February 23, 2010

the fury of democracy

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A few Federalist essays have described a benefit to the scope of federal elections; in quick summation: with a nation-wide pool of candidates free from local squabbles, the very best policy and governance thinkers will rise to federal office.  (Each Publius has offered the argument; Jay in F3, Madison in F10, and Hamilton in F27.)  It has been, on my first impression, a meritocracy argument. And it is, tonally, a very different argument for national leadership than another theme that Professor Ferling describes in A Leap in the Dark. In the chapters covering the Articles of Confederation and the Constitutional convention, Ferling describes the creeping fear – buyer’s remorse? – that the Nation may swing from one problematic pole (monarchy) to another (hasty democracy). Ferling describes the eagerness of many delegates “to limit democratic impulses.”

I always think it’s worth remembering the neoclassicism flowering at the end of the Enlightenment; and, more importantly, really, the historiographical context. Then, as now, students of Greek history learned that while, yes, Athenian democracy was an important human development, the institution ultimately brought Athens down because the demos couldn’t govern. By the time I reached college, the story was that the voting poloi’s livelihoods relied overwhelmingly on war – so they voted for war all the time. And they voted myopically. And with blinders. The point being, the masses were not good at governing. Our Founders had basically the same understanding of that history, which reinforced a general notion that you don’t want straight democracy.

And so, this different theme regarding the makeup of the national leader class has a slightly different feel than meritocracy. Ferling writes that most founders, forgetting that they were upstarts by Londond’s standards, regarded the post-war Congress as a bunch of scrubs, elected by unthinking populist-driven localities. I actually think Sarah Palin may be a bit of an analogy.

Also, it was interesting to read about that fear now, during the Great Recession. The policies passing through state governments, so fear-provoking to several founders, sometimes resulted in creditors losing their claim to money because of debtor-friendly relief laws. Shay’s Rebellion started as a foreclosure protest. The big deal, among nationalists startled by these developments, was the need for a federal government that could protect property. The states, they felt, were unable to stand up for property rights (of creditors and land owners) against popular sentiment for debt-relief and redistributionists.

Ferling offers a few quotes:

“Our chief danger arises from the democratic parts of our constitutions.”

The “people … should have as little to do as may be be about the Government.”

The “evils we experience flow from the excess of democracy.”

Randolph urged checks against “the turbulence and follies of democracy” and maintained that ways must be found to restrain “the fury of democracy.”

The Constitution “embraced what Madison subsequently called the ‘republican remedy’ against radical change.” The factions (F10) would prevent any hasty, democratic policy-making. Here is Ferling:

Indeed, Madison boasted proudly that the system would “refine and enlarge the public views,” resulting in national policies “more consonent to the public good than if pronouced by the people themselves.”

…But somewhat cryptically he also explained why this new national government would not be susceptible to the sort of substantive changes that had occurred in several states. Few of the “new men” so visible in state politics, Madison said, were likely to rise to this higher level. The “vicious arts by which elections are too often carried” in the states would be unavailing in the national electoral systems by this convention. …National officials would be “a better class” of society….Madison’s communication, first to the majority that attended the convention, then to like-minded nationalists throughout the county, was that the way had been found by which to make radical change difficult, if not impossible. Change at the state level would be impeded by the national government. At the national level, the separation of powers and numerous checks and balances erected within the proposed new constitutional system were to constitute purposeful barriers to change. …If this Constitution went into effect, the “changeableness” that had been set afoot by the American Revolution would henceforth be unlikely or, at best, would occur at a glacial pace.

Fewer of the “new men” would rise to national leadership. In the context of these few quotes, that fear of the new man is a much different driver, regarding national leadership, than the big pool, meritocracy driver.

A meritocracy implies an egalitarian playing field and one in which particular talents are recognized with all other things being equal. The bigger the net, the better chance of finding the right fish. There is something quite different to the notion that we need national leaders to keep a status quo.

I cannot help but think of Hamilton and Madison. Hamilton, a foreign bastard, could become a national leader because of meritocracy. Madison, the wonk-gentleman, typifies the landed interests prominent among most other founders.

They both predict, in their Federalist essays, a finer breed of national leaders. But, I wonder if their assumptions and motivations for that leadership were quite unalike.

 

December 10, 2009

F26 and the Golden Mean

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F26 continues Publius’s argument against restraining the federal government’s ability to provide for the national defense (principally by means of maintaining a standing army). He focuses in this essay on how the Constitution provides checks and balances within the federal government itself, which he argues are sufficient in and of themselves to restrain the army’s power—thus, no need to restrict such power by tipping the balance of federalism more towards the states.

I haven’t thought a lot about the connection between the Constitution’s checks and balances and the Aristotleian concept of the Golden Mean, but F26 draws the parallel pretty explicitly. The first paragraph mentions that war (specifically, in this case, the Revolutionary War) rarely gives rise to moderation in the public mind. “That happy mean” between “the energy of government” and the “security of private rights” is a “delicate and important point.” And war is a blunt instrument. It is bound to land us too far on one side or the other of the delicate balance. Publius offers a scary anti-vision where the USA bounces from one failed Articles-of-Confederation-like governmental structure to another, and then to another (as he puts it, “one chimerical project to another”), never actually settling in the felicitous middle.

Aristotle says that the virtues are those qualities which are warped by either deficiency or excess.  E.g. courage: someone who lacks all courage and constantly runs away is a coward, while someone who fears nothing is rash.  In this way the virtue of courage depends on a “mean” between two extremes.  (See Nichomachean Ethics, Chapter 2.)  Similarly, F26 seems to argue that if we have too little governmental power on the one hand, our social contract breaks down, and we may as well dispense with the states and nations completely and govern on the county level. The evils of the other extreme, too much governmental power, hardly need to be described, since the audience has only recently emerged from a war against what they perceived to be absolute monarchy. Constitutionally forcing Congress to re-evaluate military funding every two years, Publius argues at length, strikes the perfect balance in the standing army debate, because “it is impossible that the people could be long deceived; and the destruction of [a project to undermine the civil government] would quickly follow the discovery.”

It’ll be fun to watch future Federalist Papers for other instances of such “golden means” being struck by the proposed Constitution.  No question the ancient Greeks were a big influence on the Founding.

 

October 5, 2009

good reads – criminal law

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A book review, in the University of Chicago Law Review, of James Whitman’s The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial. Professor Gallanis wrote the review, and looks into Whitman’s answer to the question, from where did the notion arise that we release a defendant upon a reasonable doubt of his guilt.

 

September 7, 2009

“A Fatal Instrument to Overturn the Public Liberties”: The Anti-Federalist View of the Standing Army

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“The man who reproves another for a fault, should be careful that he himself be not guilty of it.”  — Brutus,  Essay IX, 17 January 1788, in a rebuttal of Federalist Paper 24

Some off-blog discussions with Andrew got me curious about whether the Anti-Federalists truly deserved F24’s bile.  Purely as rhetoric for its own sake, the Paper’s strong language could serve as a check to current political discourse – but if Publius’s criticism was actually warranted, it would pack even more of a punch.  So I dusted off my copy of The Anti-Federalist, which is actually an abridged version of The Complete Anti-Federalist, edited by Herbert J. Strong.  Even within the constraints of the abridged version, the Anti-Federalists have lots and lots to say about the evil of standing armies!  Interestingly enough, the majority of anti-standing army essays seem to have been written after F24.  Apparently Publius’s angry expostulations set off quite the firestorm of reaction on this particular topic.

But I’m getting ahead of myself:  first, as to whether the cold rage of F24 fell upon deserving heads:  I would say, in the end, no.  Of the Anti-Fed writings that predate F24’s 12/21/87 publication, consider the following:

In despotic governments, as well as in all the monarchies of Europe, standing armies are kept up to execute the commands of the prince or the magistrate, and are employed for this purpose when occasion requires:  But they have always proved the destruction of liberty, and [are] abhorrent to the spirit of a free republic. . . .  A free republic will never keep a standing army to execute its laws.  It must depend upon the support of its citizens.

– Brutus, Essay I, 18 October 1787, writing, as Publius does, “To the Citizens of the State of New-York”

Patrick Henry also weighed in, somewhat less coherently (but we forgive him, since this is only the transcription of a speech rather than a considered piece of writing):

Did you ever read of any revolution in any nation, brought about by the punishment of those in power, inflicted by those who had no power at all?  You read of a riot act in a country which is called one of the freest in the world, where a few neighbours cannot assemble without the risk of being shot by a hired soldiery, the engines of despotism.  We may see such an act in America.  A standing army we shall have also, to execute the execrable demands of tyranny:  And how are you to punish them?  Will you order them to be punished?  Who shall obey these orders?

– Speech to the Virginia State Ratifying Convention, 5 June 1788

There is anger and fear here, but both Brutus (whoever he was) and P. Henry also appeal to reason and to a sober consideration of the examples of history, as Publius himself loves to do in his more didactic moments.  Even more tellingly, the United States has historically always refused (and continues to refuse to this very day) to deploy its military on American soil.  So in that sense, the Anti-Feds have won out.  In short, Brutus and Henry voice entirely legitimate objections, and it is hardly fair of Publius to label them unprincipled or disingenuous or sinister.

Brutus was apparently of the same opinion, because in a mid-January 1788 address to the New York citizenry, he devotes a good bit of space to laying out a blow-by-blow refutation of F24, which he prefaces with the following:

A writer, who is the boast of the advocates of this new constitution [take that, Hamilton!], has taken great pains to shew, that this power [of maintaining a standing army] was proper and necessary to be vested in the general government.  He sets out with calling in question the candour and integrity of those who advance the objection, and with insinuating, that it is their intention to mislead the people, by alarming their passions, rather than to convince them by arguments addressed to their understandings.  The man who reproves another for a fault, should be careful that he himself be not guilty of it.  How far this writer has manifested a spirit of candour, and has pursued fair reasoning on this subject, the impartial public will judge, when his arguments pass before them in review.

– Brutus, Essay IX

Hamilton, unlike the Anti-Feds, pretty much deserved this kind of dressing down.  And what is more, Publius really set himself up for a hypocrite’s fall with F24’s over-reaction.

All that said, The Ham still can’t be beat for pure rhetorical beauty.  And even if the words of F24 weren’t entirely disingenuous, I still wish more of today’s politicians and talking heads would take them to heart.

 

August 6, 2009

The Maniac, Maniac on the Convention Floor (Federalist 23)

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Lest, by the 23rd installment of pro-Constitution newsprint, the reader grow dull-eyed, Hamilton awakes any sleepers with a new title urging an energetic government. The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union.

I like that adjective. Civics classes echo with “powerful” and “centralized,” but I don’t remember hearing “energetic” to describe federal government, in a good light nor dimly. Indeed, the government staff employee union’s PR rep would do well to pick up the moniker in defense against the paradigm of bureaucratic do-nothing laziness.

In any event, Hamilton focuses the essays, with F23, on government power, and proposes three clear questions for deliberation on the subject: (1) what ought the federal government provide (2) how much power is needed to provide it, and (3) upon whom ought that power operate?

Federal government, writes Hamilton, provides for defense, peace (ie, stability against internal riots and revolts, and against external attacks), interstate and foreign commercial regulation, and foreign relations.

Hamilton frames the question of power as he does because he wants the answer to #2 to flow from #1. Rightly, it seems to me, he stresses throughout the essay that the allowed extent of power ought relate to the goal for which power is granted. So, I initially thought Hamilton would urge a spectrum of power relative to the nature of the particular goal.

For the goal of common defense, the federal government needs power to raise armies, build fleets, and govern and provide for both. To do this, the federal government needs, writes Hamilton, limitless power. Also, the government needs that power to operate over individuals, rather than state and local governments; … “we must discard the fallacious scheme of quotas and requisitions as equally impracticable and unjust.”

So, in my notes I drew a two-sided arrow that I figured would represent the sliding scale of power-quantity, with “limitless” at one pole.

But, all of Hamilton’s goals of federal government turned out to require limitless power. “The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend.

So much for my power diagram.

 

July 29, 2009

Federalist Paper # 22: Ten Things I Hate About the Articles of Confederation, Part II

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We left off a few months ago* with F18, F19, & F20’s romp through world history, which served to explain how weak federations of small sovereigns always tend fail as effective governments. The next two Papers are Publius’s gripe list about the United States as constituted under the Articles of Confederation (AoC). As my colleague Andrew discussed assiduously in our last Federalist post, F21 contains three complaints: (1) the AoC provides no way for the federal government to enforce its laws against the states; (2) in the case of either homegrown insurrection or foreign invasion, the AoC does not oblige, or indeed permit, other states to come to the assistance of the beleaguered state; and (3) there is simply no efficient or fair way to split up the costs of governing among the existing states, so the AoC necessarily fails at it.

F22 lists the following additional gripes: (4) the USA under the AoC lacks the power to regulate commerce, so no foreign countries want to enter into trade agreements with us; (5) the power to raise a federal army exists in theory but is way too weak; (6) the states have equal suffrage even though they are very different in size, wealth, and power; (7) there is no federal judicial power, leaving the country subject to the vagaries of 13 state supreme courts; and (8) the AoC was approved by the states, but never by the people directly. It is on this final point that F22 waxes most eloquent:

“[There is a] necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American Empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure original fountain of all legitimate authority.”

Here we have the strongest statement yet of a major (maybe even the major) Federalist theme: that sovereignty should flow directly from the people — not from the people to the states, and only then on to the federal government. This was the whole point of F18-F20, which discussed examples from both ancient and modern history in which attempts to form a coalition of governments failed miserably. (Incidentally, I think it is really funny that, in four of the last five Federalist Papers we’ve discussed on here, Publius uses the word “imbecility” to describe governments of governments.)

Wonder what Publius would think about the United Nations? Or the World Trade Organization? NATO? The EU? The list goes on . . . . Certainly these bodies suffer from many, many, many of the defects Publius deplores. But arguably, they are not all TOTAL disasters. Has the world changed so much since Publius’s time, that his concerns no longer encompass the whole story . . . or has he just been wrong all along?

* One cross-country move, one job change, and one bar exam later, Lily is finally jumping back into blogging The Federalist! Thanks to APO for keeping the flame alive!

 

June 26, 2009

Death of Contract and Legal History II (how do cases become rules?)

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By the end of the 19th Century, Gilmore writes, several “rules” of Contract law had been attached to what were once specific cases.  The rules “had been generalized into abstractions that had little or nothing to do with the cases themselves.”  (Ch. 1).

In the case of Stilk v. Myrick, two seamen deserted a ship and the master promised the remaining men the divided wages of the deserters if those remaining would continue on without additional help.  When the master ultimately refused that promised payment and the seamen sued, the judge ruled that the plaintiffs were entitled to no more money than they originally signed on for.

In 1920, Professor Williston, in his treatise on Contracts, used the case name to label a rule on contract modifications, stating that no new contract can be formed based on work already required by a contracting party.  Gilmore complains that Williston’s rule from Stilk v. Myrick makes no sense in light of the facts from the case, as, indeed, the seamen presumably took on much more difficult and different roles down two men.  Gilmore dedicates 7 pages to the question: How did the name from one case came to stand for an abstract and un-fully-related rule?  He explores maritime law and the “vagaries of early nineteenth century English case-reporting.”  My impression from Gilmore’s telling is that something like a conventional wisdom built up around the reasoning in Stilk.  By the time Williston used the case, the facts had dissolved and a common understanding remained – a nugget-sized principle that sparked in heads when hearing the case name arose.  Sort of like Marbury‘s sparking the notion of judicial review.

In any event, Gilmore runs the reader through a couple more case-to-rule transformations.  As the cases become rules, the forgotten facts seem to rub akwardly against the rules.  Also, the rules conform with the theory of consideration that Williston believed essential to contract formation.  In his second lecture, Gilmore discusses Justice Holmes’ belief that “the inevitable process of legal development” was from subjective to objective; from particular cases to generaly applicable rules.  The trend amplifies what Gilmore noted in his first lecture as he described cases becoming rules.  It is also clear that, if subjective/specific cases become objective/general rules, someone does the synthesizing – someone objectifies the legal principles.  Gilmore makes that point, though I didn’t notice him making the point outright.  Rather, we see consideration, a general avoidance of damages, and a hesitation to contract formation as what must have been biases among those that cemented Contract rules.

 

June 11, 2009

Death of Contract and Legal History

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The forward’s writer to my edition wonders whether Grant Gilmore might have parodied the central criticism of the book: creating legal theory with oversimplified and fabricated legal history.  To be sure, Gilmore presents, in Death of Contract, an approximately 100-years’ history of the law.  And, his account of contract theory is tidy  (the chapters are telling: Origins, Development, Decline and Fall, Conclusions and Speculations).

Gilmore’s history of contract law sets up, ultimately, his broader statement that the law reflects its socio-political environment.  That, alone, is not spectacularly insightful.  Gilmore couples the thought, though, with his observation that legal theoretical structure swings between classical and romantic trends–between, that is, tidy categorization (classical) and improvised chaos (romantic).  In the law of “civil obligation,” Gilmore believes contract law was shaped into a classically organized theory beginning shortly after the Civil War, and then, after that order decayed, reached the height of romanticism in the late 1970s.  The book ends with a predicted return to order.  Gilmore, as I read him, did not appear dedicated to either.  But before we tackle the substance of that debate, it is worthwhile to linger on Grant Gilmore’s account of legal history.  And, as history requires characters to manifest a story, Contract is the protagonist in this tale.

A hundred years before Gilmore’s lectures, “classical” contract theory arose.  That it arose irks Gilmore, and he dedicates the tone and asides in the first two lectures to emphasizing his disapproval.  The first lines refer to Professor Langdell’s casebook on Contracts, published in 1871; the first casebook on the subject, and the beginning, according to Gilmore, of an unnecessary and damaging exercise in legal categorization.  Oliver Wendell Holmes, Jr. and Samuel Williston carried, cleansed, and made absolute the theory of Contract with publications in 1881 and 1920, respectively.  But, by 1950, Professor Corbin was dismantling the artificial edifice of Contracts theory.

Langdell, then, did little more than launch the idea that there was – or should be – such a thing as a general theory of contract.  The theory itself was pieced together by his successors – notably Holmes, in broad philosophical outline, and Williston, in meticulous, although not always accurate, scholarly detail.  At this point it is necessary to give some content to what we may call the Holmes-Williston construct – which I shall attempt to do impressionistically rather than scientifically.  Having accomplished that chore, we can return to the far more interesting business of speculating on why Langdell’s idea, brilliantly reformulated by Holmes, had the fabulous success it did instead of going down the drain into oblivion as a hundred better ideas than Langdell’s do every day of the week.

Gilmore refers to the Langdell/Holmes/Williston line as “classical contract” theory, and I’ll do the same.  What is classical contract theory, and why jurists create it?  In his chapter, the “Origins,” of classical contract theory, Gilmore goes into the details of a few cases that were picked up in early Contracts treatises “because … the devious process by which the ‘cases’ became the ‘rules’ of the general theory of contract can be understood only microscopically.”  Indeed, that transformation of “cases” to “rules” is crucial element to the artificial building up of contract theory.

(I’ll continue this post presently.)

 

May 28, 2009

The Death of Holmes

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For folks like me that went into law school following four years in the liberal arts, a tough transition was that from a semester of a couple dozen light paperbacks to only five, heavy, hardback casebooks.  The latter add gravity (in every meaning) to your bookcase, but the former are far more pleasurable to carry into the coffee shop.  Moreover, in college it is your job to read your professor’s several favorite gems – something our lacking diciplines allow too little time for outside the academy.

Fortunately, law school provides as much history, philosophy, and so on that you want to take from it.  Not knowing that, though, I remember my relief in the August before my first semester.  Having picked up the requisite volumes for Torts, Civil Procedure, Criminal Law, and Property, I saw next to the casebook for Contracts that the professor added one familiar gift to liberal arts set: a little paperback.  My hopes were fulfilled upon thumbing through the little book and seeing that it was a book of legal theory.  Not cases, not outlines, and not tips for passing a test; but theory.  And it had a bold title: The Death of Contract.  How, I wondered, was my Contracts professor going to apply this?

He didn’t.  We never read it, and it gathered dust on my bookshelf for the past six years.  My copy has an unappetizing grey/blue cover and I assumed it was simply a book about contract law, which I was happy to avoid.

I picked it up the other day while shifting some books around to make room on the shelf.  Since I was supposed to be cleaning, I naturally began idly reading the forward to the book.  Hmm, so this is a response to Oliver Wendell Holmes’s The Common Law.  This is about how law develops.  This is about law and language’s intertwined relationship.  And it’s so short.

So I brought Grant Gilmore’s The Death of Contract along for plane reading en route to a recent wedding, and have read about half now.  In a nutshell, he uses the rise of the common law of contracts to talk more generally about common law, or, judge-made law.  Really, it is not so right to say “the rise of the common law of contracts,” and this gets to Gilmore’s point.  There has long been plenty of useful law to talk about when arguing over contracts.  Gilmore’s gripe, if I am accurately getting to it, is with the manner in which the history of contract cases was solidified into a common law worthy of solidification into a treatise.

I will come to his attack on Holmes in a later post.  This one is just an introduction – if you have the book handy, have a quick read and join the book club.

 

July 9, 2008

And more summing up of the first movement…Federalist 15

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F15 is Hamilton’s take at what Madison did in F14 – a quick recap and segue into the next essays, which as Hamilton informs: “the point next in order to be examined is the ‘insufficiency of the present Confederation to the preservation of the Union.’”  Sneak peek: “The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist.”  From what I can tell, he structured that sentence as such so that it would be required to read the essays that will flesh the idea out.

To bring home the problems of turning our collective back on union, Hamilton notes that “[w]e may indeed with propriety be said to have reached almost the last stage of national humiliation.”  Not only will we be invaded and rub violently against each other, we are already in a tight spot.  We owe debts to foreign governments and our vets, we can’t freely navigate down the Mississippi, we have foreigners posted at forts in our territory…and we can’t do a dang think about it.

And so the essay goes.  But a few points:

To what sacred knot does Hamilton refer while introducing his summary of the horribles that he and the gang paraded F1 through F13?

I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.

Somewhere in high school or college, a teacher honored Lincoln’s transition of our history by noting that, before the Civil War and Lincoln’s tenure, we would have said the “United States are…” – then we said “the United States is….”  Hamilton confounds this twinkle of history by pulling off both.  Was he a man of ante- and post-bellum sensibilities?

Except as to the rule of appointment, the United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulations extending to the individual citizens of America.

(emphasis mine)

Most of the essay deals with the (in)ability to make and enforce domestic laws and gain international respect (and saftey).  Let’s wait for the following essays to flesh out the ideas…I look forward to them.

 

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