Assault with Blunt History.
No lawyer can serve two masters, unless he makes full disclosure of the potential conflicts of interest. Historians are--or should be--subject to the same constraint. But in the case of Garry Wills' new work, full disclosure of his dual agenda would be of no avail, because its sole consequence would be to put his readers on alert. Wills' intention is to discredit the full range of antigovernment thinkers past and present by showing how and when government can be a source of good. The fatal flaw in A Necessary Evil is that Wills treats history not primarily as an enterprise for unearthing the truth but as a weapon to pummel his contemporary intellectual and political opponents. His aim is to lump all of his adversaries together and place them on the fringes of social and intellectual life, by branding them as the successors of (to use his categories) the "nullifiers," "seceders," "insurrectionists," "vigilantes," "withdrawers," and "disobeyers" who have dotted our history.
This amorphous group of political and intellectual figures shares what Wills thinks to be the misguided belief that "government, as a necessary evil, should be kept at a minimum; and that legitimate social activity should be provincial, amateur, authentic, spontaneous, candid, homogenous, traditional, popular, rights-oriented, religious, voluntary, participatory, and rotational." I for one know of no person or group that embodies this eclectic collection of virtues, but in these characteristics Wills finds the grist to attack in breathless succession all sorts of people and groups, ranging from Louis Brandeis and Earl Warren (for misreading the Federalist Papers) to the National Rifle Association and U.S. Term Limits (for sins that are almost too obvious to bear recounting).
In taking on this dual mission, Wills writes with polish and verve that makes for lively reading. Wills comes to his readers as a persuasive historian and public intellectual, known best perhaps for his careful and innovative reading of Lincoln's Gettysburg address, which garnered him a Pulitzer Prize. In this volume, however, Wills abandons the rifle for the shotgun and seeks to demolish many diverse targets with a single blast. Unfortunately A Necessary Evil is shot through with major errors, especially a pair of key blunders that undermines its assault on free markets and limited government. First, Wills fails to understand the logic of the Lockean system of rights that he attacks for its supposed zero-sum mentality. Second, he has no grasp of the fundamental tradeoffs that lie behind the construction of our constitutional scheme. His impoverished political and constitutional views deny him a theoretical platform from which to discredit his strongest opponents, even as he employs those views to knock down a series of straw men.
Wills' opening salvo against the antigovernment forces is a cute verbal reductio ad absurdum from Henry David Thoreau: Those who accept the motto, "That government is best which governs least," must necessarily endorse the view that no government is best of all. Wills quickly backtracks because his most responsible opponents argue for limited government, not for no government. But he charges them, falsely, with assuming that "we are faced with a zero-sum game. Any power given to the government is necessarily subtracted from the liberty of the governed." In his closing section, Wills returns to this zero-sum theme by claiming that "John Locke's social contract[ldots]teaches that government is founded on a necessary loss of freedom, not on the enhancement of liberty."
But Wills hasn't the foggiest idea about zero-sum games. Every shift of rights between individuals, or from individuals to government, necessarily conserves the sum of legal rights. Two individuals cannot possess the same rights over the same thing at the same time. Likewise, in politics, every advance of government power necessarily shrinks rights that are left to individuals. Let's concede (or insist) on that point. What Wills misses is that in game theory the zero-sum concept refers not to rights but to utilities. A transfer or reassignment of rights rarely, if ever, operates as a zero-sum game in the domain of utility. To a Lockean social contract theorist (like me), the ideal is to support only those forced transfers of legal rights that lead to net gains in social utility by creating positive-sum games, while spurning proposed transfers that create negative or zero-sum results.
To a Lockean, the inability of private individuals to curb violence justifies the mutual renunciation of the private use of force as a positive-sum game. Likewise, the inability of private parties to organize private roads and communications networks requires, at the very least, the use of the state taxation and eminent domain powers to organize large elements of our social infrastructure--another positive-sum game, if rightly executed. To prevent government abuse in the discharge of these functions, the Lockean rejects Hobbes' absolute sovereignty in favor of limited and divided government. He accepts the sometimes "inefficient" system of checks and balances because he fears political abuse will diminish the social gains from collective action. But the Lockean does not shut government down, because he accepts that government can succeed in some areas where markets fail.
Because Wills does not understand the Lockean vision, he is unable to isolate the cases where his own vision of the New Deal--style social-welfare state parts company with its Lockean precursor. Wills misfires when he thinks he refutes Locke by noting that a system of voluntary contracts requires state enforcement. "Popular mythology" may, as Wills contends, make "the state the enemy of the free market." But Lockeans believe in state enforcement of private contracts precisely because they wish to facilitate positive-sum transactions. The question for them is whether the government should dictate the terms of engagement in competitive industries. Wills supports a minimum wage and collective bargaining, but he offers no evidence that these institutions outperform competitive labor markets.
Wills also seeks to build up the image of positive government by showing how it works "a necessary good" in building and managing public highways. The state can define rules of the road, license drivers, require them to wear seat belts, charge tolls, and the like. Again, a Lockean would not dispute these powers (although for complex reasons would be uneasy about requiring the use of seat belts), but would limit the government's ability to allow some people to drive without licenses or without paying tolls. Yet Wills never articulates a set of political or constitutional constraints that he would place on state-run highways--or, for that matter, on state regulation of public utilities. Reading A Necessary Evil would never clue readers in to the perennial tension in the regulation of natural monopolies: how to squeeze out the monopoly profits without confiscating the invested capital. Such issues are simply below Wills' radar.
The proof of Wills' pudding therefore lies only in those cases where he favors government intervention that the Lockean opposes. There are many of these. For example, Wills castigates his opponents for their opposition to national health care. He paraphrases their argument as follows: "Are Americans less protected against threats to their health than citizens of other democracies? Say that is so--but are we to purchase health at the price of liberty? For that is what giving power to the government would mean, including power to provide medical care." His clear implication is that his adversaries oppose national health because it results in the loss of rights, even though it produces obvious benefits to everyone.
But Wills never deigns to show that state provision of health care yields positive-sum outcomes that justify the use of state coercion, relative to the performance of the free market. Here he might point to the information asymmetries in health care markets; but before leaping to national health, he should ask whether third-party agents--employers, unions, religious organizations--can neutralize that edge without nationalizing the whole system. Or he might point to the large number of Americans without health insurance. But he should then ask whether state and federal coverage mandates for alcoholism or psychiatric treatment drive private employers from the health care markets. Or he could look to explain the troubled performance of the Canadian system, or challenge Hayek's major theme that centralized systems do not know how to make capital investments or ration use.
But for Wills a quip is better than an argument, so he veers off to attack the gun lobby in one sentence--"If government has the power to take away guns, all our liberties are gone."--and the champions of local government in the next--"If the states, as lesser units of government, cede power to the central government, tyranny impends." Nothing in his rendition of his adversaries' positions is modulated or tempered, for Wills writes as though to state the most extreme version of a proposition refutes all qualified versions of the same thesis.
Given his regrettable tendency to hyperbole, it is not surprising that Wills fares no better as a constitutional theorist. Here his main targets are the defenders of states' rights--a motley collection, for him, of nullifiers, seceders, and insurrectionists. So preoccupied is he with the extremists that he never addresses the profound questions of federalism before the Supreme Court today. The issue is not the breakup of the Union but a more nuanced dispute regarding the extent to which federal law limits state sovereignty.
For example, the Supreme Court has held that states cannot be sued in either federal or state court for copyright or patent infringement, a decision that has left the intellectual property bar agog. It has also held that state governments cannot be required to conform to the dictates of age discrimination law. To a good Lockean, the first case seems wrong: The U.S. Congress has a specific constitutional grant to issue patents to inventors and copyrights to authors. Why, then, can it not protect these property rights against state incursion? The age discrimination case, however, seems right: Letting states contract freely with their employees looks like an element of state sovereignty that Congress could not override. Yet while bashing away at the fringes, Wills misses the only debate that really matters.
He does, however, try to say something about the allocation of power between the federal and state governments. He starts off sensibly enough by attacking an exaggerated version of the Reaganite trope that local governments are always preferable to the national government because they are closer to the people. He is quite right to warn us of the risk of local oppression, such as segregation in the South. But from that point on, it is all downhill. Wills takes great pride in noting that Madison supported a national veto by the Congress in all cases of state legislation. That provision, which was soundly rejected at the constitutional convention, would have indeed reduced states from limited sovereigns to federal pawns.
But what about the Constitution we do have? Here Wills uses a paintbrush so broad that it covers the barn with a single stroke. First, as part of his dubious myth-exposing enterprise, he rejects the notion that the three branches of the federal government--legislative, executive, and judicial--are coequal. He believes that in the long haul, Congress, with its arsenal of powers, is the dominant player in our system. But what about the doctrine of enumerated powers that, unlike Madison's veto, did make it into the Constitution, and that reserved at least some local matters for exclusive regulation by the states? At this point, Wills is forced to address the place of the Commerce Clause, which gives Congress the power to regulate "commerce among the several states."
In 1824, Chief Justice John Marshall limited that conception to goods shipped in interstate commerce and the roads and rivers used to transport them. By 1942, the New Deal Supreme Court told us that feeding grain to one's own cows may be regulated under the commerce power. In 1995, the modern Court reversed field a bit by holding that Congress could not prohibit the carrying of guns within 1,000 feet of a public school. As this is written, the Court must decide whether an alleged dormitory rape may be punished under the Violence Against Women Act. This tangle of structural issues represents a powerful judicial challenge to congressional action. But it escapes Wills' gaze. Loners like Timothy McVeigh get all the ink.
Wills shows equally little comprehension of the distribution of powers at the federal level. Judicial review--the power to invalidate democratically passed federal (or state) laws--has always been regarded as a worthy competitor to congressional power, raising what has been aptly called "the countermajoritarian difficulty." Yet Wills' take on that epic question must be quoted to be believed: "If the Supreme Court declares a law that Congress has passed unconstitutional, it is not asserting judicial supremacy, but upholding a legislative act, that of the Constitution whose creatures the judges are." Wow! John Marshall's 1803 landmark decision in Marbury v. Madison is sidestepped by a verbal trick that equates the Constitution with congressional legislation, thereby ignoring the entire range of textual, historical, and structural arguments arrayed on all sides of the question.
The errors keep coming. So wedded is Wills to his vision of federal dominance that he messes up the subsequent history of judicial review of economic and social legislation. Madison, he says, was wholly vindicated by "the modern extension of due process. Now the federal government does exactly what Madison was calling for both at the convention and the first Congress--it blocks states from making law violative of individual rights." It would have been nice for Wills to note that it was not Congress but the Supreme Court that did the lion's share of this work, and that it did so under the 14th Amendment to the Constitution, adopted in 1868. And Wills might note that the Court's protection of individual rights was used largely to strike down, at the state and federal levels, those very types of legislation that he thinks a good society should provide: a minimum wage, limits on work hours, collective bargaining statutes, and the like. (Most of these interventions are inconsistent with the Lockean view of limite d government.) How odd and uninformed it is for Wills to find in judicial activity the belated realization of his own version of Madison's vision!
Wills' litany of constitutional blunders continues to the end. To bolster his claim of congressional dominance, he observes that the president can only propose legislation and treaties, while Congress disposes of them. Apparently, he has not heard that treaties must be approved not by Congress but by a vote of two-thirds of the senators present. He writes as though Congress can remove officers of the federal government: even in the wake of the Clinton fiasco, he does not recall that the House has the sole power to impeach and the Senate the power to convict. Indeed, he fails to understand that in many ways the House and Senate have separate and distinct powers, such as in determining the qualifications of their own members. Likewise, he is wrong to say that the courts cannot "touch" the president, unless he thinks that the Supreme Court's rejection of Clinton's assertion of absolute presidential immunity in the Paula Jones case doesn't count.
And so it goes. Wills' clumsy portrait of our Constitution is a symptom of the deeper flaw in this misconceived book, which uses history as a club to win current debates on law and policy to which Wills as a historian contributes nothing. Readers can enjoy Wills' description of the ragtag state of the revolutionary militia, his elegant cameo of John Taylor of Caroline, or his quick summary of the Whiskey Rebellion. But on the grander points of political theory, economic analysis, and constitutional law, Wills displays only misplaced erudition, marred by unnecessary confusion.
Richard A. Epstein (email@example.com) is the James Parker Hail Distinguished Service Professor of Law at the University of Chicago. His latest book is Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Press).
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|Author:||Epstein, Richard A.|
|Article Type:||Book Review|
|Date:||May 1, 2000|
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