Protagoras and the Marketplace of Ideas

John Stuart Mill’s famous celebration free speech is often pithily summarized as a defense of the “market place of ideas.” That characterization is not perfectly appropriate for the free-speech arguments set out in On Liberty, but it’s good enough. Mill isn’t quite as naïve about free speech as the metaphor might imply, but he’s still pretty naïve: 

Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

It's not unreasonable to associate that argument with a crude account of market dynamics in which competition promotes the good (the true) and drives out the bad (the false). For what it’s worth, a much younger John Stuart Mill had far more sensible things to say about free speech:

I have not any great notion of the advantage of what the ‘free discussion’ men call the ‘collision of opinions,’ it being my creed that Truth is sown and germinates in the mind itself, and is not to be struck out suddenly like fire from a flint by knocking another hard body against it. (emphasis original)

While Mill himself never directly uses the metaphor, the "market place of ideas" is explicitly invoked by Plato in his Protagoras. (I like the Protagoras, I’ve blogged about it before).

Protagoras, the most famous of the sophists, has come to Athens to share his teachings. Hippocrates, a young Athenian, wants to learn from the famous master, and so he runs to Socrates so that they might go together. Hippocrates is keen on seeing these two wise men duke it out. (He gets his money's worth, so to speak). 

Socrates is taken aback by Hippocrates’ enthusiasm, and he warns the young gentleman against the dangerous effects that can come from exposure to sophistry. Sophists, according to Socrates, are “a kind of wholesaler or retailer of the wares by which a soul is reared.” In other words, they are salesmen of ideas. And because the ideas they sell relate to the state of one’s soul, they are salesmen of the most dangerous sort.

Socrates explores the market-for-ideas analogy:

And see to it, comrade, that the sophist, in praising what he has for sale, doesn’t deceive us as do those who sell the nourishment of the body, the wholesaler and the retailer. For they themselves too, I suppose, don’t know what among the wares they peddle is useful or worthless to the body—they praise everything they have for sale—and neither do those who buy from them, unless one happens to be an expert physical trainer or a physician. So too those who hawk learning from city to city, selling and retailing it to anyone who desires it any given moment: they praise all the things they sell. But perhaps some of these as well, the best one, are ignorant of what among the things they sell is useful or worthless to the soul. And so too are those who buy from them, unless one happens to be a physician expert in what pertains to the soul. (emphasis mine)

Socrates has pointed out something important. If the peddlers of ideas are like salesmen, then of course we should not trust them! Salesmen aim to sell. And so they will lie and deceive in order to make the sale. Worse than that, often the salesmen don’t even know the value of what’s on offer! They don’t care. Again, the goal is just to make the sale. There are potentially devastating information asymmetries in this market! A market of ideas is a failed market if ever there was one.

Only an expert can properly judge the quality of the products for sale. But this raises a problem. If the expert can already discern the good ideas from the bad, why would he need to buy the ideas in the first place? And if the buyers in the market lack the capacity to judge what it is they are buying, why should we expect the “good” ideas to out-compete the bad ones?

Socrates continues:

If, then, you happen to be a knower of what among these things is useful and worthless, it’s safe for you to buy learning from Protagoras and from anyone else whatever. But if not, blessed one, see that you do not roll the dice and run risks with the dearest things. For there is indeed much greater risk in the purchase of learning than there is in that of foods: it’s possible to buy food and drink from the retailer and wholesaler and to take them off in other containers; and it’s possible, before taking them into the body by drinking or eating them, to set them down at home and take counsel by calling upon someone knowledgeable as to what one should eat or drink and what one shouldn’t and how much and when. As a result, the risk involved in the purchase isn’t great. But it isn’t possible to carry off learning in another container. Instead, for one who has paid the tuition and taken the instruction into the soul itself through having learned it, he necessarily goes off having already been harmed or benefited thereby. (emphasis mine)

The marketplace metaphor trivializes ideas in a terribly misleading way. Ideas aren’t commodities. They are not the sorts of things we can try out and toss out when we tire of them. Once we are educated in a particular way, our soul has been shaped. There is no more competition, no more market pressure. We are done for, and so we better hope that the education we’ve received was a good one! That’s why exposing people (especially young people) to noxious ideas isn’t a harmless exercise of pedagogy, it is a dangerous act that can produce irreparable harm.

Quotations are from Stephanus pages 313-314 using the Robert Bartlett translation.

Federalist 50 and Judicial Review

In Federalist 49, James Madison famously rejects Thomas Jefferson’s proposal of relying on frequent appeals to the people for the purpose of “altering the constitution or correcting breaches of it.” In practice, Jefferson thinks this maxim would require regular constitutional conventions. Madison raises a series of “insuperable objections” to Jefferson’s proposal. He notes how frequent appeals to the people would produce frequent changes to the constitution (often for the worse) that will undermine the necessary “reverence for the laws." Even worse, Madison predicts that regular conventions would strengthen the legislature at the expense of the judiciary and the executive. That violation of the separation of powers would constitute, as Madison puts it in Federalist 47, “the very definition of tyranny.”

In Federalist 50, Madison turns to an alternative proposal. Rather than frequent appeals to the people, Madison considers the possibility of “periodical appeals” as the means “of preventing and correcting infractions of the constitution.” Importantly, the topic has moved from popular appeals to alter the constitution (Jefferson’s democratic proposal discussed in Federalist 49), to popular appeals merely to enforce the constitution (Madison’s topic in Federalist 50).

This more limited focus bears on the topic of judicial review. Madison is no longer thinking about how the people may exercise their sovereign right to amend the constitution. He is thinking more narrowly about institutional mechanisms to guarantee the constitution's separation of powers. To this end, Madison considers a scheme tried out in Pennsylvania between 1783 and 1784. The state experimented with a “council of censors,” the purpose of which was to inquire “whether the constitution had been violated; and whether the legislative and executive departments had encroached on each other.”

Unfortunately, Madison concludes, “this censorial body, therefore, proves at the same time, by its researches, the existence of the disease; and by its example, the inefficacy of the remedy.” The most important reason for its failure was its persistent partisanship. And against those who hope that we will one day be free of partisanship, Madison wisely observes that "such an event ought to be neither presumed nor desired."

Specifically, Madison lists five reasons why the council failed. (1) The council was composed of political partisans. (2) The leading members of the council had themselves been members of the executive and legislative branches, and so they were tasked, in effect, with assessing the constitutionality of their own conduct. (3) Because of the above, the council immediately “was split into two fixed and violent parties.” As a result, the councilors were moved by tribal passion rather than cool reason. (4) The council did not necessarily do a good job interpreting the constitution. And (5), there is no reason to believe that the other branches of government would obey rulings of the council.

My question here is how might these objections apply to our contemporary system of judicial review. There are of course a number of significant differences. Regarding objections (1) and (2), our current judiciary is composed of career judges and lawyers who usually have not themselves served in significant positions within the executive or legislative branches. This alleviates the potential difficulty of judges passing judgment on the constitutionality of their own actions. Objection (5) also no longer applies, as our current system grants the courts the final, authoritative say on matters of constitutional interpretation.

But objections (3) and (4)—not to mention the general principle underlying objections (1) and (2)—may well apply to judicial review as it is practiced by the Supreme Court today. It is impossible to de-politicize significant questions of constitutional adjudication. Our judges are political figures who can be generally relied on to rule in a manner that is consistent with the political aims of the party that appointed them. They are partisans. Or they otherwise have miraculous come to hold judicial philosophies which just so happen to align with their political party's priorities. Madison's reasons to be wary of partisans on the Pennsylvania council of censors can accordingly be applied to partisans on the federal Supreme Court.

Madison's preferred mechanism to guarantee the separation of powers is laid out in the next paper. Federalist 51 famously argues that the only way to maintain an equilibrium of powers is to pit the ambition of the legislature against the ambition of the executive. In my view, the prediction that the legislature will be inclined to jealously guard its prerogatives is the single most consequential error in Publius’ scheme. That said, our contemporary system of adjudicating constitutional disputes—granting the Supreme Court absolute power—has also failed. It is notable that Madison never seems to consider the possibility of the judiciary playing the role it currently does. I suspect if he did, the objections he lays out in Federalist 50 might apply to a proposed system judicial supremacy.

Perhaps Jefferson was right. Occasional appeals to the people in some form may be the best means of preserving the constitution and may be the most legitimate means of altering it. Jefferson was probably overzealous in calling for such frequent constitutional conventions. But his basic analysis has proved fairly prescient. Madison’s greatest fear was that the legislature might absorb too much power. But some branch of government will always step in to interpret (and effectively alter) the constitution. Our three options are: (1) A ceasarist Presidency; (2) A Supreme Court that laughably pretends to be apolitical; or (3) A Congress that takes the lead in interpreting (and effectively amending) the constitution. 

My sympathies lie with (3). A Westminster model of parliamentary supremacy strikes me as the most legitimate and effective means of dealing with questions of pure politics. But a substantial difficulty persists. Somehow the Congress must rediscover the ambition and the responsibility assumed by Publius, but entirely absent in contemporary political life.