiography) were adopted by major American figures in the 1770s and 1780s. Alexander Hamilton, for example, appears to quote Adam Smith in his description of “feudal anarchy” in Federalist 17. The broad narrative—monarchical triumph over the feudal aristocracy in service of securing popular liberty—is deployed to justify a centralized state and a powerful presidency. William Selinger extends this argument, showing how thinkers from Jean Louis De Lolme to Alexis de Tocqueville to John Stuart Mill all offered parallel accounts of the “monarchical origins of modern liberty.” Ford heavily relies on Mill for his account of representative government, so he may be just the next generation to inherit the argument.

(Tocqueville, it should be said, offers a version of that narrative with an inverted normative valence. He famously identifies the radical democracy of the French Revolution as an extension of the state-building, centralizing project undertaken by Louis XIV. But his point there is to defend the medieval model of polycentric authority against the uniformity established by both a nationalized, bureaucratic monarchy and a nationalized, bureaucratic democracy. He also praises the medieval French aristocratic constitution for preserving a kind of local democracy akin to that of his celebrated New England township).

The broad shape of this argument is familiar. That said, I don’t believe I have seen it often made by American political thinkers from the late nineteenth and early twentieth centuries. Though it is common for progressives to celebrate presidentialism and attack legislative corruption, I was surprised that Ford makes the argument with this particular historical narrative in mind. It is striking to see the president so directly identified with absolute monarchy and the congress with the abusive feudal aristocracy. His presentation also breaks from earlier articulations—at least in emphasis—by insisting on the essentially democratic nature of absolute monarchy. It is one thing to say that the only way to secure popular liberty was to establish a powerful king who could crush the rapacious barons. It is another thing to say that quasi-democratic public opinion compelled European kings to seize this power.

The argument appears to recur throughout Rise and Growth, where Ford notes that “the abolition of serfdom, the removal of many feudal oppressions, the betterment of social conditions, and the enlargement of liberty of thought were derived from the exercise of royal power” (22). And again: “the main instrument for the destruction of the feudal characteristics which deface our form of government will be executive authority” (364). In that latter discussion, Ford clarifies that our other institutional arrangements will keep presidentialism from collapsing into despotism.

2. The Joseph Story Reference

Drawing on Mill, Ford insists that America must unite legislative and executive power:

There must be a direct connection between the executive department and the representative assembly. The proper function of a representative assembly is to exercise control over the government in behalf of the people. It is a board of directors whose business is to keep the administration steadily confronted with its responsibilities. The directors cannot do this intelligently unless the administration is present at their meetings. Who would expect honesty and efficiency in a business corporation in which the board of directors and the executive management were separate, rival concerns, each trying to master the other, and each appealing to the shareholders against the other. Either this situation must be corrected or the business will collapse. This risk to the Constitution of the United States is distinctly pointed in in Justice Story’s Commentaries, published in 1833 (10).

Again, this argument against the separation of powers was standard among progressive political scientists. Woodrow Wilson’s first published article makes the case for amending the constitution to formally establish Westminster-style cabinet government. Later on, Wilson would move away from that full conclusion, arguing instead that a strong party system and strong presidential leadership would provide sufficient de facto alignment of legislative and executive power. (John Dearborn has a nice article describing these two dimensions of Wilsonian constitutional theory).

At any event, these progressive arguments are typically seen as new developments in American political thought, revisionist critiques of the constitutional theory of the founders (though Jeremy Bailey’s wonderful history of “presidential representation” identifies their many antecedents). That’s why I was surprised to see the reference to Joseph Story, a much more canonical constitutional commentator. Though the founding generation was directly steeped in Scottish-Enlightenment inflected monarchical historiography, my impression was that these arguments had faded by the early nineteenth century. Ford’s presidential address does not provide a citation, but the appendix to Rise and Growth includes a lengthy quotation from section 869 of Story’s Commentaries, so I assume that is the reference. Story is commenting here on the second part of Article I Section 6 of the constitution, which reads: “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”

This is a monumentally significant provision. By establishing the strict separation of legislative and executive offices, it rules out any parliamentary government in the United States. It serves, in other words, as the basis of our system of checks-and-balances between the presidency and the congress.

Story notes that this clause has been “universally applauded, and has been vindicated upon the highest grounds of public policy.” It is indispensable for protecting the states against federal encroachment. And yet, Story (the Federalist, nationalist) continues:

The universal exclusion of all persons holding office is (it must be admitted) attended with some inconveniences. The heads of the departments are, in fact, thus precluded from proposing or vindicating their own measures in the face of the nation in the course of debate, and are compelled to submit them to other men, who are either imperfectly acquainted with the measures, or are indifferent to their success or failure. Thus, that open and public responsibility for measures which properly belongs to the executive in all governments, and especially in a republican government, as its greatest security and strength, is completely done away with. The executive is compelled to resort to secret and unseen influence, to private interviews and private arrangements, to accomplish its own appropriate purposes, instead of proposing and sustaining its own duties and measures by a bold and manly appeal to the nation in the face of its representatives. One consequence of this state of things is, that there never can be traced home to the executive any responsibility for the measures which are planned and carried at its suggestion. Another consequence will be, (if it has not yet been,) that measures will be adopted or defeated by private intrigues, political combinations, irresponsible recommendations, and all the blandishments of office and all the deadening weight of silent patronage. … If corruption ever eats its way silently into the vitals of this republic, it will be because the people are unable to bring responsibility home to the executive through his chosen ministers. They will be betrayed, when their suspicions are most lulled by the executive, under the disguise of an obedience to the will of Congress. (614-5, emphasis added)

I do not know Story well, but I was surprised to see such a striking warning of executive irresponsibility. It makes perfect sense that Ford would favorably cite this passage, for the entire thrust of progressive political science emerged as a critique of the apparent corrupt, invisible legislative domination of national governance. It seems that Story here is playing with Hume’s famous argument in favor of corruption developed in his 1742 “Of the Independency of Parliament.” Hume, as indicated above, was a champion of powerful monarchical authority, and he feared that the British constitution had given too much power to the Commons. Without the power of veto, the post-1688 monarch no longer had a formal means of checking the parliament. His sole power was that of patronage, with which he could buy off individual parliamentarians:

I answer, that the interest of the body is here restrained by that of the individuals, and that the house of commons stretches not its power, because such an usurpation would be contrary to the interest of the majority of its members. The crown has so many offices at its disposal, that, when assisted by the honest and disinterested part of the house, it will always command the resolutions of the whole so far, at least, as to preserve the antient constitution from danger. We may, therefore, give to this influence what name we please; we may call it by the invidious appellations of corruption and dependence; but some degree and some kind of it are inseparable from the very nature of the constitution, and necessary to the preservation of our mixed government.

(This argument was well known to at least Hamilton, who favorably cites Hume on this point in the constitutional convention: “It was known that one of the ablest politicians (Mr Hume) had pronounced all that influence on the side of the crown, which went under the name of corruption, an essential part of the weight which maintained the equilibrium of the constitution” (376). Eric Nelson treats this in his Royalist Revolution on pages 196-7. That said, Hamilton in Federalist 76 praises the provision for establishing one of several “important guards against the danger of executive influence upon the legislative body.” It is hard to reconcile that comment with the bulk of Hamilton's vigorous presidentialism).

Where Hume hoped that patronage powers would allow the king to exert influence over the legislature, Story fears that even when combined with the veto, these informal powers would be insufficient to resist the irresponsibility produced by Congressional domination. For Ford and other progressives, Story’s fears had become a reality. Without being able to direct the work of the legislature, the president was powerless to resist the partial, irresponsible, corrupt practices of a fragmented Congress that served the interest of local machines and bosses, not the nation. Theodore Roosevelt made this point most directly in his final annual message to Congress:

The danger to American democracy lies not in the least in the concentration of administrative power in responsible and accountable hands. It lies in having the power insufficiently concentrated, so that no one can be held responsible to the people for its use. Concentrated power is palpable, visible, responsible, easily reached, quickly held to account. Power scattered through many administrators, many legislators, many men who work behind and through legislators and administrators, is impalpable, is unseen, is irresponsible, can not be reached, can not be held to account. Democracy is in peril wherever the administration of political power is scattered among a variety of men who work in secret, whose very names are unknown to the common people. It is not in peril from any man who derives authority from the people, who exercises it in sight of the people, and who is from time to time compelled to give an account of its exercise to the people.

A familiar presidential sentiment in our time.

Herbert Croly Against Equal Opportunity

In 1967, John Schaar published, “Equality of Opportunity, and Beyond” in Volume 9 of Nomos. The article remains, by my lights, the best or at least most entertaining critique of left-liberal defenses of equal opportunity:

The present-day ‘radicals’’ who demand the fullest extension of the equal-opportunity principle to all groups within the society, and especially to Negroes and the lower classes, are really more conservative than the ‘conservatives’ who oppose them. No policy formula is better designed to fortify the dominant institutions, values, and ends of the American social order than the formula of equality of opportunity, for it offers everyone a fair and equal chance to find a place within that order. In principle, it excludes no man from the system if his abilities can be put to use within the system. We have here another example of the repeated tendency of American radicals to buttress the existing framework of an order even while they think they are undermining it … Before one subscribes to the equality-of-opportunity then, he should be certain that the dominant values, institutions and content of much of our recent serious literature and social thought---thought that escapes the confines of the conservative-radical framework—warn that we are well on the way toward building a culture our best men will not honor. The facile formula of equal opportunity quickens that trend. It opens more and more opportunities for more and more people to contribute more and more energies toward the realization of a mass, bureaucratic, technological, privatized, materialistic, bored, and thrill-seeking, consumption-oriented society—a society of well-fed, congenial, and sybaritic monkeys surrounded by gadgets and pleasure-toys (230-231).

Schaar draws on Michael Young’s influential critique of “meritocracy,” which remains a favorite punching bag for contemporary left-liberal political theorists. The core point is that it is irrelevant to insist on an equal opportunity to achieve success in a society if the core structure of that society remains hierarchical and corrupt.

I’m interested in a related (though distinct) left critique of equal opportunity developed by the greatest theorist of American progressivism, Herbert Croly. In both The Promise of American Life (1909) and Progressive Democracy (1914), Croly attacks American liberalism for its fixation with equal opportunity, a feature of America’s more general commitment to moral individualism.

Croly acknowledges that in a certain sense democracy must be committed to equal rights. A society “ceases to be a democracy, just as soon as any permanent privileges are conferred by its institutions or its laws; and this equality of right and absence of permanent privilege is the expression of a fundamental social interest” (Promise 222). At the same time, the obsession with individual equality leads to a tangle of unproductive contradictions. The most stark of those contradictions concerns the apparent belief in “equal opportunity” and repudiation of “equal outcome:”

The democratic principle requires an equal start in the race, while expecting at the same time an unequal finish. But Americans who talk in this way seem wholly blind to the fact that under a legal system which holds private property there may be equal rights, but there cannot possibly be any equal opportunities for exercising such rights. The chance which the individual has to compete with his fellows and take a prize in the race is vitally affected by material conditions over which he has no control (Promise 222).

That metaphor—the race—is of course ubiquitous in American debates over equal opportunity. It is given its most famous statement in LBJ’s 1965 Commencement Address at Howard University:

But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you are free to compete with all the others,” and still justly believe that you have been completely fair. Thus it is not enough to just open the gates of opportunity. All our citizens must have the ability to walk through those gates.

That’s the same conclusion Rawls famously reaches by distinguishing between two forms of equal opportunity: “careers open to talent” and “fair equality of opportunity.” The race metaphor seems to imply that no strong line can be drawn between equal opportunity and equal outcomes. Every outcome is another opportunity, and so a true commitment to equal opportunity requires some form of equalizing conditions.

Notably, this is NOT the conclusion Croly draws. He does not take from the race metaphor the conclusion that a true commitment to democracy entails a commitment to REAL equal opportunity. He concludes, by contrast, that the fixation with “equal rights” is too individualistic and altogether unhelpful:

No formula whose effect on public opinion is not binding and healing and unifying has any substantial claim to consideration as the essential and formative democratic idea. Belief in the idea of equal rights does not bind, heal, and unify public opinion. Its effect rather is confusing, distracting, and at worst, integrating … The principle of equal rights encourages mutual suspicion and disloyalty. It tends to attribute individual and social ills, for which general moral, economic, and social causes are usually in large measure responsible, to individual wrong-doing; and in this way it arouses and intensifies that personal and class hatred, which never in any society lies far below the surface. Men who have grievances are inflamed into anger and resentment (Promise 227).

Croly rejects any political philosophy that aims at explicating, expounding, and realizing a true vision of equal rights. The problem with all such individualistic liberalisms is that they undermine the possibility of establishing a constructive democratic politics in service of collective purposes. When we are preoccupied with the correct balance and calculus of individual entitlements, we are unable to think coherently about the genuine national interest. Indeed, the entire race metaphor is a kind of fraud that perpetuates an illusion of impersonality and impartiality. Rather than be impartial, the democratic state must be willing to rig the game of society to serve the true social interest:

It is in the position of the bank at Monte Carlo, which does not pretend to play fair, but which frankly promulgates rules advantageous to itself. Considering the percentage in its favor and the length of its purse, it cannot possibly lose. It is not really gambling; and it does not propose to take any unnecessary risks. Neither can a state, democratic or otherwise, which believes in its own purpose. While preserving at times an appearance of impartiality so that its citizens may enjoy for a while a sense of the reality of their private game, it must on the whole make rules in its own interests. It must help those men to win who are most capable of using their winnings for the benefit of society (Promise 236-7).

Croly makes the same point in Progressive Democracy. He offers the race metaphor to mock the philosophical contortions of liberal theorists attempting to discover the true meaning or requirements of equal opportunity:

American democrats have usually hugged the illusion that equality of right would automatically bring with it equality in the exercise of rights. When the result of the exercise of presumably equal rights has been gross inequality of benefit, they seek constantly to repair the damage by abolishing or attenuating rights which seem to be fruitful of inequalities. They argued at first that, inasmuch as the whole field started from the same line, the whole field had had an equal chance to win. When it was found that the fleetest runners were always winning, the privilege of starting with them from the same line seemed to be a poor consolation for constant defeat. The natural inference followed. If the great object of the running was the prize of victory, and if all deserved an equal opportunity of winning the race, the only fair race was the handicap. Instead of starting equally and finishing unequally, they should start unequally in order that they might finish equally (PD 114).

These are endless, unproductive, stupid debates. They derive from a foolish fetishization of “equal rights." A progressive, constructive democracy will not waste time agonizing about whether a given distribution of opportunities or outcomes is fair or just. It will focus instead on whether the social structure as a whole serves the public interest. The correct emphasis is social contribution not individual entitlement:

Society is undoubtedly interested in affording everybody an opportunity to win prizes in the race; but it is still more interested in arranging for a fast race, a real contest and an inspiring victory. If for the present a large part of the spoils must belong to the victors, it is the more necessary to insist that the victors shall be worthy of the spoils (PD 115).

This abstract critique of liberal rights-talk and individualism is meant to articulate Croly’s repudiation of Woodrow Wilson’s New Freedom agenda, which derives ultimately from a Jeffersonian ideal of individual self-sufficiency. Wilson and his closest advisor, Louis Brandeis, favor trust-busting, for example, as a means of distributing an equal opportunity for individuals to build their own businesses and establish a degree of economic independence. They attack big business in order to give the little guy a fair shot. For Croly, that vision of antitrust policy remains trapped within a conservative ideology of liberal individualism. The goal for progressives should not be “true equality” or “true opportunity.” The goal is the construction of a society that serves the national interest. That might mean some form of antitrust. But it might also mean the embrace of corporate consolidation if the trusts can be induced to serve the common good. As he puts it in The Promise of American Life:

The concentrated leadership, the partial control, the thorough organization thereby effected [by the monopolies] was not necessarily a bad thing. It was in some respects a decidedly good thing, because leadership of any kind has certain intrinsic advantages. The trusts have certainly succeeded in reducing the amount of waste which was necessitated by the earlier condition of wholly unregulated competition. The competitive methods of nature have been, and still are, within limits indispensable; but the whole effort civilization has been to reduce the area within which they are desirably effective; and it is entirely possible that in the end the American system of industrial organization will constitute a genuine advance in industrial economy. Large corporations, which can afford the best machinery, which control abundant capital, and which can plan with scrupulous economy all the details of producing and selling an important product or service, are actually able to reduce the cost of production to a minimum; and in the cases of certain American corporations certain results have actually been achieved. The new organization of American industry has created an economic mechanism which is capable of being wonderfully and indefinitely serviceable to the American people (Promise 142).

For Croly, if your commitment to “individual rights” or “equal opportunity” leads you to repudiate the most innovative and efficient institutions in American society, it is time to revise your point of departure.

Edward Gibbon's Smithian Defense of Luxury

I wrote a post some time ago contrasting Adam Smith and Jean Jacques Rousseau on the utility of luxury consumption. Smith famously argues that the purchasing of vain trinkets is a crucial means by which the feudal aristocracy sacrifices the basis of its political power. The libido dominandi was once expressed through hierarchical mastery. The miracle of a commercial society is that this same drive can now be satisfied through conspicuous consumption. Here is the famous passage from book three of the Wealth of Nations:

For a pair of diamond buckles perhaps, or for something as frivolous and useless, they exchanged the maintenance, or what is the same thing, the price of the maintenance of a thousand men for a year, and with it the whole weight and authority which it could give them. ... for the gratification of the most childish, the meanest and the most sordid of all vanities, they gradually bartered their whole power and authority.

In the Theory of Moral Sentiments, Smith famously celebrates this process of sublimation as a means of establishing a more equitable distribution of material subsistence: 

[The rich] are led by an invisible hand to make nearly the same distribution of the necessaries of life, which would have been made, had the earth been divided into equal portions among all its inhabitants, and thus without intending it, without knowing it, advance the interest of the society, and afford means to the multiplication of the species.

So Smith makes two arguments here in favor of luxury consumption: (1) Politically, by purchasing ever-more expensive frivolities, the feudal aristocracy sacrifices the material basis of its authority; (2) Economically, by pursuing luxury, the feudal aristocracy produces a de facto redistribution of wealth. (I've written a couple academic articles reconstructing this Smithian reasoning at greater length).

As I point out in that older post, Rousseau offers a similar descriptive analysis, though he curiously praises the older expression of vanity--political mastery and war--as more noble than vain, luxury consumption.

At any event, Edward Gibbon comments on the same phenomenon in a brief aside in Volume I of The Decline and Fall of the Roman Empire (published, incidentally, in 1776, the same year as The Wealth of Nations). He rebukes moralist critics of luxury and celebrates commerce for one of Smith's reasons:

Under the Roman empire, the labour of a industrious and ingenious people was variously but incessantly employed, in the service of the rich. In their dress, their table, their houses, their furniture, the favourites of fortune united every refinement of conveniency, of elegance, and of splendour; whatever could sooth their pride, or gratify their sensuality. Such refinements, under the odious name of luxury, have been severely arraigned by the moralists of every age; and it might perhaps be more conducive to the virtue, as well as happiness, of mankind, if all possessed the necessaries and none the superfluities, of life. But in the present imperfect condition of society, luxury, though it may proceed from vice or folly, seems to be the only means that can correct the unequal distribution of property. The diligent mechanic, and the skilful artist, who have obtained no share in the division of the earth, receive a voluntary tax from the possessors of land; and the latter are prompted, by a sense of interest, to improve those estates, with whose produce they may purchase additional pleasures.

So Gibbon and Smith agree on the trickle-down type benefits of luxury consumption, but we don't find in Gibbon the same political analysis of the collapse of traditional landed political authority.

Thomas Hobbes on Counsel vs. Command

Thomas Hobbes' A Dialogue between a Philosopher and a Student of the Common Laws of England lays out the basis of Hobbes' famous positivist philosophy of law. The dialogue opens with the claim of a lawyer in the tradition of Edward Coke that the genius of the common law consists in its discovery of an "artificial perfection of reason, gotten by long study, observation, and experience, and not of every man's natural reason" (4). The collective wisdom of English judges across time can discover a more complete vision of equity and justice than anything an individual jurist is capable of.

Hobbes' philosopher makes two replies. First, while granting that the law requires much study, he denies the metaphysical coherence of "artificial reason." There is no such thing, there is only the "natural reason" of the judges. But more fundamentally, he insists that the implicit claim of a connection between reason and law manifests a complete non sequitur: "it is not wisdom, but authority that makes law" (5). Law is simply the command of the sovereign. As Hobbes explains some pages later:

Statutes are not philosophy, as is the common-law, and other disputable arts, but are commands or prohibitions, which ought to be obeyed, because assented to by submission made to the Conqueror here in England, and to whosoever had the sovereign power in other commonwealths (24). 

He offers a clean definition of law: "a law is the command of him or them that have sovereign power, given to those that be his or their subjects, declaring publicly and plainly what every of them may do, and what they must forbear to do." (26) 

What then does Hobbes mean by command? We get the clearest statement in chapter 14 of De Cive through Hobbes' distinction between counsel (advice) and command (law):

They confuse law with advice when they think that it is the monarch's duty not only to listen to advisors but also to obey them ... The distinction between advice and law is to be sought in the difference between advice and command. ADVICE is an instruction or precept in which the reason for following it is drawn from the matter itself. But a COMMAND is an instruction in which the reason for following it is drawn from the will of the instructor. For one can properly say: This is what I want, this is my order, if will stands for reason. But since laws are obeyed not for their content, but because of the will of the instructor, law is not advice but command, and it is defined thus: LAW is a command of that person (whether man or council) whose instruction is the reason for obedience. (153-4 in Tuck edition)

As I say, a very clear statement. A command is an instruction that we follow because it is the will of the sovereign. We take the will of the commander to be our reason for obedience. If we choose to follow a piece of advice, by contrast, we do so because of the sound reason of the content of the advice. The reason to obey a command is content-independent. The reason to follow advice is content-dependent. 

Interestingly, however, Hobbes appears to offer a somewhat different account in chapter 25 of Leviathan. There he provides the following definitions of counsel and command:

COMMAND is, where a man saith, Doe this, or Doe not this, without expecting other reason than the Will of him that says it. From this it followeth manifestly, that he that Commandeth, pretendeth thereby his own Benefit: For the reason of his Command is his own Will onely, and the proper object of every mans Will, is some Good to himselfe. 

COUNSELL, is where a main saith Doe, or Doe not this, and deduceth his reasons from the benefit that arriveth by it to him to whom he saith it. And from this it is evident, that he that giveth Counsell, pretendeth onely (whatsoever he intendeth) the good of him, to whom he giveth it. (176 in Tuck edition)

This is not incompatible with the definition given in De Cive. Indeed, Hobbes notes here that the one receiving a command expects no reason for obedience beyond the will of the commander. So again, the ground of our reason to obey a command consists simply in our reason to obey the sovereign will. 

Still, these definitions are interestingly different in emphasis. The key contrast Hobbes highlights in Leviathan concerns the implicit beneficiary of counsel vs. command. Command aims only at the good of the commander, whereas counsel aims ostensibly at the good of the commanded. Curiously, Hobbes goes on to suggest that this difference in benefit is the source of practical obligation. The reason we are not obligated by counsel is that rejecting the counsel only harms us: "he cannot be obliged to do as he is Counselled, because the hurt of not following it, is his own" (177). Counsels are thus optional because they only concern us. Commands, by contrast, appear to be obligatory because refusing a command harms the commander. 

So is this a further explanation for why we have decisive reason to obey the sovereign will? Our duty to obey a command derives from our duty not to harm the sovereign? It would appear so. 

Hobbes goes on to clarify that a counsel becomes a command if we covenant to form a sovereign and therefore to obey the commands. But strictly speaking for Hobbes, once we have so covenanted we are the sovereign. So now it is in fact our command. This, I take it, is the upshot of the famous treatment of representation in chapter 16 of Leviathan. Once we alienate our will and reason to the sovereign, the distinction between the interest of sovereign and subject dissolves. Sovereign command is binding because it actually expresses our will and therefore embodies our interest.

Hobbes goes on to claim that scripture confirms his conceptual distinction between counsel and command. He draws on (and in some ways subverts) the traditional Christian distinction between the obligatory precepts of the law and the supererogatory counsels of perfection. He tells us that we are duty bound to obey the Decalogue because it is a command. The reason for our obedience consists simply in the fact that we are obliged to obey the will of God, our sovereign. But curiously, Hobbes does NOT say that refusal to obey the Decalogue somehow harms God. Does that then contradict the definition? 

Hobbes does say, however, that the counsels of perfection--the counsel to sell all one has, for example--are not obligatory "because the reason for which we are to do so is drawn from our own benefit; which is this, that we shall have Treasure in heaven" (178-9). So again, because instructions of this kind only benefit us, we are free to repudiate them. Even an apparent command like "Repent, and be Baptized in the name of Jesus," Hobbes claims, is merely an act of optional counsel. Again, this is because "the reason why we should do so, tendeth not to any benefit of God Almighty" (179). 

This is a bit confusing. Presumably our refusal to obey the Decalogue does not harm God either. So why should the Decalogue be binding? 

I suppose the more general confusion here is that in Leviathan Hobbes appears to be offering a reason for why the will of the sovereign is a decisive source of practical obligation. He suggests that our duty to obey sovereign command derives from our duty not to harm the sovereign. Yet the scriptural example does not obviously provide good reason to see a connection between obeying the sovereign's will and benefiting the sovereign. 

Eulogy for Dimitrios Halikias (1925 - 2020)

Last week marked the fifth anniversary of the death of my grandfather and namesake, Dimitrios Halikias. He was pre-deceased by my grandmother, Amalia Halikias, by two weeks. Below is a translation of the eulogy that was delivered at my grandfather's funeral by Lucas Papademos, who briefly served as the Prime Minister of Greece from 2011 to 2012.

###

Dimitrios Halikias was a unique personality of economic science and policy, who offered multiple, valuable services to the Bank of Greece and to Greece.

He was born in the village of Apidia in Laconia in 1925. Even as a young boy he stood out for his work ethic and studiousness, which characterized his later career. He was a self-made scholar, civil servant, and central banker, who occupied the highest positions in the public sector and the Bank of Greece, and he contributed substantively to the development of economic policy and the implementation of monetary policy during critical periods for the Greek economy.

He did his university studies at the School of Economic and Commercial Sciences (ASOEE, today the Athens Economic University), and his graduate studies at Cambridge University in England, in the field of economic development.

During his long professional career, he served in numerous public positions, especially related to monetary policy and the banking system. He served as Director, Chief Economist, and Secretary General of the Ministry of Coordination (today the Ministry of Economy). In 1957, at the invitation of Xenophon Zolotas, he moved to the Bank of Greece and served in the Bank’s Economic Research Department. After the restoration of democracy in 1974, he assumed the position of Chief Economist at the Bank of Greece and remained in this position until he was appointed Deputy Governor in 1981. He served as Governor of the Bank of Greece for eight years, from 1984 to 1992.

During his tenure, he implemented a substantive liberalization of the Greek banking system, which contributed to its more effective functioning in providing support to the Greek economy. Dimitrios Halikias played a decisive role in the design and implementation of an appropriate monetary policy – or optimal monetary policy as he himself characterized it – for the stabilization of the economy during difficult periods of high inflation, on the order of 20 percent, and large budget deficits.

I had the good fortune and privilege to work with him when he was Governor of the Bank of Greece, and I occupied, during this period, the position of Chief Economist of the Bank. I admired his deep knowledge of the Greek economy and the monetary and credit system, his organizational and management skills, his decisiveness in designing and implementing the optimal monetary policy without being influenced by political pressures, his good judgment, his kindness, and his integrity of character; and, in parallel with the exercise of his duties as Governor, his ability to advise the government on monetary policy issues and in finding the time to author scholarly studies on the Greek and European economy.

And indeed, he has authored numerous and important studies, both during his tenure at the Bank of Greece and later as visiting fellow at Oxford University: studies on the problems but also the prospects of the Greek economy, on issues of monetary policy and banking supervision, as well as on the country’s transition toward the European Monetary Union.

Personally, and also on behalf of the Bank of Greece colleagues, I want to express our respect, affection, and gratitude for what he offered to the Bank and to Greece. Our dear Dimitri, you will remain immortal in our memory.

Lucas Papademos

Delivered on February 28, 2020

Marx on Free Speech and Commerce

In the news these days is another case involving a Christian business that refuses to provide services for a same-sex wedding. The core issue in the case—303 Creative vs. Elenis—is summarized by SCOTUSblog as follows: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

The arguments on both sides are familiar. The business owner is accused of discriminating against gay couples. She replies that she does not discriminate on the basis of sexual orientation, but refuses to participate in anything to do with gay marriage, which she opposes for moral and religious reasons. The state of Colorado insists that the owner is engaged in “status discrimination,” because she would refuse to sell the identical product to a couple just because the couple is gay. She replies that this is not the case, because the products in question would not be identical. She refuses to make a website for anyone that violates her core beliefs, and there is no way to produce a wedding website for the gay couple without implicitly endorsing gay marriage.

The conflict here is framed as one between free speech and anti-discrimination. The website designer claims that requiring her to implicitly endorse gay marriage is an unconstitutional form of compelled speech. Colorado claims that this is not a free-speech matter, but an issue of illegally discriminating against gay people.

I find this framing unhelpful—it seems obvious to me that we have a religious liberty issue here, not a free speech issue. We are, after all, talking about a wedding. It is bizarre to think that the best way to reason through such a case is by pretending that bakers and web designers are persecuted artists. But I understand that the Court’s prevailing religious liberty jurisprudence doesn’t protect the website designer in this matter, so she needs to appeal to free speech.

Consequently, the debate turns on the question of whether a customized website counts as speech at all. I suppose this is a slightly better question than the version posed a few years ago—whether a custom-made cake counts as speech. But it still is a rather silly question. “Expressive” commercial activities are vaguely like speech, but not speech of the kind that we usually consider to be protected by the first amendment.

Reading the coverage of the case, I was reminded of a set of articles Marx wrote in 1842, when he was just 24. Marx comments on an legislative debate over the freedom of the press. Full of youthful, rhetorical exuberance, the articles are quite entertaining, and they offer some insight into the young Marx’s political philosophy—in particular they show how interested Marx was in economic matters long before his putative turn to materialism.

What reminded me of the articles was the connection between economic activity and free speech at issue in the court case. Colorado seems to say that because the website is a commercial product, it is not subject to the standard free speech protections. The designer replies that she cannot separate business activity and speech.

Marx’s primary purpose in these articles is to lambast Prussian conservatives. But he is almost as scathing in his treatment of the liberals, who defend press freedom as an extension of the freedom to conduct private business. As he summarizes at one point: “we cannot overcome the dreary and uneasy impression produced by an assembly of representatives of the Rhine Province who wavered only between the deliberate obduracy of privilege and the natural impotence of a half-hearted liberalism.”

The conservative case against press freedom rests on an assumption of man’s permanent intellectual immaturity. Because people are stupid, they will not know what to believe, and they will be led astray by what today we might term “fake news.” Marx replies—in classic Enlightenment form—that censorship will only guarantee the perpetuation of that stupidity:

in order to combat freedom of the press, the thesis of the permanent immaturity of the human race has to be defended. It is sheer tautology to assert that if absence of freedom is men's essence, freedom is contrary to his essence. Malicious sceptics could be daring enough not to take the speaker at his word. If the immaturity of the human race is the mystical ground for opposing freedom of the press, then the censorship at any rate is a highly reasonable means against the maturity of the human race.

What undergoes development is imperfect. Development ends only with death. Hence it would be truly consistent to kill man in order to free him from this state of imperfection. That at least is what the speaker concludes in order to kill freedom of the press. In his view, true education consists in keeping a person wrapped up in a cradle throughout his life, for as soon as he learns to walk, he learns also to fall, and only by falling does he learn to walk. But if we all remain in swaddling-clothes, who is to wrap us in them? If we all remain in the cradle, who is to rock us? If we are all prisoners, who is to be prison warder?

The conservative argument against press freedom rests on the claim that the “bad press”—which appeals to irresponsible and irrational passions—will always be more powerful than the “good press”—which deals in sobriety and rationality.

Marx replies that this distinction (1) implies the eternal weakness of the good vis-à-vis the bad—the “impotence of the good” and the “omnipotence of the bad;” and (2) fails to recognize that the same moral vices afflict the free and the censored press:

Base frames of mind, personal intrigues, infamies, occur alike in the censored and the free press. Therefore the generic difference between them is not that they produce individual products of this or that kind; flowers grow also in swamps. We are concerned here with the essence, the inner character, which distinguishes the censored from the free press.

The free press is essentially good, even when its products are vicious. The censored press is essentially bad, even when its products are virtuous: “A eunuch remains a bad human being even when he has a good voice. Nature remains good even when she produces monstrosities.”

Throughout Marx articulates an extreme faith in the transformative power of freedom, and he makes a straightforward market-place of ideas argument:

Censorship does not abolish the struggle, it makes it one-sided, it converts an open struggle into a hidden one, it converts a struggle over principles into a struggle of principle without power against power without principle. The true censorship, based on the very essence of freedom of the press, is criticism. This is the tribunal which freedom of the press gives rise to of itself. Censorship is criticism as a monopoly of the government. But does not criticism lose its rational character if it is not open but secret, if it is not theoretical but practical, if it is not above parties but itself a party, if it operates not with the sharp knife of reason but with the blunt scissors of arbitrariness, if it only exersises criticism but will not submit to it, if it disavows itself during its realisation, and, finally, if it is so uncritical as to mistake an individual person for universal wisdom, peremptory orders for rational statements, ink spots for patches of sunlight, the crooked deletions of the censor for mathematical constructions, and crude force for decisive arguments?

For what it’s worth, I’m not particularly impressed by such arguments. As I’ve mentioned before, I think the opening of the Protagoras provides a decisive counter argument. (Though I do think Mill offers some stronger arguments for free speech).

In a striking aside, Marx insists on the necessity of law in constituting human freedom. It is a mistake to think of press freedom as the absence of legislation. It is, on the contrary, a positive expression of freedom. The perfectionism on display here strikes me as very different from standard American defenses of free speech:

Laws are in no way repressive measures against freedom, any more than the law of gravity is a repressive measure against motion, because while, as the law of gravitation, it governs the eternal motions of the celestial bodies, as the law of falling it kills me if I violate it and want to dance in the air. Laws are rather the positive, clear, universal norms in which freedom has acquired an impersonal, theoretical existence independent of the arbitrariness of the individual. A statute-book is a people's bible of freedom.

More interesting than the treatment of the defenders of censorship is Marx’s criticism of the liberal arguments in favor of free speech:

The mover of the motion desires that freedom of the press should not be excluded from the general freedom to carry on a trade, a state of things that still prevails, and by which the inner contradiction appears as a classical example of inconsistency.

There is something obscene about this argument, though it makes sense coming from a representative of the bourgeoisie. Such liberals are only able to understand freedom by way of analogy to their drab, commercial lives. Defending free speech as a form of the freedom of trade is a bit like Rembrandt depicting the Madonna as a Dutch peasant woman.

Such an account of free speech can never succeed:

To make freedom of the press a variety of freedom of trade is a defence that kills it before defending it, for do I not abolish the freedom of a particular character if I demand that it should be free in the manner of a different character? … is the press true to its character, does it act in accordance with the nobility of its nature, is the press free which degrades itself to the level of a trade?

The freedom of speech has nothing at all to do with the freedom to conduct a trade. Indeed, the freedom of self-expression is close to the exact opposite of the degrading, instrumentalization characteristic of commercial activity:

The writer does not at all look on his work as a means. It is an end in itself; it is so little a means for him himself and for others that, if need be, he sacrifices his existence to its existence. …The primary freedom of the press lies in not being a trade. The writer who degrades the press into being a material means deserves as punishment for this internal unfreedom the external unfreedom of censorship, or rather his very existence is his punishment.

What’s more, theorizing press freedom as a species of trade freedom allows for a noxious implication: The authorization of certain writers but not others. An official press (whose freedom is protected) and an unofficial press (whose freedom is denied). I gather this remains an issue in American jurisprudence—does something distinguish press freedom from free speech in general?

Marx offers here a purplish reply, rejecting any attempt to distinguish between the official and unofficial press:

The press is the most general way by which individuals can communicate their intellectual being. It knows no respect for persons, but only respect for intelligence. Do you want ability for intellectual communication to be determined officially by special external signs? What I cannot be for others, I am not and cannot be for myself. If I am not allowed to be a spiritual force for others, then I have no right to be a spiritual force for myself; and do you want to give certain individuals the privilege of being spiritual forces? Just as everyone learns to read and write, so everyone must have the right to read and write.

By framing the issue as one of trade, the liberals have allowed free speech to become a matter of “soulless bargaining and haggling,” not unlike debates over what kinds of business activities to regulate. The American legal debate over the imaginary line between purely commercial and properly expressive business activities strikes me as roughly comparable. 

Marx concludes by favorably quoting a speech from a member of the peasant estate:

If any nation is suitable for freedom of the press it is surely the calm, good-natured German nation, which stands more in need of being roused from its torpor than of the strait jacket of censorship. For it not to be allowed freely to communicate its thoughts and feelings to its fellow men very much resembles the North American system of solitary confinement for criminals, which when rigidly enforced often leads to madness. From one who is not permitted to find fault, praise also is valueless; in absence of expression it is like a Chinese picture in which shade is lacking. Let us not find ourselves put in the same company as this enervated nation!

Schmitt and Foucault on Political Theology

I have been struck in recent months by some similarities between Schmitt and Foucault. This post sketches one such similarity: The parallel stories they tell of the connection between theological and political developments from the sixteenth to the nineteenth centuries.

Schmitt’s Method

The third chapter of Schmitt’s Political Theology argues that changing ideas of political sovereignty in Western Europe are connecting to changing theological commitments. Following Max Weber, he sees an elective affinity connecting religious and political sensibilities—the claim is not necessarily that one of these is prior to the other, but that they both derive from certain master conceptual characteristics of particular epochs. He summarizes this methodological “sociology of legal concepts,” as follows:

It aims to discover the basic, radically systematic structure and to compare this conceptual structure with the conceptually represented social structure of a certain epoch. There is no question here of whether the idealities produced by radical conceptualizations are a reflex of sociological reality, or whether social reality is conceived of as the result of a particular kind of thinking and therefore also of acting. Rather this sociology of concepts is concerned with establishing proof of two spiritual but at the same time substantial identities. It is thus not a sociology of the concept of sovereignty when, for example, the monarchy of the seventeenth century is characterized as the real that is “mirrored” in the Cartesian concept of God. But it is a sociology of the concept of sovereignty when the historical-political status of the monarchy of that epoch is shown to correspond to the general state of consciousness that was characteristic of western Europeans at that time, and when the juristic construction of the historical-political reality can find a concept whose structure is in accord with the structure of metaphysical concepts. Monarchy thus becomes as self-evident in the consciousness of that period as democracy does in a later epoch (Political Theology 45-6).

I am sympathetic to this broad approach because of its blobbish character. We need not determine the precise causal connections between material facts, economic attitudes, theological convictions, and political theories. There are more subtle if imprecise unifying themes that run through them all. But regardless, my point is not to think through the method here, just to lay it out. Schmitt goes on to outline the theologico-political similarities in distinct periods of modern European history.

Schmitt on Early Modernity

The theology and political theory of the seventeenth century feature a sovereign authority who stands at the head of a rational order. The rationalism of a Descartes, for example, insists on the perfect rational structure of the universe produced by the perfect work of an omnipotent creator. Schmitt summarizes the Cartesian position (quoting from the Discourse on Method) as follows:

the works created by several masters are not as perfect as those created by one. “One sole architect” must construct a house and a town; the best constitutions are those that are the work of a sole wise legislator, they are “devised by only one”; and finally, a sole God governs the world. As Descrates once wrote to Mersenne, “It is God who established these laws in nature just as a king establishes laws in his kingdom (PT 47).

Cartesian rationalism thus points to a single, omnipotent divine creator and likewise a single, omnipotent political sovereign. Crucially, however, both God and the Prince remain palpably present. The theological and political sovereign remain personal authorities, capable of intervening in the world. Hobbes, Schmitt argues, further develops the Cartesian picture, emphasizing the centrality of the personal sovereignty of the Leviathan.

Schmitt on the Eighteenth Century

Despite his rationalism, Descartes still understood God to intervene in the world through miracles. That possibility of special providence disappears in the eighteenth century. Descartes’ divine architect becomes the deists’ watchmaker God, a perfect engineer whose personal presence disappears from his creation. This theological revolution is tied to the new political commitment to constitutionalism, the rule of law not man:

The idea of the modern constitutional state triumphed together with deism, a theology and metaphysics that banished the miracle from the world. This theology and metaphysics rejected not only the transgression of the laws of nature through an exception brought about by direct intervention, as is found in the idea of a miracle, but also the sovereign’s direct intervention in a valid legal order” (PT 36).

The disappearance of the miracle goes with the disappearance of the exception, what Schmitt takes to be the essence of political sovereignty. The Enlightenment takes the order of early-modern theology/politics, but evacuates it of personal authority. The universe and the state are machines that operate without subsequent intervention. Deism forgets the deity just as constitutionalism forgets the founder:

The sovereign, who in the deistic view of the world, even if conceived as residing outside the world, had remained the engineer of the great machine, has been radically pushed aside. The machine now runs by itself … The decisionistic and personalistic element in the concept of sovereignty was thus lost (PT 48).

Some further features of the Enlightenment should be noted. The first is the intensification of a scientific ethic that insists on regularity. Theologically, that ethic explains the rejection of miracles and God’s special providence. Politically, it explains the hostility to any form of personal discretion or authority. As Schmitt puts it, quoting a book by Hugo Krabbe:

The modern idea of the state, according to Krabbe, replaces personal force (of the king, of the authorities) with spiritual power. “We no longer live under the authority of persons, be they natural or artificial (legal) persons, but under the rule of laws, (spiritual) forces. This is the essence of the modern idea of the state (PT 22).

We are left with law and legal form, but we have abandoned the authoritative, personal sources of that law. This, Schmitt suggests, is the crucial difference between Hobbes and Locke. The Hobbesian personal sovereign gives way to Lockean constitutionalism.

A second important theme is the connection between the rationalism of the eighteenth century and the new emphasis on education. Both the constitutional separation of powers and omnipotent, tutelary despotism are products of the deist-rationalist ethic:

For the rationalism of the Enlightenment, man was by nature ignorant and rough, but educable. It was thus on pedagogic grounds that the ideal of a “legal despotism” was justified: Uneducated humanity is educated by a legislator (who, according to Rousseau’s Social Contract, was able “to change the nature of man”); or unruly nature could be conquered by Fichte’s “tyrant,” and the state became, as Fichte said with naïve brutality, an “educational factory” (PT 56).

(For what it’s worth, the alleged connection here between Rousseau’s legislator and Quesnay’s legal despotism strikes me as implausible given Rousseau’s contempt for the physiocrats. But that’s a separate point).

Schmitt says more on this theme in his Crisis of Parliamentary Democracy. He argues there that the principles of eighteenth-century rationalism are just as connected to Publius’ program of constitutional balance as they are to Condorcet’s demand for rational despotism (maintained through education):

Condorcet’s absolute rationalism negates the division of powers and destroys both its inherent negotiation and moderation of state powers and the independence of the parties. To his radicalism, the complicated balancing of the American constitution appeared subtle and difficult, a concession to the peculiarities of that land, one of those systems “where one must enforce the laws an in consequence truth, reason and justice,” and where one must sacrifice “rational legislation” to the prejudices and stupidity of individual people. Such rationalism led to the elimination of balance and to a rational dictatorship. Both the American constitution and Condorcet identify law with truth; but the relative rationalism of the balance theory was limited to the legislative and logically limited again within parliament to a merely relative truth” (Crisis of Parliamentary Democracy 46).

There’s something a slippery here, as Condorcet’s rationalist dictatorship sounds a bit more like the Cartesian sovereign. The contrast with Hobbes is more clear, though likewise the connection between Descartes and Hobbes weakens. For Hobbes the personal authority is prior to the “truth” or rationality of the laws, whereas Condorcet’s dictator is a servant of truth. But more should be said about that.

Schmitt on the Nineteenth Century

This relatively clean taxonomy gets a good deal more complicated when we come to the nineteenth century. We see, for example, an abortive attempt of certain democratic peoples to invoke a new standard of democratic authority not unlike that of the old seventeenth picture of sovereignty. Schmitt quotes Tocqueville, for example, to observe that early America invoked a standard of democratic legitimacy in some ways reminiscent of Hobbesian personal sovereignty:

for some time the aftereffects of the [absolutist] idea of God remained recognizable. In America this manifested itself in the reasonable and pragmatic belief that the voice of the people is the voice of God—a belief that is at the foundation of Jefferson’s victory of 1801. Tocqueville in his account of American democracy observed that in democratic thought the people hover above the entire political life of the state, just as God does above the world, as the cause and the end of all things, as the point from which everything emanates and to which everything returns (PT 48).

Reactionaries and counterrevolutionaries similarly attempt to reconstruct a vision of political absolutism tied to an account of divine voluntarism. De Maistre, on Schmitt’s view, cares less about what the government does than he does about whether an absolute authority exists. Donoso Cortes goes so far as to adopt a Calvinist vision of human depravity and an existentialist contempt for human reason: “What Donoso Cortes had to say about the natural depravity and vileness of man was indeed more horrible than anything that had ever been alleged by an absolutist philosophy of the state in justifying authoritarian rule” (PT 58).

More prominently, Schmitt notes the continued persistence of deist constitutionalism in the legal theories of Kelsen and the like. Such thinkers continue the eighteenth century’s assault on sovereignty and authority by identifying the legal order itself with the state. This neo-Kantian constitutionalism features a redoubled commitment to scientific order, rejecting the category of personal command as precisely the kind of arbitrariness a system of laws cannot tolerate: “at the foundation of this identification of state and legal order rests a metaphysics that identifies the lawfulness of nature and normative lawfulness” (PT 41). And again: “Democracy is the expression of a political relativism and a scientific orientation that are liberated from miracles and dogmas and based on human understanding and critical doubt” (PT 42).

Schmitt also sees the rise of immanent theology and politics as the other major development of the nineteenth century. Where the sovereign God of the seventeenth century and the deist God of the eighteenth were both transcendent divinities, standing above or outside the created order, the God of the nineteenth century is found in the world itself, perhaps even made identical with it:

Conceptions of transcendence will no longer be credible to most educated people, who will settle for either a more or less clear immanence-pantheism or a positivist indifference toward any metaphysics. Insofar as it retains the concept of God, the immanence philosophy, which found its greatest systematic architect in Hegel, draws God into the world and permits law and the state to emanate from the immanence of the objective (PT 50).

The radical left-Hegelians and their offspring are the clearest representatives of this immanentizing tendency. Schmitt sees in their demand that man become God and kill any remnants of transcendent theology a ruthless yet serious challenge to the prevailing liberal order. Indeed, in some stirring (if somewhat confusing) passages toward the end of the book, Schmitt casts the conflict between these radicals and the reactionaries to be the key antithesis of modern times. Liberal constitutionalism with its endless discussion and parliamentarism is outmatched by these two extremes.

Schmitt’s own positive view at the end of PT is not entirely clear. His master polemic against liberal constitutionalism remains powerful, and he clearly wishes to restore sovereignty and politics. Consider this famous passage, which connects well with his essay on “The Age of Neutralizations and Depoliticizations:”

Today nothing is more modern than the onslaught against the political. American financiers, industrial technicians, Marxist socialists, and anarchic-syndicalist revolutionaries unite in demanding that the biased rule of politics over unbiased economic management be done away with. There must no longer be political problems, only organizational-technical and economic-sociological tasks. The kind of economic-technical thinking today is no longer capable of perceiving a political idea. The modern state seems to have actually become what Max Weber envisioned: a huge industrial plant (PT 65).

But the form of this restored sense of the political should take is not obvious. He sympathizes with the counterrevolutionaries and their demand for a restoration of sovereignty. And he sympathizes too with their observation that the age of monarchy is over and that the only choices left are democracy or dictatorship. But he concludes on a slightly critical note concerning the illegitimate character of brute, decisionist dictatorship. Does that suggest a tepid defense of democracy—or a commissarial dictatorship within democracy? I think so, but I’m not sure.

Foucault’s Method

Enough of Schmitt. Let’s turn to Foucault. The text I’m interested in here is Security, Territory, Population, which because of its lecture-format is remarkably clear and easy to follow. There is a lot going on in these lectures, including a very interesting distinction between law, discipline, and security as distinct techniques of power. The connection and disjunction between security and discipline is of particular interest, and I’m not sure I follow it entirely. There is also a wonderful account of how "counter-conduct" practices rebuke of settled forms of governmentality and regimented control before being themselves coopted and routinized. But again, my focus will be more narrow—Foucault’s political theology. It is difficult to draw out a clean set of categories even here. As a friend of mine put it, the trouble with interpreting Foucault is that nothing is ever stable, the categories are always moving under your feet. But I’ll do my best to artificially make them stand still.

First on method. Foucault’s method in these lectures—which I will not attempt to say anything about—is an extension of his more general project of institutional and disciplinary analysis. This method begins as follows:

This kind of method entails going behind the institution and trying to discover in a wider and more overall perspective what we can broadly call a technology of power. In the same way, this analysis allows us to replace a genetic analysis through filiation with a genealogical analysis—genealogy should not be confused with genesis and filiation—which reconstructs a whole network of alliances, communications, and points of support. So, the first methodological principle is to move outside the institution and replace it with the overall point of view of the technology of power (STP 117).

Applied more specifically to the state, he summarizes his project in these lectures as follows:

Is it possible to place the modern state in a general technology of power that assured its mutations, development, and functioning? Can we talk of something like a “governmentality” that would be to the state what techniques of segregation were to psychiatry, what techniques of discipline were to the penal system, and what biopolitics was to medical institutions? (STP 120).

I don’t aim to comment on this methodological program, for I’m not sure I understand it. But in the interest of symmetry I’ve included it.

Foucault on Christian Pastoral Political-Theology

Unlike Schmitt, Foucault begins his political theology with Christianity and the political-theological image of the pastor. He argues that the image of the ruler as a shepherd is properly a contribution of Christianity, and spends more than a few pages explaining why the apparent invocation of the shepherd in Plato’s Statesman does not represent Plato’s real image of political rule. For Plato—and for the Greeks more generally, Foucault suggests—“the politician is a weaver,” a metaphor that emphasizes the political vocation’s focus on knitting together society:

What then is political action in the strict sense, the essence of the political, the politician, or rather the politician’s action? It will be to join together, as the weaver joins the warp and the weft. The politician will bind the elements together, the good elements formed by education; he will bind together the virtues in their different forms, which are distinct from and sometimes opposed to each other; he will weave and bind together different contrasting temperaments, such as, for example, spirited and moderate men; and he will weave them together thanks to the shuttle of a shared common opinion. So the royal art is not at all that of the shepherd, but the art of the weaver, which is an art that consists in bringing together these lives “in a community that rests on concord and friendship” (STP 146, quoting Statesman 311b).

The Christian image of the pastorate is radically different, for it emphasizes not primarily the communitarian good of the whole, but each individual soul: “pastoral power is an individualizing power. That is to say, it is true that the shepherd directs the whole flock, but he can only really direct it insofar as not a single sheep escapes him” (STP 128).

The shepherd image, Foucault provocatively argues, is the origin of what he calls “governmentality,” which when rationalized becomes the foundation of the modern state (STP 165). He discusses here patristic sources and monastic rules, which together point to the Christian celebration of obedience as a means of acquiring apatheia and self mastery. As he puts it: “The perfection of obedience consists in obeying an order, not because it is reasonable or because it entrusts you with an important task, but because it is absurd” (STP 176). Proceeding through a discussion of spiritual direction, he concludes that the pastorate is an “absolutely new form of power” that relies on a comprehensive network of mutual servitude and individuation, the combination that he takes to yield the technique of the modern state (STP 183-4).

St. Thomas Aquinas’ De Regno is offered here as representative of the medieval Christian attitude toward political rule and sovereignty. Though importantly different from the animating spirit of the modern state, Thomas articulates an kind of political governmentality. As Foucault puts it, the crucial point here is that Thomas rejects any hard line between sovereignty and government. In outlining the governmental character of political rule, Thomas offers a series of analogies. The first is that the king must imitate God, for just as God governs nature, the king must govern the state. The second is an analogy to nature: the king must be the “vital force,” the animating principle of the political community. The third is our familiar pastoral and paternal image; the king must “procure the common good of the multitude in accordance with a method that can obtain for it heavenly blessedness” (STP 232-3). These three analogies point to the sweeping role of political rule in organizing a huge array of social institutions and relationships.

Foucault on the “De-Governmentalization of the Cosmos” (STP 236)

In imitating God, the vital force, and the pastor, Thomas’ monarch governs with a conscious eye to the salvation of each. The pastoral prince is not bound by abstract rules or principles, he must deal with the particular demands of each individual. For Foucault (in a clearly Schmittian line of reasoning), the Thomistic model of politics requires signs and decisions that can be analogized to God’s miracles. As he puts it: “A pastoral government of nature was therefore a nature peopled by prodigies, marvels, and signs” (STP 235).

This political-theological vision is brought to an end with the scientific revolution. In an analysis that closely follows Schmitt’s, Foucault argues that the scientific revolution proved:

that ultimately God only rules the world through general, immutable, and universal laws, through simple and intelligible laws … What does it mean to say that God only rules through general, immutable, universal, simple, and intelligible laws? It means that God does not “govern” the world; he does not govern it in the pastoral sense. He reigns over the world in a sovereign manner through principles (STP 235).

Like Schmitt, the new vision of the ruler-God is not a sovereign who intervenes (through miracles/decision) to touch individual lives, but who reigns over his creation through the immutable regularities he builds into it. The pastoral God of “prodigies, miracles, and signs” disappears “precisely between 1580 and 1650” (STP 236).

With the fall of the old pastoral vision, we get the new pure theory of government. Machiavelli and the new tradition of reason of state insist on a merely political mode of rule, one that has been severed from the analogy to nature or the divine. Foucault goes so far as to term the new vision of politics “statolatry,” the good of the state becomes the sole criterion for proper rule (STP 242). For that reason, the state becomes an object of “reflected practice,” a preeminent form of governmentality (STP 247-8).

From Reason-of-State back to Nature

Foucault goes on at great length about the consequences of the new purely political understanding of the state. He says much of interest here—including an aside on how the demystification of nature requires the dramatization of politics (STP 266-7) and a discussion of the origins of balance-of-power thinking (STP 296ff). But most important for our purposes is the discovery of the economy as the essential site of governmentality and regulation as the essential mechanism. The modern state brings with it an obsession with statistics, a need to know about the whole of society: population, economic facts, public health, etc. The fundamental aim of the new category of “police,” Foucault explains, is as follows:

what police thus embraces is basically an immense domain that we could say goes from living to more than just living. I mean by this that police must ensure that men live, and live in large numbers; it must ensure that they have the wherewithal to live and so do not die in excessive numbers. But at the same time it must also ensure that everything in their activity that may go beyond this pure and simple subsistence will in fact be produced, distributed, divided up, and put in circulation in such a way that the state really can draw its strength from it (STP 326).

Something odd is happening. The modern state rejected the pastoral model and gave up on the commitment to tend to the salvation of each soul. Yet it has produced an intensified mode of governmentality that demands totalizing knowledge of every feature of social life. In a sense, Foucault suggests, we see some continuity with the medieval Christian ethos. The point gets even stranger when it comes to nature. The original reason-of-state turn rejected the analogy to nature and the natural order. But the eighteenth century sees the rise of the physiocrats, who rely on a new fetishization of nature and naturalness.

The “politiques,” the champions of reason of state, had rejected natural balance. The physiocrats restore that vision with a vengeance, and thereby inaugurate modern economics. Nevertheless, Foucault continues, there is a crucial difference between physiocratic and medieval understandings of nature:

naturalness re-appears with the economistes, but it is a different naturalness. It is the naturalness of those mechanisms that ensure that, when prices rise, if one allows this to happen, then they will stop rising by themselves. It is the naturalness that ensures that the population is attracted by high wages, until a certain point at which wages stabilize and as a result the population no longer increases. As you can see, this is not at all the same type of naturalness as that of the cosmos that framed and supported governmental reason of the Middle Ages or of the sixteenth century. It is a naturalness that is opposed precisely to the artificiality of politics, of raison d'état and police. It is opposed to it, but in quite specific and particular ways. It is not the naturalness of processes of nature itself, as the nature of the world, but processes of naturalness specific to relations between men, to what happens spontaneously when they cohabit, come together, exchange, work, and produce (STP 349).

If I understand this correctly, Foucault is arguing that the naturalness of the physiocrats is limited to a vision of the “naturalness” of the economic sphere and civil society, of the realm of human “spontaneous” exchange. The role of the state is merely to manage these social interactions so that the natural mechanisms of balance can take root. But the state can in no way understand itself as “natural” in the old medieval sense, which touched a far more comprehensive vision of human life. There is none of the old Thomistic analogy between the king and the “vital principle” of the state.

Instead, we are left, as with Schmitt’s vision of liberal constitutionalism, with a state that aims at perfect self-regulation and equilibrium:

the new governmentality, which in the seventeenth century thought it could be entirely invested in an exhaustive and unitary project of police [cf. Schmitt’s Cartesian sovereign] now finds itself in a situation in which it has to refer to the economy as a domain of naturalness: it has to manage populations; it also has to organize a legal system of respect for freedoms; and finally it has to provide itself with an instrument of direct, but negative intervention, which is the police (STP 354).

So, in short, we have gone from the natural pastoral monarchy of the medievals to the artificial, anti-natural reason-of-state of Machiavelli to the naturalist balance of the market/civil society constrained by the artificial state. The new “natural” economic governmentality limits nature to the commerce of social life, which though self-correcting still requires artificial government support. While initially disavowing the pastoral demand to touch all aspects of social life, the modern state has reconstructed an equally if  not more totalizing omnipotence over every significant feature of the modern world—population, health, and the economy. All this is maintained through a regime of regulation with an eye to balance.