Leviathan with a human face?
By Gary Gerstle
472 pp.; Princeton
University Press, 2015
It's tempting to view American history as linear: the Founding was a great victory for individual liberty, which endured for a while but then entered a long decline up to our days. But what to make of the treatment of blacks and American Indians during the "liberty" period? And so there is an alternative linear history that sees the Founding as only a first step, with liberty growing in subsequent eras, through our still-imperfect but more glorious times. As we see in Gary Gerstle's new book Liberty and Coercion, matters are more complicated.
Gerstle, a professor of history at the University of Cambridge, traces the evolution of liberty and coercion in America. He illuminates a troubling paradox of American government: the Revolution and the Constitution produced both a limited central government along classical-liberal lines, and "miniature Leviathans" at the state level. Liberty was supposed to be protected by federalism and the Bill of Rights at the national level, and by democracy at the state level. "Liberty and coercion," he writes, "were bound together from the earliest days of the republic." He then tries to explain how, over time, the small central government crushed states' rights and evolved into a big Leviathan.
The book contains much of interest to constitutional scholars, but also to students of economics and political philosophy.
Leviathan in D.C. / The Bill of Rights constrained the federal government in how it could treat individuals. But, over James Madison's objection, its constraints were not extended to the states, an interpretation confirmed by the U.S. Supreme Court in 1833. Instead, the states held the "police power" they inherited from British law:
Under England's public police doctrine, the king had not only the right but also the obligation to bring order and welfare into his kingdom.... Like the authority that inhered in the eighteenth-century English king, the powers held by nineteenth-century American states were broad, capacious, and vaguely defined.
This police power "authorized state governments to act against anybody or any institution thought to offend public order or comity, as determined by democratic majorities," and "allowed state governments to engage in extensive regulation of the economy, society, and morality." Thomas Jefferson thought that a civic democracy of yeomen farmers would guarantee liberty at the state level; it did not work out that way.
With all their power, the states were able not only to enforce slavery in the South but also, everywhere, to control education, social welfare, family life and morality, to minutely regulate businesses, to limit free speech, to favor certain religions, and to negate due process. In 1853, for example, the overseer of the poor in Maine indefinitely committed to a work house a mother and her daughter deemed to be paupers and "living a dissolute, vagrant life"; the accused had no trial and no opportunity to defend themselves.
Widespread patronage and corruption developed, and would soon engulf the federal government too.
Much of the states' powers survived the Civil War. In the South, the states enforced apartheid. The prohibition of interracial marriages subsisted until the 1960s. Restrictions on free speech illustrated the continuing power of the miniature Leviathans. At the beginning of the 20th century, for example, a Denver editor was charged in state court with criticizing the Colorado judiciary, and his condemnation was maintained by the Supreme Court. Not until 1931 did the Supreme Court strike down a state law infringing freedom of speech.
Fortunately, state governments were not very efficient. And the exit option always existed. Some states were better than others, although Gerstle suggests only marginally.
Federal Leviathan / Contrary to the states, the central government was largely a "liberal institution in the classical sense of that term," but it had become "democratically convulsive" by the time of Jacksonian democracy. It then took more than a century for the central government to impose liberalism on the states, but the meaning of liberalism changed in the process: from defending negative liberty (the freedom to be left alone) it came to mean the promotion of positive liberty (the right to force others to serve oneself). A large federal Leviathan appropriated the states' police power and replaced the miniature Leviathans.
One step in this substitution was the ratification in 1868 of the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ... [or] deprive any person of life, liberty, or property, without due process of law." The amendment came to be interpreted as incorporating the federal Bill of Rights in the states' internal affairs.
The federal government gradually broke its constitutionally imposed limits in a long and convoluted process that culminated in the New Deal and, later, the "Great Society." The process largely consisted in extending the original meaning of the federal powers enumerated in the Constitution, such as regulating interstate commerce or supervising the mail. Talk about slippery slopes! The history of this usurpation, of "the creativity of a constrained central state in circumventing the formal limits on its power" is a fascinating aspect of Liberty and Coercion.
Brilliant improvisation I Usurpation? Gerstle probably does not think that way, or at least this is not how his publisher encourages readers to think about the book. According to the Princeton University Press, "In Liberty and Coercion, Gerstle shows how national political leaders improvised brilliantly to stretch the power of the federal government beyond where it was meant to go." Perhaps the "brilliantly" is just marketing talk, or perhaps it reveals something that is not so obvious in the book.
Gerstle certainly shows sympathy for the "social" Leviathan, but he is more critical of another process by which the federal government became Leviathan: through permanent wars and their national security requirements. This thread runs through the Indian wars, the Civil War, the two world wars, the Cold War, and today's boundless War on Terror. It seems that the Constitution is suspended in times of war. World War I brought the --Sedition Act (among other liberticidal legislation) under which Eugene Debs, leader of the Socialist Party, was condemned to 10 years in jail for merely criticizing the government's decision to go to war. With the approval of the authorities, the American Protective Association organized raids to search for draft dodgers.
The 1940 Alien Registration Act (also known as the Smith Act) was soon used to prosecute and convict American citizens charged with the crime of being Marxist-Leninists. The economic controls established during World War II greatly emboldened the dirigiste central state.
One striking point of Liberty and Coercion is how the Cold War fueled the American Leviathan. It justified the growth of the FBI and the federal surveillance apparatus. Dissidents or even non-dissidents deemed communists were harassed. The Cold War motivated the McCarthyist witch-hunt. It also justified the federal government's maintaining the large income tax base that had been imposed during World War II, including the system of tax deduction at source by employers, thus enabling the growing warfare and welfare state.
The current War on Terror is another attack upon our liberties. The U.S. response to the September 11,2001 terrorist attacks, Gerstle writes, "entailed keeping the nation on a war footing indefinitely."
Leviathan's dangers/There are a few problems with the book, which revolve around Gerstle's presumption in favor of positive liberty and his opinion that the federal Leviathan was necessary after all.
He recognizes that the distinction between negative and positive liberty marks the difference between classical liberalism and today's American "liberalism." But he does not recognize that the federal government did not need to grow into a Leviathan to impose the Bill of Rights on the states. The protection of negative liberty would not have required the monstrous federal machine that emerged after the 19th century. Fighting the Soviet "evil empire" did not require--indeed, was inconsistent with--metamorphosing American society into an evil empire with a human face. Preventing public discrimination (in southern public schools, for example)--a very laudable goal--would not have required all the power that was necessary to ban all sorts of private discrimination (in commerce, employment, etc.).
Gerstle does not see clearly what separates the public and the private. Another example: he does not seem to understand that when the state co-opts private associations or corporations to do its bidding, any resulting blame for their actions should go to the state, not to "privatization." By itself, the American way of producing public goods through voluntary associations is not to be blamed but to be lauded.
When the federal state used private cronies to build the intercontinental railroad, the problem was with government action and corruptibility, not the private interests that took the bait. The same distinction can be applied to the federal government using temperance leagues as spies and the American Protective League as an unofficial police force. Another example of the corruption of the private by the public occurred when the U.S. Department of Agriculture sponsored the American Farm Bureau Federation, which in turn, starting in the 1920s, lobbied government on behalf of farmers.
Everything is ultimately private--that is, done by individuals pursuing their own interests, outside or inside political institutions. The problem is not in the private interests, but in the frequent incapacity of social and political institutions to channel those interests toward the general welfare. When there is much to receive from government, private interests are diverted to government corruption, illegal or legal. Gerstle ignores this approach, brought to light by public choice theory during the second half of the 20th century.
He repeatedly argues that the lack of public financing for election campaigns has led to special--read "corporate"--interests buying elections and to the rise of the parties' political machines. (His history of these machines is fascinating.) But he does not mention that public financing would not solve the problem if not accompanied by limits on private financing--that is, by restrictions on free speech. And again, he does not seem to understand that so much is invested in elections because the rewards are so high and Leviathan is so rich and powerful.
Economics is not Gerstle's strong point. He speaks of "chaotic and often-ruinous capitalism." He sees employees as impotent and employers as omnipotent, as if the latter did not need the former as much as the reverse. It seems obvious to him that free markets lead to worker "exploitation" and "power differentials between capital and labor," that government is necessary to cure recessions, that "the affluence that would have come to characterize broad sections of the working class by the 1950s ... would not have taken place without central state intervention," that "the startling increases in federal government's regulatory reach brought order and prosperity to ... agriculture and labor," and that the "freeing" (he puts the term in quotation marks, perhaps not for the right reason) of finance led to the 2008-2009 recession, without even once mentioning Leviathan's housing policy. He seems to believe that the "public interest" is an easily defined and obvious goal in "managing the capitalist economy." Ac the very least, he could have mentioned that all these statements are economically very debatable. And he makes other economic blunders.
He does interpret some economic facts correctly. He observes that the New Deal's agricultural policies hurt landless agricultural workers and tenants, coming close to public choice analysis when he writes, "The case of farmers underscores how much the pursuit of government privileges by advantaged or relatively advantaged economic groups fueled the growth of government power in America, even during the headiest day of the New Deal." But he does not grasp all the implications of those observations.
Gerstle does not understand that a loving Leviathan is as dangerous as a warring one. It is true, for example, that the militarization of the police has benefited from military surpluses, but the immediate cause has been the very domestic war on drugs, which has been a war waged on U.S. consumers by a paternalistic Leviathan.
Other problems / It is difficult to disentangle Gerstle's values from his muddled economics. He is a careful scholar, but he sometimes betrays his politics. Although "reproduction rights" are mentioned, nowhere does Liberty and Coercion mention the Second Amendment, even when summarizing the rights guaranteed by the Bill of Rights. He is blind to the elaborated and detailed surveillance that has hit financial transactions since the 1970s.
He does not like laissez-faire, except in speech, sexual, and privacy matters. Perhaps he doesn't understand how liberty in personal matters and laissez-faire in "economic" matters are intimately related. Yet he himself gives a good example of this interrelation when he notes that, after the Civil War, state laws obliged railroad companies to provide segregated cars, implying that the companies might have otherwise responded to considerations of demand and cost. Protecting "social" liberties requires guaranteeing economic freedom.
Perhaps because he honestly struggles with the consequences of a good Leviathan, Gerstle is not always consistent. "Today," he writes, "the split between Democrats and Republicans about the proper scope of government constitutes a nearly unbridgeable divide." At other places he suggests more correctly that the two parties have come to embrace Leviathan. He seems to admit that the "conservative revolt" of the late 1970s and 1980s did not change much.
He rightly criticizes conservatives, who feed Leviathan with their own pet preferences for law-and-order, war-mongering, and surveillance. Strangely, however, he also states that "they are the truest of eighteenth-century liberals."
Libertarians, Gerstle admits, are more consistent: they are "no more favorably disposed to the power of the states than to that of the central government." This is true. They also view with high suspicion, if not outward contempt, the notion of "sovereignty" at whatever level. Federalism is a means--an important means but still only a means--of protecting liberty. Liberty--individual liberty in the classical liberal sense--is the ultimate value to defend in all areas of social life.
The author of Liberty and Coercion perceptively detects a paradox in today's American politics--a paradox also observable in other democratic countries. Americans want the government to get off their backs and, at the same time, to provide them with more services and privileges. In Gerstle's perspective, the solution to the paradox would be for citizens to come to terms with the necessary burden of Leviathan and enjoy life with the positive liberty that government gives them. But this is an illusion. Even without waging foreign wars, even when smiling, Leviathan is dangerous.
In his book The State (Liberty Fund, 1985, 1998), Anthony de Jasay developed a model of government that is more realistic than Gerstle's good Leviathan. The more the state intervenes, de Jasay argues, the more individuals will feel its burden, and the more they will ask for compensating privileges. If government subsidizes corporations, why shouldn't the laborers ask the same benevolent institution to protect their jobs and salaries? If race and religion are protected against private discrimination, why shouldn't injunctions be imposed for the benefit of other groups? Political parties (even if they were, in an ideal Gerstlian world, financed by all taxpayers) will compete to answer these many and conflicting demands. As Leviathan grows, everyone wants more compensating privileges and everyone is less and less happy with government's performance.
The result, de Jasay suggests, will be the Plantation State, where the state owns everything and everyone, becomes the source of all happiness, and totally controls its unhappy and ungrateful subjects. A good Leviathan does not exist.
On this sort of larger issue, Liberty and Coercion is silent. In a sense, this is understandable because it is a history book--and a very good history book at that. But Gerstle does more than history. He proposes or suggests justifications for liberty and coercion in America. And he tends to assume d la Hobbes that Leviathan is necessary to protect liberty. His Leviathan with a human face is, however, neither feasible nor desirable.
At this juncture, he may point to a sentence in his last chapter: "America still has its Leviathan, but in domestic matters, it is an institution besieged." How is that? As Gerstle himself writes in the book's conclusion, "The federal government grew from a small institution with limited powers into a Leviathan with influence across numerous areas of American life." And "numerous areas" must be an understatement.
Any lover of individual liberty must be happy that some negative liberties--free speech, interracial marriage, sexual preferences, and some procedural rights--have gradually become better protected over the past century or so. I would add that, in the last decade or so, the right to keep and bear arms has also been better recognized and protected, although some state governments still resist.
Leviathan that gives can also take away. If Gerstle were more conscious of the danger of Leviathan, he would agree that the only way to preserve both federalism and states' rights on the one hand, and the promises of liberty in the Bill of Right on the other, is to return to a classical-liberal or libertarian conception of liberty.
PIERRE LEMIEUX is an economist affiliated with the Department of Management Sciences of the Universite du Quebec en Outaouais. His latest book is Who Needs Jobs? Spreading Poverty or Increasing Welfare (Palgrave Macmillan, 2014).
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|Title Annotation:||Liberty and Coercion: The Paradox of American Government|
|Article Type:||Book review|
|Date:||Mar 22, 2016|
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