Some historical figures maintain their reputation, whatever our contemporary concerns. George Washington has remained one of our most admired Presidents for the entire history of the Republic. James Buchanan settled in the doghouse as soon as he left office and has stayed there ever since. But the assessments of most Presidents and public figures lying between these poles of excellence and of failure wax and wane depending on our current preoccupations. Biography can be the most presentist of historical disciplines.
No subject exemplifies these vicissitudes more than Ulysses S. Grant. When the nation wanted to emphasize the reconciliation of the South and North and forgot about civil rights for African Americans, Grant was derided both as a general and as President. He was said to have defeated Robert E. Lee only because of his greater willingness to sacrifice the lives of ordinary soldiers and the greater industrial might of the North. His Presidency was treated as a travesty almost as bad as Buchanan’s—that of a man in office over his head with a high tolerance of scandalous behavior of subordinates.
But today we see more of American history as a struggle for civil rights and thus Ron Chernow’s magisterial biography attempts to raise Grant to the pantheon of American generals and to a more than respectable position among American Presidents. Chernow is more successful in promoting a reassessment of his career as a warrior than as a statesman.
Richard Thaler deserves the Nobel Memorial Prize in economics. But media treatments of Thaler’s work, and of behavioral economics more generally, suggest that it provides a much-deserved comeuppance to conventional microeconomics. Well . . . Not quite.
A market that rewards victims generates demand for offenses, so it is scarcely surprising that Nancy MacLean, author of an intellectual biography of James M. Buchanan, feels offended. This is the essence of her answer to charges that she distorted evidence, made scurrilous yet unsupported accusations (as I pointed out in my review for Law and Liberty), and generally wove a conspiracy theory under the banner of scholarship.
It is a dicey business for scholars housed at academic institutions to embark on projects to influence public opinion and practical politics. That is one of the relentless premises of Nancy MacLean’s Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, a scurrilous attack on James M. Buchanan that is written as a screed, published with a popular press, and suffused on every page with an obvious intent to influence public opinion and practical politics.
MacLean, the William H. Chafe Professor of History and Public Policy at Duke University, might better have entitled the work, which is pervaded with innuendo and guilt by association, “Six Degrees of Jim Buchanan.” His constitutional focus on veto points is similar to John C. Calhoun’s; Buchanan is therefore tarred by association with Calhoun’s racial views. Buchanan came to prominence in Virginia when the state was under the thumb of the segregationist U.S. Senator Harry Byrd. Byrd’s beliefs on voter suppression are unfurled in tandem with Buchanan’s story, inviting the reader to infer a phantom link between them. Likewise the implied association of Buchanan with the full range of the Virginia journalist James J. Kilpatrick’s views.
Along with Michael Rappaport, I participated in Michael McConnell’s “Big Fix” conference, held at Stanford Law School this past week. “Should We Amend the Constitution?” was the subtitle of the fun event. You can talk me into that, provided law profs don’t get to vote. A dismaying number of amendment proposals aimed to Europeanize the U.S. Constitution (for example, by importing the European and Canadian courts’ “proportionality” tests into our ConLaw, which I had thought could not get any worse). Others sought to make the republic yet more “democratic”—an endeavor that for n reasons, some ably stated by Brother Rappaport, merits firm resistance and, in the event of success, a bulk purchase of OxyContin.
Public choice theory, which applies to the realm of politics the rational-actor postulate of economists, rightly enjoys a high regard among advocates of liberty. From voting habits to inefficient, Kafkaesque bureaucracies, to the strength of special interest lobbies and rent-seeking behavior, public choice has shined a bright light on the need to affirm limited government and political freedom. It is politics, to use James Buchanan’s phrase, “without romance.”
When it comes to voting by citizens in a democracy, there are four essential questions, as I see it, in marrying up the “should” and the “is.”
A while ago, I was driving back to Indiana from the place of my birth and America’s most dysfunctional city, Chicago. As thoughts of Greek-style pensions for public employees, exorbitant property taxes, and sky high murder rates were passing through my consciousness, my car began emitting a strange noise on the expressway. It grew louder, and my stomach sank. It was a flat. The car wobbled onto a nearby exit ramp, and I slowed to the shoulder cursing my lousy luck.
Thankfully I had just renewed my Triple-A membership (after debating to myself whether or not the fee was worth it), so my luck held in the end. The incident led me to ponder the fact that it would not have occurred to me in my distress to try calling a real estate developer, a neurosurgeon, or a former CEO for help. That is to say, anyone lacking a background in auto repair.
In my last post, I looked at the influence of public choice on originalism, which I discuss in a recent paper. Here I suggest that originalism also faces challenges from public choice that it needs to address. Here are four of them:
How is Originalism Self-sustaining? Public choice originalism shows why one needs to enforce constitutional provisions according to their original meaning to prevent legislative or even popular majorities from undermining the supermajoritarian framework. But why will judges follow originalism, when the supermajoritarian framework of the Constitution makes it very difficult for people to overrule their decisions through a constitutional amendment? Recent work by rational choice political scientists has focused on the general question of how a constitution can be self-enforcing.
One possible answer is that justices will be disciplined by a culture of originalism. As Richard Posner notes (link no longer available), an important part of judicial satisfaction comes from feeling that they have played the game by the rules. If the rules are understood to be originalist, that understanding provides substantial discipline. One observation about this solution is that it makes the success of originalism ultimately dependent on cultural capital–in this case that of the legal culture. That fact is not necessarily surprising. Many other important social institutions, like the market economy itself, have been thought dependent on culture.