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WEAVER ON SOCIETY, PAST AND PRESENT:

I.

THE SOUTHERN TRADITION

MANY YEARS AGO the historian Francis Parkman wrote a passage in one of his narratives which impresses me as full of wisdom and prophecy. After a brilliant characterization of the colonies as they existed on the eve of the Revolution, he said, “The essential antagonism of Virginia and New England was afterwards to become, and to remain, an element of the first influence in American history. Each might have learned much from the other, but neither did so til, at last, the strife of their contending principles shook the continent.” If we take Virginia as representing the South and New England as representing the North, as I think we may fairly do, we can say that this situation continues in some degree down to the present. Each section had much to learn from the other: neither was willing to learn anything and that failure produced 100 years ago the greatest tragedy in American history. Today it appears in political friction, social resentment, and misunderstanding of motives despite encouraging signs of growing amity.

This amity will clearly depend upon an appreciation, which Parkman found so sadly lacking, of what each has to offer. You certainly never get anywhere in mutual understanding among peoples or nations by assuming in advance that the other fellow has nothing whatever to offer. We would never think of assuming that in the case of the English or the French or the Chinese, or even the American Indians. But I only report what I have observed if I say that there appears a tendency on the part of a good many Americans to assume that the American South has nothing to offer—nothing worth anybody’s considering. That is a proposition in itself, and it needs to be examined in the light of evidence.

My principal theme, therefore, will be those things the South believes it has contributed to this great, rich, and diversified nation and which it feels have some right to survive and to exert their proportionate influence upon our life.

Before I can do this, however, I shall have to say something about what the South is—what makes it a determinate thing, a political, cultural, and social entity, which by the settlement of 1865 is going to be part of the union indefinitely.

IT IS VIRTUALLY A TRUISM in American political thinking that the South has been a kind of nation within a nation. You have no doubt learned that “nation” is a hard thing to define in any ultimate sense. But taking the term in the practical, working sense usually employed, we can say that there are a number of evidences of Southern nationalism. The political unity of the section often referred to by the phrase “the solid South” is a fact of considerable notoriety. Its ideological unity, or its community of belief about certain ideas, certain institutions, and certain figures of history is only a little behind the political unity. And the unity of its culture, expressed in its way of life, it speech, its cookery, and its manners, has maintained itself surprisingly in the face of a variety of conditions on the inside and considerable pressure from the outside. I am inclined to think that Southern culture shows a degree of centripetalism, or orientation toward a center, which is characteristic of all high cultures.

In dealing with the factors which have produced this unity of thought and feeling in the South, it seems best to take them in the order of their historical emergence.

The first step toward understanding the peculiarities of the Southern mind and temper is to recognize that the South, as compared with the North, has a European culture—not European in the mature or highly developed sense, but more European than that which grew up north of the Potomac and Ohio rivers, in several respects, even more European than that of New England.

The South never showed the same interest in seceding from European culture that the North and West showed. It played an important and valiant part in the Revolution, but this was a political separation. After the Revolution it settled down quite comfortably with its institutions, modelled on eighteenth century England. A few stirrings of change, I believe, there were in Virginia, but not enough to alter the patterns of a landowning aristocracy. While Emerson in New England was declaiming, “We have listened too long to the courtly muses of Europe,” the South was contentedly reading Sir Walter Scott, not, as Russell Kirk has shrewdly pointed out in his The Conservative Mind, just because it liked romance but because in Sir Walter Scott it found the social ideals of Edmund Burke. And Burke is one of the great prophets of conservative society. The European complexion of Southern culture showed itself also in other ways. It showed itself in the preservation of a class society—one might more truly say in the creation of a class society—for very few who settled in the South had any real distinction of family. It appeared in the form of considerable ceremonial in dress and manners. It was manifested in the code duello, with all its melancholy consequences. It appeared in the tendency of Southern families who could afford it to send their sons to Europe for their education—even Edgar Allen Poe received some of his schooling in England. And it appeared in a consequential way in their habit of getting their silver, their china, their fine furniture and the other things that ornamented Southern mansions from Europe in exchange for their tobacco, cotton and indigo.

Whether the South was right or wrong in preserving so much of the European pattern is obviously a question of vast implications which we cannot go into here. But I think it can be set down as one fact in the growing breach between South and North. The South retained an outlook which was characteristically European while the North was developing in a direction away from this—was becoming more American, you might say.

There are evidences of this surviving into the present. A few decades ago when Southern Rhodes scholars first began going to England, some of them were heard to remark that the society they found over there was much like the society they had left behind. England hardly seemed to them a foreign country. This led to attempts by some of them to reassert the close identity of Southern and Western European culture, to which I expect to refer again later.

THE SECOND GREAT FACTOR in the molding of Southern unity and self-consciousness was the Civil War. Southerners are sometimes accused of knowing too much about the Civil War, of talking too much about it, of being unwilling to forget it. But there are several reasons why this rent looms very large in the Southerner’s memory, and why he has little reluctance in referring to this war, although it was a contest in which he was defeated.

To begin with, Southerners, or the great majority of them, always have believed that their part in this war was an honorable one. Far from regarding themselves as rebels, they felt that they were loyal to the original government, that is to say, they believed that they were fighting to defend the government as it was laid down at Philadelphia in 1787 and as recognized by various state ordinances of ratification This was a government of restricted power, commissioned to do certain things which the states could not do for themselves, but strictly defined as to its authority. The theory of states’ rights was a kind of political distributism which opposed the idea of a powerful centralized government. The Southern theory then as now favored the maximum amount of self-determination by the states and it included, as a kind of final guarantee that states’ rights would be respected, the principle of state sovereignty, with its implied right of secession.

In the Southern view, it was the North that was rebelling against this idea which had been accepted by the members of the Constitutional Convention in 1787. Or to put it in another way, the North was staging a revolution, the purpose of which was to do away with this older concept of the American government. The South refused to go along with the revolution, invoked the legal safeguards which it believed to exist, and then prepared to defend itself by force. You may recall that the late historian Charles A. Beard found enough substance in this to call the Civil War “the Second American Revolution” in his Rise of American Civilization. Thus in this second American Revolution the Northerners were in the role of patriots, the Southerners in the role of English, if we keep our analogy with the Revolutionary War.

In all great crises of history where you have a legal principle challenged by a moral right, you find people flocking to both standards. The one side says it believes in the duty of upholding the law. The other side says it believes in the imperative necessity of change, even at the expense of revolution. Though the Civil War may not look quite so simple to us now, this is the way many people saw it. A number of years ago, Gerald Johnson wrote an ingenious little book on Southern secession, in which he referred to it as the struggle between the law and the prophets. The South had the law and the North had the prophets, in the form of the abolitionists and also of the advocators, both heard and unheard, of a strong central government, unimpeded by theories of states’ rights.

The legal aspects of an issue which has been so long decided can now have only academic interest. But if any of you wish to see a statement of the South’s legal position on state sovereignty and secession, the best source is a little book by a man named Bledsoe—A. T. Bledsoe—Is Davis A Traitor? Bledsoe was a Kentuckian, and he brought to the task of writing this defense an interesting set of qualifications. He was a lawyer, a professor of mathematics, and for ten years he had been a colleague of Lincoln at the bar of Springfield. Also—and probably this is pertinent to mention, since we are talking here about a metaphysical debate—he had written a book-length refutation of Jonathan Edwards’ Freedom of the Will. I do not know whether this is true or not, but it has been said that the appearance of Is Davis A Traitor? in 1866, was one of the things that made the North decide not to bring Davis to trial. At any rate, the failure to bring Davis to trial was naturally taken by the South as a sign that the North’s legal case was too weak to be risked in court.

These are the chief things causing Southerners to feel that, whatever the claims of moral right and wrong, they had the law on their side.

Now we come to the fact of the Civil War itself. It was impossible that a struggle as long and bitter as this should not leave deep scars. Americans, particularly those of the present generation, are prone to forget the magnitude of this civil conflict. The United States lost more men from battle wounds and disease in the Civil War than in any other war of its history, including the Second World War. The battle front stretched from Pennsylvania to New Mexico, and included also the seven seas. A good many of the wars of history have been decided by two or three major battles. In our Civil War at least eighteen battles must be accounted major by reason of the number and resources involved. The minor battles run into scores, and the total number of engagements—somebody once counted them up—is as I recall, something more than 2200. Of this eighteen major battles you might call five or six “critical” in a sense that, with a more decisive result, they might have ended the war right there or have turned it in favor of the side which eventually lost. I would include in my list of critical battles Shiloh, the Seven Days, Sharpsburg, Gettysburg, and Chickamauga. So you can see it was really a knock-down drag-out fight.

THERE IS A FURTHER FACT to be noticed in discussing the effect of this war. Nearly the whole of it was fought on Southern soil. With the exception of the Gettysburg campaign, and John Hunt Morgan’s raids into Indiana and Ohio, and the small but famous St. Albans raid in Vermont—a group of Confederates in disguise came down from Canada, shot up the little town of St. Albans in Vermont, took the bank deposits and got back across the border—the North was physically untouched. There is a great difference between reading about a war your boys are fighting 500 miles away, and having the war in your midst, with homes being burned, farms being stripped, and your institutions being pulled to pieces. I’ll bet any Japanese or German today will testify to this. The war was much more a reality to the people of the South than to those of the North, and it has remained such down to the present.

A natural question to come up at this point is, why should anybody care to remember or write histories about a war which left his country a hollow shell? In order to explain this, I shall have to tell you something else from the Southern credo, something that goes along with this faith in the legal case. It has been a prime factor in preserving Southern morale and in maintaining that united front of the South which I am afraid has been such a vexation to the rest of the country. And the only way I can really tell this is by an anecdote, even though I have to explain the anecdote.

The story goes that a ragged Confederate soldier was trudging his way home from Appomattox. As he was passing through some town, somebody called out to him by way of taunting. “What’ll you do if the Yankees get after you?” And his answer was, “They aren’t going to bother me. If they do, I’ll just whip ’em again.” The point of the anecdote, which may need to be explained, is that the answer was at least half serious. It was a settled article of belief with the Southern soldiers—echoed in numberless Confederate reunions—that although they had lost the war, they had won the fighting—that individually they had proved themselves the equal, if not the superior of their adversary and that the contest had finally been decided by numbers. There is no point in going into the merits of the argument here. But it is easy to see how, right or wrong, it had a great effect in preserving Southern pride, and even in maintaining a spirit of defiance which to this day characterizes a good bit of Southern policy.

It also helps to explain why the South has written so voluminously about the war, and why in libraries today, for example, you can find a biography of practically every Confederate General of any eminence whatever, and sometimes three or four. A quick check of the card files in Harper library reveals ten full-length biographies of William Tecumseh Sherman, but fourteen of Stonewall Jackson, plus biographies of Stoneman, Pleasanton, Grierson, Bedford, Forrest, Stuart, and a definitive biography of Lee by D. S. Freeman; but no definitive biography of Grant. The remark has been made that in the Civil War the North reaped the victory and the South the glory. If you consult the literature of the subject very extensively you find a certain amount of truth in that.

Evidently there was enough substance in the legend to nourish the martial tradition of the South, and to support institutions like VMI, the Citadel and the A & M College of Texas, which do not have counterparts in other sections of the country.

This brings the story down to Reconstruction; which somebody has described as “a chamber of horrors into which no good American would care to look.” If that is an exaggeration, it still seems fair to say that this was the most dismal period of our history—a bitter, thirty-year sectional feud in which one side was trying to impose its will on the other, and the other was resisting that imposition with every device of policy, stratagem and chicanery that could be found. We must realize that no people willingly accepts the idea of being reconstructed in the image of another. That is, in fact, the ultimate in humiliation, the suggestion that you must give up your mind, your inherited beliefs and you way of life in favor of that of your invaders. There was a critical period when, if things had been managed a little worse, the South might have turned into a Poland or an Ireland, which is to say a hopelessly alienated and embittered province, willing to carry on a struggle for decades or even centuries to achieve a final self-determination. That was largely forestalled by the wisdom of a few Northern leaders. The work of Lincoln toward reconciliation is well known but that of Grant, at Appomattox and also later, I think has never been sufficiently appreciated. And the act of Lee in calling for reunion once the verdict of battle has been given was of course of very great influence.

IT WAS AN immeasurable calamity that Lincoln was not allowed to live and carry out his words in the lofty and magnanimous spirit which his speeches reflect. He was himself a product of the two sections, a Kentuckian by birth, an Illinoisian by adoption. He understood what had gone into the making of both. As it was, things were done which produced only rancor, and made it difficult for either side to believe in the good faith of the other. It is unfortunate but it is true that the Negro was forced to pay a large part of the bill for the follies of Reconstruction.

By all civilized standards the period was dreadful enough. George Fordt Milton has called his history covering those years The Age of Hate. Claude Bowers has called this The Tragic Era. If you desire a detailed account of what the South experienced in these years probably the best source to go to is Why the Solid South, Reconstruction and Its Results, (ed. Hilary Herbert) by a group of Southern leaders, including a number of governors of states. This is of course, a Southern view, but it tells you from the inside something about the financial, political, and social chaos that prevailed in those years.

Unquestionably Reconstruction did something to deepen the self-consciousness of the Southern people, to make them feel less American rather than more so. They became the first Americans ever to be subject to invasion, conquest, and military dictation. In estimating the Southern mind it is most important to realize that no other section of America has been through this kind of experience. In fact it is not supposed to be part of the American story. The American presents himself to the world as ever progressing, ever victorious, and irresistible. The American of the South cannot do this. He has tasted what no good American is supposed ever to have tasted, namely the cup of defeat. Of course, that experience is known to practically all the peoples of Europe and of Asia. This circumstance has the effect of making the mentality of the Southerner again a foreign mentality—or a mentality which he shares in respect to this experience with most of the peoples of the world but does not share with the victorious American of the North and West. He is an outsider in his own country. I have often felt that the cynicism and Old-World pessimism which the rest of the country sometimes complains of in the South stems chiefly from this cause. The Southerner is like a person who has lost his innocence in the midst of persons who have not. William A. Percy, going from a plantation on the Mississippi Delta to the Harvard Law School found that Northern boys were “mentally more disciplined” but “morally more innocent” than Southern boys. His presence is somehow anomalous; he didn’t belong.

It is sometimes said, with reference to these facts, that the South is the only section of the nation which knows the meaning of tragedy. I am inclined to accept that observation as true and to feel that important things can be deduced from it. Perhaps there is nothing in the world as truly educative as tragedy. Tragedy is a kind of ultimate. When you have known it, you’ve known the worst, and probably also you have had a glimpse of the mystery of things. And if this is so, we may infer that there is nothing which educates or matures a man or a people in the way that the experience of tragedy does. Its lessons, though usually indescribable, are poignant and long remembered. A year or so ago I had the temerity to suggest in an article that although the South might not be the best educated section in the United States, it is the most educated—meaning that it has an education in tragedy with which other educations are not to be compared, if you are talking about realities. In this sense, a one-gallon farmer from Georgia, sitting on a rail fence with a straw in his mouth and commenting shrewdly on the ways of God and man—a figure I adopt from John Crowe Ransom—is more educated than say a salesman in Detroit, who has never seen any reason to believe that progress is not self-moving, necessary and eternal. It would seem the very perverseness of human nature for one to be proud of this kind of education. But I do believe it is a factor in the peculiar pride of the Southerner. He has been through it; he knows; the others are still living in their fool’s paradise of thinking they can never be defeated. All in all, it has proved difficult to sell the South on the idea that it is ignorant.

In a speech made around the turn of the century, Charles Aycock of North Carolina met the charge of ignorance in a way that is characteristic in its defiance. Speaking on “The Genius of North Carolina Interpreted,” he said,

Illiterate we have been, but ignorant never. Books we have not known, but men we have learned, and God we have sought to find out.

[North Carolina has] nowhere within her borders a man known out of his township ignorant enough to join with the fool in saying “There is not God.”

You will note here the distinction made between literacy and knowledge—a distinction which seems to be coming back into vogue. You will observe also the preference of knowledge of men over knowledge of books—this is where our Southern politicians get their wiliness. And you will note finally the strong emphasis upon religiosity.

(It has also been claimed that this tragic awareness perhaps together with the religiosity is responsible for the great literary productiveness of the South today. That is a most interesting thesis to examine, but it is a subject for a different lecture.)

For a preliminary, this has been rather long, but I have felt it essential to present the South as a concrete historical reality. One of the things that has prevented a better understanding between North and South, in my firm belief, is that to the North the South has never seemed quite real. It has seemed like something out of fiction, or out of that department of fiction called romance. So many of its features are violent, picturesque, extravagant. With its survivals of the medieval synthesis, its manners that recall bygone eras, its stark social cleavages, its lost cause, its duels, its mountain flask, its romantic and sentimental songs, it appears more like a realm of fable than a geographical quarter of these United States. Expressed in the refrain of a popular song, “Is It True What They Say About Dixie,” the thought seems to be that the South is a kind of never never land from which the nation draws most of its romance and sentiment, but to which, for this very reason, you do not assign the same weight in the equation as you do to the other sections. Well the sentiment and the romance are there, in considerable measure, but there is a substratum of reality too. People are born and die in the same way as elsewhere: if you prick them, they bleed. The vast majority of them have to work for a living and in a hot climate too. The South also votes in national elections. For this reason, especially, it is important that the nation should see it as a reality and not a fiction, understand it better, both with respect to its likenesses and its differences. (And I certainly would assent to the proposition that the South ought to understand the nation better.) In the foregoing I have tried to present to you something of the peculiar history and formation of the South. In the time remaining I shall try to explain some of the peculiar—in the sense of being fairly distinct in this country—attributes of mind and outlook. It is scarcely necessary to add that these have many connections with that history.

I shall begin by saying something about the attitude toward nature. This is a matter so basic to one’s outlook or philosophy of life that we often tend to overlook it. Yet if we do overlook it, we find there are many things coming later which we cannot straighten out.

Here the attitudes of Southerners and Northerners, taken in their most representative form, differ in an important respect. The Southerner tends to look upon nature as something which is given and something which is finally inscrutable. This is equivalent to saying that he looks upon it as the creation of a Creator. There follows from this attitude an important deduction, which is that man has a duty of veneration toward nature and the natural. Nature is not something to be fought, conquered and changed according to any human whims. To some extent, of course, it has to be used. But what man should seek in regard to nature is not a complete dominion but a modus vivendi—that is, a manner of living together, a coming to terms with something that was here before our time and will be here after it. The important corollary of this doctrine, it seems to me, is that man is not the lord of creation, with an omnipotent will, but a part of creation, with limitations, who ought to observe a decent humility in the face of the inscrutable.

THE NORTHERN ATTITUDE, if I interpret it correctly, goes much further toward making man the center of significance and the master of nature. Nature is frequently spoken of as something to be overcome. And man’s well-being is often equated with how extensively he is able to change nature. Nature is sometimes thought of as an impediment to be got out of the way. This attitude has increasingly characterized the thinking of the Western world since the Enlightenment, and here again, some people will say that the South is behind the times, or even that it here is an element of the superstitious in this regard for nature in its originally given form. But however you account for the attitude, you will have to agree that it can have an important bearing upon one’s theory of life and conduct. And nowhere is its influence more decisive than in the corollary attitude one takes toward “Progress.”

One of the most widely received generalizations in this country is that the South is the “unprogressive section.” If it is understood in the terms in which it is made, the charge is true. What is not generally understood, however, is that this failure to keep up with the march of progress is not wholly a matter of comparative poverty, comparative illiteracy, and a hot climate which discourages activity. Some of it is due to a philosophical opposition to Progress as it has been spelled out by industrial civilization. It is an opposition which stems from a different conception of man’s proper role in life.

This is the kind of thing one would expect to find in those out-of-the-way countries in Europe called “unspoiled,” but it is not the kind of thing one would expect to find in America. Therefore I feel I should tell you a little more about it. Back about 1930, at a time when this nation was passing through an extraordinary sequence of boom, bust, and fizzle there appeared a collection of essays bearing the title I’ll Take My Stand.1 The nature of this title, together with certain things contained, caused many people to view this as a reappearance of the old rebel yell. There were, however, certain differences. For one thing, the yell was this time issuing from academic halls, most of the contributors being affiliated in one way or another with Vanderbilt University. For another, the book did not concentrate upon past grievances, as I am afraid most Southern polemic has done, but rather upon present concerns. Its chief question was, where is industrialism going anyhow, and what are its gifts, once you look them in the mouth? This book has since become famous as “The Agrarian Manifesto.” As far as content goes, I think it can fairly be styled a critique of progress, as that word is used in the vocabulary of modern publicity and boosting.

Although the indictment was made with many historical and social applications, the center of it was philosophical; and the chief criticism was that progress propels man into an infinite development. Because it can never define its end, it is activity for the sake of activity, and it is making things so that you will be able to make more things. And regardless of how much of it you have, you are never any nearer your goal because there is no goal. It never sits down to contemplate, and ask, what is the good life? but rather assumes that material acquisition answers all questions. Language something like this was employed by John Crowe Ransom, one of the most eloquent of the spokesmen, in his chapter, “Reconstructed but Unregenerate.”

“Progress never defines its ultimate objective but thrusts its victims at once into an infinite series,” Mr. Ransom said. And he continued, “Our vast industrial machine, with its laboratory center of experimentation, and its far-flung organs of mass production, is like a Prussianized state which is organized strictly for war and can never consent to peace.”2 “Industrialism,” he declared, “is rightfully a menial, of almost miraculous cunning, but no intelligence; it needs to be strongly governed, or it will destroy the economy of the household. Only a community of tough conservative habit can master it.”3 The South, Mr. Ransom felt, was such a community, and he went on to praise it for its stability, its love of established things, its veneration of the past—for all of those qualities which are generally thought to make up Southern backwardness. Mr. Stark Young, the well-known novelist and theatrical critic, defended the ideal of aristocratic indulgence and aristocratic leadership. “We can put one thing in our pipes and smoke it,” he wrote, “there will never again be distinction in the South until—somewhat contrary to the doctrine of popular and profitable democracy—it is generally clear that no man worth anything is possessed by the people, or sees the world under a smear of the people’s wills and beliefs.”4 There are many other pungent passages which might be quoted, but these should be enough to show that it was a militant book. As you can see, its bias was anti-industrial, anti-scientific, anti-popular. It defended the values of a culture rooted in the soil. Just what the effect was, however, is hard to estimate. But no one conversant with Southern history and culture will deny that it expressed some feelings which survive pretty strongly into the present and which may be found any where from the mansions of the nouveau riche in Atlanta to the mountain cabins of East Tennessee and Kentucky.

ANOTHER CARDINAL POINT, touched on here and there in the volume, is the Southerner’s attachment to locality. The Southerner is a local person—to a degree unknown in other sections of the United States. You might say that he has lived by the principle that it is good for a man to have a local habitation and a name; it is still better when the two are coupled together. In olden days a good many Southerners tried to identify their names and their homes: thus we read in history of John Taylor of Caroline, of Charles Carroll of Carrollton; of Robert Carter of Nomini Hall; of the Careys of Careysbroke; of the Lees of Westmoreland County. With the near liquidation of the old land-owning aristocracy this kind of thing became too feudal and fancy to keep up. Nevertheless, something of it remains in a widespread way still; the Southerner always thinks of himself as being from somewhere, as belonging to some spot of earth. If he is of the lucky few, it may be to an estate or a plantation; if not that, to a county; and if not to a county at least to a state. He is a Virginian, or he is a Georgian in a sense that I have never encountered in the Middle West—though the Indiana Hoosiers may offer a fair approximation. Very often the mention of a name in an introduction will elicit the remark, “That is a Virginia name” or “That’s a South Carolina name,” whereupon there will occur an extensive genealogical discussion. Often this attachment to a locale will be accompanied by a minute geographical and historical knowledge of the region, a loving awareness of details, of the peculiar physiognomy of the place. Andrew Nelson Lytle once complained in an article that in the world since 1914, nobody has known who he was or where he was from. The South has certainly felt the pressure toward rootlessness and anonymity—which are sometimes named as among the chief causes of modern psychic disorders—but I believe it has resisted the pressure better than most parts of the United States and Europe. It still looks among a man’s credentials for where he is from, and not all places, even in the South, are equal. Before a Virginian, a North Carolinian is supposed to stand cap in hand. And faced with the hauteur of an old family of Charleston, South Carolina, even a Virginian may shuffle his feet and look uneasy.

THE PRIDE OF local attachment is a fact which has two sides; it is a vice and a virtue. It may lead to conceit, complacency, and ignorance of the world outside. It frequently does lead to an exaggerated estimate of the qualities and potentialities of the particular region or province. The nation as a whole is acquainted with it in the case of Texans, who have developed this Southern attribute in an extreme degree. I was teaching out in Texas about the time we were ending the Second World War. A jocular remark that was passed around with relish was: “I know we are going to win the war now. Texas is on our side.” It was a fair gibe at Texan conceit.

But on the other side, provincialism is a positive force, which we ought to think about a long while before we sacrifice too much to political abstractionism. In the last analysis, provincialism is your belief in yourself, in your neighborhood, in your reality. It is patriotism without belligerence. Convincing cases have been made to show that all great art is provincial in the sense of reflecting a place, a time, and a Zeitgeist. Quite a number of spokesmen have pleaded with the South not to give up her provincialism. Henry Watterson, a long-time editor of the Louisville Courier Journal, told an audience of Kentuckians, “The provincial spirit, which is dismissed from polite society in a half-sneering, half-condemnatory way is really one of the forces of human achievement. As a man loses his provincialism he loses, in part, his originality and, in this way, so much of his power as proceeds from his originality.” He spoke caustically of “a miserable cosmopolitan frivolity stealing over the strong simple realism of by-gone times.” He summed up by asking, “What is life to me if I gain the whole world and lose my province?”

Thirty years later Stark Young, writing in the agrarian manifesto to which I referred earlier, pursued the same theme. “Provincialism that is a mere ramification of some insistent egotism is only less nauseous than the same egotism in its purity . . . without any province to harp on. But provincialism proper is a fine trait. It is akin to a man’s interest in his own center, which is the most deeply rooted consideration that he has, the source of his direction, health and soul. . . . People who give up their own land too readily need careful weighing, exactly as do those who are so with their convictions.”5 What often looks like the Southerners’ unreasoning loyalty to the South as a place has in this way been given some reasoned defense. Even Solomon said that the eyes of a fool are in the ends of the earth. One gives up the part for the whole only to discover that without parts there is no whole. But I have said enough about the cultural ideal of regionalism. If you would be interested in a book which brings these thoughts together in a systematic treatment, see Donald Davidson’s The Attack on Leviathan.

Despite what I have said about this love for the particular, which is another name for love of the concrete, the Southern mind is not by habit analytical. In fact the Southern mind has little capacity for analysis and I think one could almost say that it is opposed on principle to analysis. There seems to exist a feeling that you do not get at the truth of a thing—or that you do not get at a truth worth having—by breaking the thing in pieces. This explains undoubtedly why the South has always done so poorly in business and technology, which demand analytical methods. The Southern mind is, on the other hand, synthetic and mythopoeic—it seeks out wholes, representations, symbols. Especially is it mythopoeic, or given to the creation of myths and stories. The American tall tale was a creation of the Southern frontier. And one cannot go into a mountain community in Eastern Kentucky or to a plantation in say, Alabama, and open his ears to the talk of the people without having borne in upon him an amazing wealth and variety of stories—dramatic, intense, sometimes grotesque. As a mine of material for the creative writer there is nothing to compare with it anywhere else in America. I have heard people ask where William Faulkner gets that stuff that goes into his novels—whether he dreams it in nightmares, and so on. No one who had spent any time in Mississippi with his ears open would have to ask that question. He would know to what extent incidents and stories of this kind enter into the imaginative life of Mississippians. This mythopoeic or poetic—in the Aristotelian sense—faculty is surely behind the present flowering of the Southern novel and short story. It has already given us an interesting body of fiction, and it may one day give us a great literature. The South is not so much sleeping as dreaming, and dreams sometimes beget creations!

FINALLY SOMETHING MUST be said about the South’s famous conservatism—famous or infamous, depending upon your point of view. It is certainly a significant fact, but it has not gone wholly uncriticized at home. Walter Hines Page, growing up as a young man in North Carolina, spoke bitterly of what he called “an unyielding stability of opinion.” Having failed in his effort to do anything with it, he declared that “the only successful rebellion was an immediate departure.” He then fled North, to become editor of The Atlantic Monthly and eventually our ambassador to Britain during the Wilson Administration. Ellen Glasgow satirized it in her urbane novels of Virginia life. Thomas Wolfe took a few hefty swings at it in his description of old Catawba. And there have been others who have complained of a stifling uniformity of thought on many subjects.

With some of these specific protests I would gladly agree, yet there is perhaps another light in which we can see this “unyielding stability of opinion.” Stability has its uses, as every considerate man knows, and it is not too far-fetched to think of the South as the fly-wheel of the American nation. A fly-wheel is defined by the science of mechanics as a large wheel, revolving at a uniform rate, the function of which is to stabilize the speed of the machine, slowing it down if it begins to go too fast and speeding it up if it begins to go too slow. This function it performs through the physical force of inertia. There are certain ways in which the South has acted as a fly-wheel in our society. It has slowed down social change when that started moving rapidly. And, though this will surprise many people, it has speeded up some changes when change was going slowly. Without judging the political wisdom of these matters, I merely point out that without Southern order, the New Deal probably would have foundered. Without Southern votes, the Conscription act would not have been renewed in 1941. Generally speaking the South has always been the free trade section. It is not very romantic or very flattering to be given credit only for inertia. But conservatism is not always a matter of just being behind. Sometimes conservatives are in the lead. I could give you more examples of that if I had time. It requires little gathering up of thread to show that a mind produced by this heritage is diametrically opposed to communism. With its individualism, its belief in personality, its dislike of centralized government, and its religiosity, the South sees in the communist philosophy a combination of all it detests. If that issue comes to a showdown, which I hope does not happen, there will never be any doubt as to where the South stands.

I suspect that a good many of you entertain thoughts of changing the South, of making it just like the rest of the country, of seeing it “wake up.” It seems to me that the South has been just on the verge of “waking up” ever since I have been reading things about it. My advice is to be modest in your hopes. The South is one of those entities to which one can apply the French saying, “the more it changes the more it remains the same.” Even where you think you are making some headway, you may be only heading into quicksand. It waits until you are far enough in and then sucks you under. It is well to remember that the South is very proud of its past, hard as it has been; it does not want to be made over in anybody else’s image, and it has had a century of experience in fighting changes urged on it from the outside. I agree with W. J. Cash that the Southern mind is one of the most intransigent on earth; that is, one of the hardest minds to change. Ridiculing its beliefs has no more effect, as far as I have been able to observe, than ridiculing a person’s religious beliefs—and the Southerner’s beliefs have been a kind of secular religion with him: that only serves to convince him further that he is right and that you are damned.

INTRANSIGENCE IN ITSELF, however, is not good, of course. No mind ought to be impervious to suggestions and the influence of outside example. Intercommunication and cross fertilization are necessary. I covet a chance to talk someday to a Southern audience on what they need to learn from the North. But these express two-way relationships. It is a peculiar blindness to assume that the factors which have produced you are real, whereas the factors that have produced the other fellow are unreal. Those succeed best who go forward in the spirit of inquiry, seeking to understand the lines of force, and above all, realizing that there is something to be learned wherever complete lives are lived. With this kind of attitude it is possible for Virginia to learn from New England and New England from Virginia with a happy result that Parkman visualized but did not live to see.

2.

THE HUMANITIES IN A CENTURY OF THE COMMON MAN

THE CURRENT DEFENSE of humanities does not take into account the depth of the tide running against them, probably because it is politically unsettling to do so. But if we wish to acquaint ourselves with prospects we shall soon be grappling with as pressing realities, we shall have to look more candidly at what is undermining this historic body of study. If certain forces continue unabated, humanistic training as we have known it is not likely to survive another generation.

The first point to take into account is the paradoxical fact that the humanities are a discipline. I say paradoxical because there is a certain anomoly in asking the human being to undergo a regimen in order to become more human, or more humane, if we may give a focused meaning to the latter word. For the humanities are not the spontaneous, loose, and thoughtless expression of the human race, but on the contrary a highly difficult, concentrated, and directed expression which aims at a center—man at his best, not man transmuted into an angel, which is the proper study of divinity, but man incarnate, which is today, man in this world, making the best of his estate as he responds to its colors and configurations. That is why we can today admire the humanism of Greece and Rome, with indifference to the other tendencies of this civilization. Like every humanism, theirs was an achievement in sensibility and expression, and their brilliance was such that the modern world has up until now been glad to emulate. But it has always been accepted as a starting point that this emulation required education and effort, so that he who engaged in it sought to make himself over in accordance with an ideal superior to his untutored self. That would seem to be the premise of all humanistic study: the best which has been thought and said in the world was not uttered in a babble, but came slowly and often at the cost of self-torture, or at least of the mortification of passing desire. Education in the humanities has always meant a study of the classics, and a classic is a sort of cultural leader, to whom we submit ourselves out of our faith in edification.

Those who have been brought up on a humanistic education assume that there is something in the monuments of humanism which compels a respect. I fear that they are only taking a constant of their own lives to be a universal constant, which does not exist. Once before a long night descended upon these monuments. They were there to plead their case, but you cannot plead to those who will not hear. I should like to echo Whitman here, and say that if to have great poets, there must be great audiences, to have a victorious humanism, there must be a humanized audience. Enough has been said elsewhere of the dehumanizing pressures under which we labor; and acute observers have long detected in modern men, and not solely among those who are low-placed, an impulse to reach for the metaphorical pistol when the word culture is mentioned. There seems to be growing up an attitude of truculence, and nothing is more fatal to an appreciation of past accomplishment. There are plenty of signs that the traditional respect for artistic and intellectual distinction is being displaced by reverence for political power and institutions. The first of these requires a belief in personality, and the second tends to require a disbelief in it. That may prove the fundamental difference between them.

It is a commonplace of recent history that about 1930 our age turned sharply political. The impluse has been so strong in the 30’s and 40’s as to carry along with it, like some engrossing wave, a large part of all artistic expression. Artistic work came to be judged by whether or not it contributed to a conception of progress, and the term progress implies, of course, a direction. If we had to give a name to that direction, we would not have to seek beyond “social democracy.” This is a quite elastic term which covers, on the one extreme, the palest social amelioration, and on the other the strictest type of state-managed economy, requiring total regimentation. But whatever the form, social democracy exhibits two tendencies which are serious for the future of the humanities. One of these is a change in the structure of society, and the other a disposition of society’s income.

The first tendency works to break down the categories which have hitherto existed in favor of an undifferentiated mass. Without raising the question of whether these classes which have been privileged in the past have deserved their fortune, it can be asked whether society is not thereby sacrificing its strength. It seems to be incontrovertible that all progress in the higher meaning of that term—the progress which is the carrying out of an enlightened moral ambition—has not come from society fused as a mass, but from society held in a kind of counterpoise. Aristotle has illustrated this truth through an analogy with music. A state ceases to be a state when what is harmony is allowed to pass into unison. Now the mass seems to be this state of unison, which is with out the principle of counterpoise. In the other type of society, which has proved creative, we have numberless arrangements in which men are functionally placed against men, since this is in very fact its integrating principle. There is a substratum of unity, of course, for without that even our definition would collapse. The principle of counterpoise works in such a way that one element plays its part and gets its living by being poised against another element. The one is commissioned to get as much as it can out of the other, more than would ever be granted without the pressure of its demand. The requirement is always made in the name of some higher order, or liberty, or degree of enlightenment. For example, in this functional counterpoise we have teachers against students, policemen against citizens, buyers against sellers, managers against employees. It is the pluralistic kind of arrangement, in which one group stands for and enforces an ideal of performance like a competitor in a contest, viz., especially teachers and policemen, and the rest of us profit by their necessary though at times irksome office. The effect of this arrangement is to make society vertebrate, if we may vary the figure. I do not see what social democracy is going to substitute for this structure. What has been suggested or exhibited thus far is a more simple and more rigid pattern, which is without the flexibility of the healthy organic body. Now the humanities have in the past exerted their authority from a kind of limited autonomy; they have been one of the weights holding us in a counterpoise. In the new state, what is going to “enforce” the humanities? It is becoming clear that if the state does not do it, it will not be done; and yet if the state does it, it will likely be done in a way that will prove fatal.

This brings us to the second tendency, which is the economic transformation accompanying the process we have just sketched.

Everyday observation brings home to us that as the modern state expands its power, it becomes more jealous of the rights of individuals. It grows more rigorous in the exercise of the authority it owns; and secretly, one fears, it determines to extend its reach. It is inevitable that in this development it should become more curious about what individuals do with their incomes. Its level of understanding here is pretty low; expenditures for food, clothing, and shelter it can grasp, but as it seeks to placate the greatest number, things beyond these will be sold to it with increasing difficulty.

Let us consider for a moment the way in which it has brought the individual’s economic life under surveillance. First, the state somewhat timidly lays an income tax, applied at the outset to the wealthy, who are few and conspicuous. Next, on a plea of emergency, or extended social welfare, it increases the rates sharply, making them virtually confiscatory on the upper levels. This fact is not presented in defense of an unregenerate capitalism; its relevance to the argument appears when one recalls what has happened in this country to private donations to universities. As someone has remarked, you cannot eat up your millionaires with taxes and have them too.

The state finally adopts the withholding tax, which has the practical effect of putting everyone on the government payroll, since the government first looks at the salary, decides what fraction of it the individual shall have, and then passes on the remainder. Thus the private company becomes in effect a kind of disbursing agent for the government. This circumstance, which seems to have gone largely unnoticed, is symbolic in the highest degree of the trend even in “free” countries toward state collectivism. The bearing upon the case of culture is just this: what is going to happen to the supernumerary, non-utilitarian part of our activity when every individual is virtually on a government expense account? The inescapable conclusion is that the sum which goes for “brave, translunary things” is going to be politically determined—and inspired.

The modern world is creating an ideology whose hero is the satisfied consumer. He is the common denominator, and the offices of the state are to serve him, and not some imponderable ideal. This state serves, moreover, with an ever-increased efficiency. Today, everything is under control; nothing slips through; there is less chance than ever before that the state will fail of its announced aim. Populations have been numbered, incomes have been listed; techniques have become machine-like. We must therefore consider the chance of the humanities in a social democracy whose policies will be efficient, as far as its light goes, but whose ideals encounter an insistent pull downward.

At this certain point objections arise. “Culture,” which in common parlance stands for the humanities, is still a word with a great deal of prestige; it yet has associations of value which would induce politicians to sponsor it even if they felt no attachment to it. It is frequently seen that social democratic parties are more liberal than others in recognizing the claims of culture. They pledge large outlays for education and a better deal for the artists and intellectuals under their regime. The promise is fair, but it has to be distinguished from the performance for the plain reason that it is uttered as part of the ideal, and does not reflect the forces which will mold the actual. It is one thing to promise in the name of the people reverence for great art and intellectual distinction, but this is a situation in which the will, or it might be more accurately described, the impulse, of the people is going to determine. After all, one of the chief aims of social democracy is the removal of those barriers which in traditional or formalized societies stand between the people and an immediate fulfillment of their wishes.

What is likely to happen is this: in the primitive or heroic days of social democracy we would very likely get commissars or administrators who believe genuinely in the humanities and who would put up a battle for them. One is compelled to suppose that they would be battling as individuals, against indifference from above and poorly educated taste from below. For a time they might do much, but it would be foolish to mistake in this case accident for essence. For these men would be individualists, and sooner or later they would be supplanted by others closer to popular sympathy. It is likely that their very success would be held against them, so refined are the arts of political detraction. They would be described as aloof from the people, or as thwarters of the popular will; for, in fact, they would be representing an “undemocratic” force. Their successors would be the political type, who know all too well how to commit a murder while concealed under the cloak of popular sentiment. They will give the public what it wants and provide the rationalization. This is the fate in store for all state-controlled culture.

Anyone who thinks this is a fanciful alarm should reflect upon what has been done to public education in the United States. The boast of the innovating “progressive” schools is that they prepare the youth for a changing world. Would it not be incomparably more sensible to prepare the youth to understand why the world is changing? This is what the humanities do. There is little appeal here to the exponents of progressive education because they have no desire to rise above the confusion. If they did, they would soon be at odds with the weight and mass of general opinion. Consequently, in our present educational system, popular pressure and specious doctrines have almost extinguished the idea of discipline. Yet I am inclined to think that this system has been better protected than one could expect the humanities to be in a pure social democracy.1

There are further reasons for saying that we have reached a point at which these dangers are not purely speculative. We are able to examine three years of socialist rule in Britain, which indicates that we have not been expressing undue alarm. I shall cite two passages from a “Letter from England,” by D. S. Savage, appearing in the Spring, 1946, issue of the Hudson Review. “A Labour government is in power and, so far from fostering the arts and subsidizing artists as some of its more gullible adherents among the intelligentsia had hoped, it is proving on the whole inimical to cultural values; an implicit doctrine of ‘bread alone’—that is, bread and guns—prevails.” Mr. Savage ventures a prediction of his own. “It seems possible that as the social order hardens into shape we shall witness the emergence of two cultures—an official and an unofficial, the one well-paid, flashy, and sterile, drawing upon the talent of debauched artists and intellectuals, and the other surviving only through extreme enthusiasm and devotion.”

It is an historic truth which holds good for the past several centuries of our life that culture has developed from the liberty of the superior individual to love superior things. Whether these individuals established foundations, or whether they merely sustained a market for works of distinction out of their earned or unearned surpluses, the result was as we have seen. The essential condition was that the individual had a power of decree. We have observed that the new social regime does not permit the individual much power of decree, and it is very jealous of these surpluses. Its present humor is to describe them as theft and to appropriate them on one pretext and another. We arrive then at a state in which the single, sensitive, imaginative person cannot project his will in this fashion. As Paul Valery has suggested, liberty in the modern “free” state is simply a liberty to be like the masses because political control is vested in them. They feel “free” because what they will is made law. The more one resembles the mass man, the freer he is because his impulses run the same channel as theirs. And if he is antipathetic to the idols of the mass, he may be very unfree, because mass law and mass ethos are enforced with peculiar rigor, and there is no court of appeal. Traditional forms of government now in disfavor provided a better haven for the individualist because they felt some distrust of their own power and often relaxed it in administration. It is the special mark of the mass that it has not such feeling about its power, and is exhilirated to see it brutally exercised. For its attitude toward the non-conventional, see our daily tabloids.

In summary, we face a future in which the mass is going to determine with increasing power what is done with the total productivity of the nation. There is little chance that it will devote a substantial part of that productivity to the development of pure science (unless science can be hitched to some wagon like preparation for defense in war), or to the creation of works of art which baffle or offend it.

It is now time to look at one or two aesthetic difficulties which will prove handicaps in an age dominated by this new mentality. I shall consider the first of these as the aesthetic plebeianism. There is an aesthetic of common life and an aesthetic of noble life, and the two are far from meeting. To find a principle that distinguishes them it is only necessary to point out that they correlate closely with optimism and pessimism. The noble view of life, which is the view that has conditioned art in the past, tends always to be pessimistic for the plain reason that life “does not measure up.” It is not satisfactory when compared with that clear pattern which the believer in excellence has in his soul. This is clearly proved by the fact that the arts of tragedy and satire have flourished in ages which were predominantly aristocratic, that is to say, ages which accepted as a reality the distinction between good and bad men, or actions. It could not be otherwise, for satire is the reproof of man, and the very plot of tragedy depends upon the “good” man struggling in a net of evil. Whoever thinks he knows how the world ought to be feels a certain melancholy that it is not so. In all great art therefore there is a certain pessimistic overcast. Art is a kind of protest, a transfiguration. It has been remarked that if one looks below the surface of two of the most dazzling periods of creativeness in history, the Greek and the Elizabethan, he finds a well of melancholy. Shakespeare’s plays deepened in gravity as the man matured.

But what occurs when life is made not the subject of a critique, but an occasion for relaxed joyousness and animal abandon? There have been signs for years that we are passing out of one climate of belief into another. A significant witness is that tragedy has all but disappeared. And if this is but a beginning, it may be no exaggeration to say that the new climate is to be anti-artistic and anti-cultural. We may be faced with a time when the root-idea of standards, which is the anchor of all humanistic discipline, is to be eradicated. Indeed, our expression here may be too cautious, for the extent to which knowledge has been displaced by opinion makes this almost now an actuality.

The aristocratic view of life is waning because the mass everlastingly insists that the world be represented as pleasant. One quality which the crowd is never able to acquire is a hardheadedness sufficient to accept the realism of the world. For this reason it falsifies whatever it touches, and there is no hope for true art where the principle at work is falsification. To foretell the kind of art expression which the mass is going to demand, and demand effectively by reason of its economic power, one has only to look at today’s media of mass circulation. The preferred themes are romantic love (this seems to be a modern version of the Aphrodite Pandemos, which is distinct from the Aphrodite Ouranios of the ancients, and from the courtly love of the mediaevals), success stories, fantasies, comedy with elements of violence and sadism. I suspect that the truest index to this mentality is the comic strip, whose offenses against taste and aestheic theory it would be impossible to number. But present in all of them is the unrelenting demand that the world be subjectivized to accord with our humor. The herd man never grows reconciled to the fact that life is a defeat, and that this defeat is its real story. He wants instead a pleasing fiction by which his hopes are ingeniously flattered. It is not pressing the matter too far to say that what he wants is deception.

What we are actually contending with in these aesthetic plebeianisms is the mass’ deep-seated and enduring hostility to the idea of discipline. It does finally require some discipline of mind to accept the fact that life is not a triumphal progress, but a sadly mixed affair with many a disenchantment. When Arnold talked of seeing things steadily and seeing them whole, he must have had reference to just this evasiveness and flabbiness of mind which it is the function of culture to remove—where it can. It will never do that where the ideal is the thing made easy.

The psychological springs of this hostility are not far to seek. The mass can never grant that there is something superior to its habitus and its way of conduct. For as soon as it grants the existence of such, it is under a theoretic discipline. The mass is a jealous sovereign. Those who challenge it from a superior level it seeks to destroy with the ad hominem attack. It is daily verifiable that in a culture so maintained, the best rewarded of those who work in the arts are soothers and entertainers.

A secondary problem posed by the aesthetic plebeianism is the impossibility of maintaining a meaningful criticism. Obviously this aesthetic can never circumvent the criterion of popularity. It finds itself always in the tautologous position of saying that because a thing is popular, it is good; and because it is good, it is popular.

Art criticism is here in the same dilemma as political democracy when the latter sets up the voice of the people as the voice of God. Either it must accept its own proposition and say that the people is infallible, and can never for one minute, or in one action, go wrong; or else it must yield its whole position. If one admits that the people can even for a minute be deluded; that is to say, that one man or one minority can be right for a minute and the people wrong, then he admits the existence of a right that is not determined by the people. I feel this to be so important that I shall try to put it in another way. The moment one grants that the people can sometimes err, even temporarily, even when bamboozled by demagogues or the press, he has scuttled the thesis of the popular determination of truth. For he has already admitted that the people may be one thing and the truth another, and this could never be if popular opinion were the sole determinant of what is true.

Now when we apply this finding to the humanities in a mass society, the same interesting thing is revealed. Either popular impression is infallible, and the people are the only judge of what they should have, or else one must admit the existence of an independently grounded aesthetic. As soon as the latter is admitted, however, the beautiful and the non-beautiful become constants, and there is something superior to the popular taste, which may be applied to it. But I fear the mass is too intractable an animal to grant these existences after it has sensed the way they are tending.

Put into language, its denial seems to take this form: it does not matter if we disdain the moral earnestness of Christianity; it does not matter if we refuse to think with the clarity of the Greeks; it does not matter that we cannot dramatize with the success of the Elizabethans; it does not matter if we fall below the eighteenth century in elegance of manner. It does not matter? I suppose one can argue here only by begging the question and saying that it is blasphemy not to prefer the good and obey its commandments. And possibly it is as much as we can do about the condition of modern man to say that he is blasphemous. In the past he has blasphemed idols that were set up for him; and now he blasphemes those which he set up for himself when he repudiates the humanities.

The second difficulty may be, at some deeper level, the source of the first. As a teacher of humanities, I have grown disturbed over an attitude which is appearing in students, including those with some endowment of sensibility. I could describe it briefly by calling it a distrust of all rhetoric. The great passages of the past, the flights of Milton, of Burke, of Arnold, are lost upon them; and they show an active distrust of contemporary matter which is rhetorically presented. The power of language to stir, or to direct the feelings of man, seems only to provoke them to an antagonism. This has gone so far that the once-familiar rhetoric of pulpit and platform is beginning to seem an anachronism. Two different interpretations can be put upon this development.

The first is that the new generation has become scientific-minded and is insisting upon pure notation in all discourse. That is to say, it has accepted the advice of the semanticists and has resolved to have no traffic with words whose objective reference is dubious. They are impatient of anything which lacks the objective correlative, and so when language passes from a sort of literal correspondence with what is signified, to metaphor, as all rhetoric must, they simply cease to accept. Since they cultivate the scientist’s detached outlook upon the world, emotion is for them mere disturbance in what ought to be clear communication. Pure notation will give them knowledge in the same way that mathematics does, or nearly so. And as for making up their minds about how to feel about a thing, well, that can wait—perhaps upon the development of yet another science.

The second interpretation, which I believe to be the true one, is that our generation is losing faith in the value of value. It will appear on a moment’s reflection that this is the same as losing faith itself. Ours is not so much a generation of vipers as a faithless generation. Since the whole of humanistic study is based upon the acceptance of value, here is where the decay has its source. People have suffered much in the past decades, and they have not often been told the truth by their political leaders. It may be that there has set in as a defense a kind of psychic numbness. Since all feeling brings imposition in its train, there is a will not to feel. (I have noted among more than one student a kind of shrinking from propaganda as though it were a dreaded plague loose in the world—which in a way it may be.) Now we approach the ultimate in disenchantment.

Here would be cause for rejoicing if it were possible for man to live in a devalued world, but man is simply not that kind of animal. He has got to show his inclinations. And with the death of value there is every possibility that he will do it in grotesque, unintelligible ways, in fetishism and explosions of hard feeling, in demonism and vandalism. There is not the slightest possibility that he is less a creature of feeling than before. But the old gods have gone and the new gods have not arrived. It may be that in the interim he will turn into an idol smasher. The humanities seem high on the list of the things he will rudely reject, or allow to drift into obscurity. I fear that this is the meaning of the hatred of the old spacious rhetoric, with its tendency to elevate all that is described.

Most surveys of the plight of the humanities I have seen fall into wishful conclusions.

One supposition is that the colleges will be able to save them by a reform of curriculum. In response to this we see the inauguration of courses in general education. But this seems to be in essence only a streamlining. The courses are recast, made more compact and better integrated. The new conception, however, is hardly a discipline in the humanities such as used to season the graduates of our universities. It may easily degenerate into another requirement like the ubiquitous English composition. The intention is good, of course, but the hope is not great. There was a time when a cultural education was income-producing for the legions that take it, and that means inevitably a different kind of education. Statistics on what the returned veterans have studied in our universities will prove the point.

Or it is supposed that larger grants to this and that will restore the balance. These will be gratefully received, and they will help, but it is sanguine to suppose that they will restore the balance in a displacement so huge as the one taking place before our eyes. I have already shown that public sources of such grants have a very limited independence and could not long survive political attack. A grant to the humanities today is like a contribution to a church whose doctrines we have no thought of honoring with practice. I doubt that anything large and vigorous can be sustained on this.

Teachers of the humanities are going the way of teachers of Latin and Greek and elocution unless we have something like a Second Coming of faith in the values.

New Individualistic Review welcomes contributions for publication from its readers. Essays should not exceed 5,000 words, and should be type-written. All manuscripts will receive careful consideration.

Reflections on the Loss of Liberty

GEORGE J. STIGLER*

THE CONSERVATIVES have been in high alarm at the encroachments on liberty by the state for at least 30 years. It would be possible to amass a volume of ominous predictions on the disappearance of individual freedom and responsibility, and not by silly people.

Yet if we canvass the population we shall find few people who feel that their range of actions is seriously curtailed by the state. This is no proof that the liberties of the individual are unimpaired. The most exploited of individuals probably does not feel the least bit exploited. The Negro lawyer who is refused admission to a select club feels outraged, whereas his grandfather was probably a complaisant slave. But neither is complacency a proof of growing tyranny.

So let us look at what liberties, if any, the typical American has lost in the recent decades of growing political control over our lives. Let us face this American as he completes his education and enters the labor force. Of what has he been deprived?

Some additional barriers have been put in the way of entrance into various occupations. Some barriers consist of the direct prescription of types of training; for example, to teach in a public school one must take certain pedagogical courses. More often, the state imposes tests—as for doctors and lawyers and barbers and taxi drivers—which in turn require certain types of training in order to be passed.

But few people consider such restrictions on occupations to be invasions of personal liberty. The restrictions may be unwise—those for school teachers are generally so viewed by the university world—but since the motive is the protection of users of the service, and since the requirements are directed to competence even when they are inefficient or inappropriate, no question of liberty seems involved. No one, we will be told, has a right to practice barbering or medicine without obtaining the proper training. The freedom of men to choose among occupations is a freedom contingent on the willingness and ability to acquire the necessary competence. The mentally and physically untalented man has no inherent right to pilot a commercial plane, or any other type.

For consider: we surely do not say that a man born with weak or clumsy legs has been denied the portion of his liberty consisting of athletic occupations. At most a man is entitled to try to enter those callings which he can discharge at a level of skill which the community establishes.

“Which the community establishes.” The obverse of the choice of occupations is the choice of consumers. It can be said that the denial of my right to patronize lawyers or doctors with less preparation than the majority of my fellow citizens deem appropriate is the complementary invasion of my liberty. Why should the community establish the lowest levels of skill and training with which I satisfy my needs?

The answer is, of course, that on average, or at least in an appreciable fraction of cases, I am deemed incompetent to perform this task of setting standards of competence. I am, it is said, incapable of distinguishing a good surgeon from a butcher, a good lawyer from a fraud, a competent plumber from a bumbler, and so on.

Now one could quarrel with both sides of this position: neither has my own incompetence been well demonstrated (especially when account is taken of my ability to buy gurantees of competence) nor has anyone established the ability of other judges to avoid mistakes or at least crudity of judgment. But these are questions of efficiency much more than of justice, so I put them aside not as unimportant but as temporarily irrelevant.

The real point is that the community at large does not think a man should have the right to make large mistakes as a consumer. The man who cannot buy drugs without a prescription does not really rebel at this undubitably expensive requirement. The man who is denied the services of a cheaper and less well trained doctor or teacher does not feel that he has been seriously imposed upon.

THE CALL TO the ramparts of freedom is an unmeaning slogan in this area. If we were to press our typical American of age 22, he would tell us that some infringements on his liberties would be intolerable, but they would be political and social rather than economic: free speech should not be threatened—at least by McCarthy—and Negroes should not be discriminated against. No economic regulation of consumers would elicit serious objection, and this younger person would often be prepared to go even farther in regulating consumers in areas such as health and education. We would have to propose policies remote from current discussion, such as compulsory location of families to hasten racial integration, before we should encounter serious resistance to public controls in principle.

Governmental expenditures have replaced private expenditures to a substantial degree, and this shift poses a related problem to liberty. The problem seems less pressing because private expenditures have increased in absolute amount even though public spending has risen in this century from perhaps 5 to 25 per cent of income. Yet the shift has been real: we can no longer determine, as individuals, the research activities or dormitory construction of universities, the housing of cities, the operation of employment exchanges, the amount of wheat or tobacco grown, or a hundred other economic activities. But again the typical American finds each of these activities worth while—meaning that he thinks that the activity will not be supported on an adequate scale by private persons.

ON A CLOSER VIEW OF THINGS, some restrictions on individuals as workers will strike most Americans as unfair, especially if they are presented as indictments. Complaints will be aroused by a demonstration that political favorites have been enriched by governmental decisions which excluded honest competitors—and of course this can be demonstrated from time to time, or perhaps more often. The complaint, however, will involve equity much more than liberty.

This conclusion, that Americans do not think that the state presently or in the near future will impair the liberties that a man has a right to posses is, of course, inevitable. It is merely another way of saying that our franchise is broad, our representatives will not pass laws to which most of us are opposed, or refuse to pass laws which most of us want. We have the political system we want.

The conservative, or traditional liberal, or libertarian, or whatever we may call him, will surely concede this proposition in the large. He will say that this is precisely the problem of our times: to educate the typical American to the dangers of gradual loss of liberty. One would think that if liberty is so important that a statue is erected to her, the demonstration that a moderate decline of personal freedom leads with high probability to tyranny would be available in paperback at every drugstore. It is not so easy to find. In fact, it may not exist.

That there have been many tyrannies no one will dispute, and indeed it is at least as easy to find them in the twentieth century as in any other. Moreover, the loss of vital liberties does not take place in a single step, so one can truly say that a tyranny is entered by degrees. But one can easily reverse this truism and assert that some decrease in liberties will always lead to more, until basic liberties are lost. Alcoholics presumably increase their drinking gradually, but it is not true that everyone who drinks becomes an alcoholic.

THE NEAREST APPROACH to a demonstration that the tendency of state controls to increase beyond the limits consistent with liberty is found in Hayek’s Road to Serfdom. But Hayek makes no attempt to prove that such a tendency exists, although there are allegations to this effect.1 This profound study has two very different purposes:

(1) A demonstration that comprehensive political control of economic life will reduce personal liberty (political and intellectual as well as economic) to a pathetic minimum.

I may observe, in passing, that this argument seems to me irresistible and I know of no serious attempt to refute it. It will be accepted by almost everyone who realizes the import of comprehensive controls.2

(2) If the expansion of control of economic life which has been underway in Britain, the United States, and other democratic western countries should continue long enough and far enough, the totalitarian system of Nazi Germany and Fascist Italy will eventually be reached.

This second theme is not an historical proposition—and no historical evidence was given: it is the analytical proposition that totalitarian systems are an extreme form of, not a different type from, the democratic “welfare” states to whom the book was addressed. Hayek was telling gentlemen drinkers, and especially some Englishmen—who were becoming heavy drinkers, not to become alcoholics.

The twenty-five years that have passed since the outbreak of World War II have seen further expansions of political control over economic life in the United States, and in most western European nations except Germany. Yet no serious diminution of liberties deemed important by the mass of educated (or uneducated) opinion has taken place. Another hundred years of governmental expansion at the pace of these recent decades would surely destroy our basic liberties, but what evidence is there that such an expansion will continue? Quite clearly, no such evidence has been assembled.

IT IS ONE THING to deny that evidence exists for the persistence of present trends to where they will endanger our liberties, and quite another to deny that such a momentum exists. Or, differently put, where is the evidence that we won’t carry these political controls over economic life to a liberty-destroying stage?

This may be an impeccable debating point, but it will carry much less conviction than an empirical demonstration of the difficulty of stopping a trend. When men have projected the tendency of a society to a distant terminus, they have invariably committed two errors. The tendency develops in a larger number of directions than the prophet has discerned: no tendency is as single-minded as its observer believes. And the tendency encounters other and contradictory forces in the society, which eventually give the course of events a wholly different turn. We have no reason to believe that the current prophets are any wiser.

SO I CONCLUDE: we should either fish or cut bait. On the subject of liberty the conservative should either become silent, or find something useful to say. I think there is something useful to say, and here is what it is.

The proof that there are dangers to the liberty and dignity of the individual in the present institutions must be that such liberties have already been impaired. If it can be shown that in important areas of economic life substantial and unnecessary invasions of personal freedom are already operative, the case for caution and restraint in invoking new political controls will acquire content and conviction. We cannot scare modern man with incantations, but we can frighten him with evidence.

The evidence, I think, will take a variety of forms:

1. A full study of the barriers of men to entry in occupations, and of the extent to which the barriers can be defended on social grounds, will demonstrate, I believe, that the area of occupational freedom has been seriously restricted simply for reasons of ignorance, or special interest. If this is correct—if the present practices will not bear close review—the danger of further extensions of such barriers will be substantially reduced.
2. The widespread belief in the incompetence of the individual and the efficacy of economic censorship of tastes is the second large area of potential invasion of personal freedom. This development has surely not benefited from close study: it has happened that errors of judgment or deficiencies of knowledge of a tiny fraction of consumers have led to restraints being imposed on all consumers, without even checking what gains are achieved by the censorship. My own study of the S.E.C., indeed, reveals a clear instance of where the gains are not worth the cost. If consumers are wiser than the public believes, and if political intervention is not infallible and economical, we shall be better able to stop future invasions of the consumer’s freedom.

I do not know whether justice is more or less important than liberty, or whether they are even fully separable. The standards of justice under political direction of economic life, I conjecture, are deplorably low:

3. The state is now the giver of many valuable rights. The favorites get TV channels, or oil import quotas, or F.D.I.C. charters, or leases on federal grazing lands, or N. Y. state liquor store licenses, or waivers from the local zoining board. Who has studied the bases on which these favors are allotted? I suspect that a careful study would display vast caprice, much venality, and a considerable number of calluses on applicants’ knees and navels. The harshness of competition may mellow somewhat in public repute when alternative systems of distributive justice are studied.

Studies of the types here proposed will, I am reasonably confident, give vitality and content and direction to fears for liberty in our society. But whether the studies confirm the need for reform and vigilance in preserving freedom, or suggest that such fears are premature, they are essential to remove this subject from the category of cliché. It is no service to liberty, or to conservatism, to continue to preach the imminent or eventual disappearance of freedom; let’s learn what we’re talking about.

The Fusionists on Liberalism and Tradition

RALPH RAICO*

THE PUBLICATION OF a symposium on the question, “What is conservatism?”1 provides us with an opportunity to explore once again a complex of issues frequently raised in these pages—that having to do with the differences between libertarianism and conservatism. In this article, I shall not attempt to deal with all of the areas covered by these differences, nor with the essays of all twelve contributors to Meyer’s symposium. Instead, I shall deal merely with certain aspects of the attempted reconciliation of the two philosophies that goes by the name of “fusionism.”

Frank S. Meyer and M. Stanton Evans are the two most notable exponents of the fusionist position, and they present their case in two essays in the present volume.2 The problem they are trying to solve may be stated in this way: the term “conservative” when applied to various writers in America today (especially when applied by social democratic writers, who usually have little familiarity with the literature) appears, on closer examination, to be equivocal. The authors of the following two statements, for example, although they are both sometimes considered “conservatives,” clearly have widely divergent approaches to so basic a question as the nature of government:

In mankind’s experience, government has always figured as an institution publicly representing shared insights into the meaning of life, God, man, nature, time.3

Society cannot exist if the majority is not ready to hinder, by the application or threat of violent action, minorities from destroying the social order. This power is vested in the state or government. . . . Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen. The essential feature of government is the enforcement of its decrees by beating, killing, and imprisonment.4

There are, in fact, as Meyer and Evans point out, two distinct groups of writers which the term “conservative” in its current sense encompasses: those whose intellectual forebears are to be found chiefly in the ranks of the classical liberals of the 18th and 19th centuries (this group would include Hayek, Friedman, von Mises, etc.), and those who trace their ideas back primarily to Burke and the 19th century conservatives (Kirk is the best-known representative of this group, which also includes others associated with National Review and Modern Age). The first group is called by Meyer the “libertarians,” and the second the “traditionalists.” Often libertarians and traditionalists attack one another vigorously, and some in each camp have even maintained that the two view-points are fundamentally at absolute odds. It is true that members of the two factions very often have had similar opinions on questions of immediate political importance (which is one of the chief reasons why they are looked on as factions of one movement), but anyone who has read the works of the two groups is aware that there exist significant differences on a more basic level. These have to do with such matters as the weight given to tradition, the arguments used for freedom, the priority allowed freedom as against other values (order, virtue, and so on), as well as with (as the quotations from Niemeyer and von Mises show) what I am afraid we may have to call the “philosophical presuppositions” of the two view-points. The imposing task the fusionists have undertaken, then, is to resolve the differences between libertarians and traditionalists—and this by showing that both have something of fundamental value to contribute to a common “conservatism” (for that is to be the name of the amalgamated movement), and that both are likewise at fault in certain respects.

WHAT THE LIBERTARIAN (or classical liberal) has to offer, the fusionists maintain, is a good understanding of the meaning of freedom, of the dangers facing it, and especially of the connection between economic and other forms of freedom. He is mistaken, however, in disregarding “value” and the moral law, and in having no understanding of the goal and raison d’être of freedom, which is “virtue.” The traditionalist, on the other hand, is the complimentary figure to the libertarian, and brings to the synthesis a—as the phrase goes—deep commitment to moral value, to virtue and so on. Moreover, he understands the part that tradition must play in the life of society, while the libertarian typically “rejects tradition.” Thus, the stage is set for the synthesis, which will consist in a political philosophy developed on the basis of “reason operating within tradition,” and upholding freedom as the highest secular end of man and virtue as the highest end of man tout court.

It will be seen that anything approaching an exhaustive critique of this thesis would be impossible here.5 What I shall attempt to do, therefore, is simply to clear some ground by examining certain points in the fusionist thesis, with the aim of helping to provide the basis for a more analytical and less rhetorical discussion of these issues than has sometimes been the case in the past.

Before one can determine to what extent, if any, classical liberalism6 must be modified, it is absolutely crucial, of course, for one to have a correct conception of what classical liberalism means. It appears to me, however, that in this regard, conservative and fusionist writers, while quite dogmatic, are also quite mistaken. As a rule, they are in the habit of treating liberalism in a casual, off-handed way, scarcely ever bringing forward any actual evidence to substantiate their rather free-swinging claims. At the risk of seeming unfair to M. Stanton Evans—which is certainly not my intention—I shall submit his conception of classical liberalism, which appears to me fairly typical of this view, to an extended analysis.

Evans states:

The libertarian, or classical liberal, characteristically denies the existence of a God-centered moral order,7 to which man should subordinate his will and reason. Alleging human freedom as the single moral imperative, he otherwise is a thoroughgoing relativist, pragmatist, and materialist. [p. 69]

In this amazing statement, Evans asserts the following concerning the “typical” classical liberal or libertarian:

(1) he denies the existence of a God-centered moral order;8
(2) he alleges human freedom to be the single moral imperative;
(3) aside from (2), he is a complete relativist, pragmatist, and materialist.

Let us deal with these allegations in detail.

(1) This is false, of course, in regard to the many liberals who were Christians (e.g., Ricardo, Cobden, Bright, Bastiat, Madame de Stael, Acton, Macaulay, etc.).9 Indeed, many classical liberals (including present-day ones) have felt that the connection between their political and their religious and ethical views has been a very intimate one. Frédéric Bastiat, for instance, who, because of his “superficiality” and “glib optimism” is sometimes taken to be the very paradigm example of a classical liberal, expressed himself as follows towards the end of one of his more important works:

There is a leading idea which runs through the whole of this work, which pervades and animates every page and every line of it; and that idea is embodied in the opening words of the Christian Creed—I BELIEVE IN GOD.10

John Bright was the man who, with Cobden, and for twenty years after Cobden’s death, was the leader of the Manchester School in British politics and political and economic thought—surely a typical liberal, if there is such a thing. Yet the following characterization of Bright, by his most authoritative biographer, hardly seems compatible with Evan’s description:

Religious feeling, in its simplest form, was the very basis of his life. He was always a Friend [i.e., Quaker] before everything else; and a servant of God; a man of deep, though ever more silent devotion.11

Although Christians were probably, and theists certainly, in the majority, it is true that a certain number of liberals were atheists or (much more frequently) agnostics: J. S. Mill, Herbert Spencer, John Morley, etc. Nevertheless, the following points ought to be made: (a) the denial of a “God-centered moral order” has been no more characteristic of classical liberalism than its affirmation; (b) even if a majority of liberals had been atheists and agnostics, the connection is so far accidental and historically-conditioned, and not logical; (c) supposing the majority of liberals to have been tainted with unbelief in one form or another, Evans still presents no reasons for dismissing the liberalism of Christian writers like Bastiat.

(2) The second charge—that the classical liberal or libertarian alleges “human freedom as the single moral imperative”—can hardly be seriously meant. Does Evans mean to say that liberals characteristically do not believe benevolence, or even lack of malice, to be morally enjoined on men? This cannot have been true of the many Christian liberals, and neither was it the case with the non-Christians, least of all the Benthamite utilitarians among them. Evans mentions only two names in connection with his general description: J. S. Mill and Herbert Spencer. Spencer explicitly states that, in addition to justice (respect for the rights of others), the moral code enjoins both “negative” and “positive” beneficence, the latter being the capacity to receive happiness from the happiness of others.12 This may not be an especially elevated view of our moral obligations, but it is nonetheless sufficient to contradict Evans’ statement, at least in regard to one of the only two writers he mentions by name. But the statement is even more erroneous in regard to the utilitarian liberals. J. S. Mill makes their position clear in his well-known essay, “Utilitarianism”:

I must again repeat what the assailants of utilitarianism seldom have the justice to acknowledge, that the happiness which forms the utilitarian standard of what is right in conduct, is not the agent’s own happiness, but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested and benevolent spectator. In the golden rule of Jesus of Nazareth, we read the complete spirit of the ethics of utility. To do as you would be done by, and to love your neighbor as yourself, constitute the ideal perfection of utilitarian morality.13

Far from being “characteristic” of classical liberalism, (2) is an attribute for which I doubt that a single example could be found in the whole history of liberalism.

(3) EVANS GIVES US virtually no idea of what he might mean by these three highly-charged terms, “materialist,” “relativist,” and “pragmatist,” so we will have to deal with them as best we may.

“Materialist” may have a precise philosophical, or a loose vulgar, meaning. Taken in the first sense, the assertion would be absurd: if any metaphysic were characteristic of liberalism, it would probably be idealism in one form or another, not materialism. Taken in the vulgar sense of addiction to, or espousal of, “material” (usually sensual) pleasures, the assertion is also invalid. It is, indeed, hardly worth rebutting, since to support this allegation, Evans only adduces a statement by—Ernest Renan. We might as well point out, however, that, even ignoring the fact that “materialist” is scarcely a fair description of Bentham’s form of hedonism, and certainly not of J. S. Mill’s, the German liberals of the Classical period—e.g., von Humboldt and Kant—and the French liberals of the Restoration—e.g., Constant and Madame de Stael—assuredly had ideas on ethics and the destiny of man independent of any form of the pleasure philosophy.

In Evans’ view, the liberals were also typically “pragmatists.” Whether this is supposed to mean that they were followers of Peirce and William James, or, in some looser sense, that they believed that the truth was “what works,” is unclear. It would be tedious to attempt to salvage this claim by lending it some semi-reasonable meaning, and then showing that even then it had no foundation in fact. The rebuttal of the assertion, therefore, will wait upon its being given some sense.

Evans also claims under (3) that the liberals, aside from their adherence to freedom, have been complete “moral relativists.”14 This brings up an issue which is frequently raised by conservatives: often, the essence of the “moral crisis of our age” is seen in the decline of faith in “absolute values.” It should be clear that the question of moral relativism vs. moral absolutism cannot even be intelligently approached until we know what is to be understood by these terms, but conservatives, in discussing the subject, generally fail to indicate their meaning. In general philosophical discussion, the most important senses of the term “moral relativism” appear to be: (a) the idea that moral rules are defeasible, i.e., are not unconditionally valid; and, more frequently, (b) the idea that “it is logically possible for two persons to accept verbally conflicting ethical statements without at least one of them being mistaken.15

(a) The idea that moral rules must be absolute in the sense that they are binding under all empirically possible conditions appears to be a sense in which conservatives often use the term. And yet it seems to me hardly a defensible position. Is it, after all, possible to cite a single moral injunction with content (not, e.g., “It is good to do the Will of God”) and with application to social questions (not, e.g., “It is good to love God”) which is unconditionally valid? Would it, for instance, be impermissable under all possible conditions to take the life of a man whom one knows to be innocent? It seems to me that circumstances could well be imagined in which this would be the reasonable—possibly even the moral—thing to do. Whether or not supported by classical liberals, moral absolutism in this sense appears to me to be an untenable position, the rejection of which cannot rightfully be made the grounds for censuring anyone.

(b) The more common sense of “moral relativism” is the position that it is possible for what appear to be contradictory ethical statements to be true at the same time. A relativist in this sense might hold, for instance, that ethical statements are simply reports of the speaker’s subjective feelings, and, therefore, the statement, “Murder is evil,” may be true or false, depending on the actual feelings of the person who uttered it. Another form of this second sense would be that of a relativist who might hold that it is impossible to make ethical judgments transcending the bounds of different societies, and that an ethical statement may be “true” in one society and “false” in another. In this sense of relativism, however, the utilitarians (to take the group Evans probably has chiefly in mind) were almost paradigm absolutists. The reason for this is obvious. For any given situation in which an ethical judgment is to be made, the facts are what they are: one decision will maximize happiness, while a different one will not maximize it.16 Thus, although we may be mistaken in our decision, still, in principle, there is only one true judgment in each ethical situation.

Thus, of the two most important senses of “moral absolutism,” one is a sense in which, whatever the liberals may have thought, it cannot reasonably be defended; the other is a sense for which many adherents of moral absolutism can be found among the classical liberals.

I HAVE SPENT a good deal of time—and probably the reader’s patience as well—in discussing these two sentences. But my justification lies primarily in the circumstance that these statements well summarize the inaccurate conception—“impression” would perhaps be a better word—of classical liberalism which many conservatives hold and propagate. It may well be that classical liberalism is superficial, unrealistic and obsolete; apparently modern-day conservatives are eager to join most of the rest of the 20th century in announcing so. But before we can accept this evaluation—and with it the idea that liberalism must at least be substantially modified—we must be satisfied, as so far we cannot be, that it is really classical liberalism which has been demolished, and not a strawman.

NOW I WANT TO turn my attention to one of the chief problems which Meyer’s and Evans’ fusionism must attempt to solve: that of tradition. The role of tradition is often seen as the crux of the division between the two wings of what is allegedly basically one movement; the traditionalists, not unnaturally, emphasize tradition, while the libertarians are said to reject it. But just what is at issue here would be much clearer if, instead of scornful references to the French Revolution and the “apotheosis of reason,” conservative and fusionist writers had outlined, in a more or less systematic way, what they have in mind when they speak of “tradition,” and what they claim for it and why. Nowhere is lack of precision in this whole area more regrettable than in the repeated assertion that the classical liberals “reject tradition.” The rejection of tradition can mean many different sorts of things, and depending on what is meant, it may be a good or a bad thing.

If it means, for example, that the traditionality of an idea is not to be taken by the political philosopher as an argument for its truth, then the rejection of tradition, as far as I can see, is totally unobjectionable. For to defend the truth of an assertion on the basis that it has been the traditional belief of our society, presupposes that any belief that has been traditionally accepted by our society is very likely to be a true one. But contrary examples are available in too great an abundance to permit of any confidence in such a premise. Thus, recourse to tradition in abstract, speculative argument is invalid.

On the other hand, when we say that a person accepts tradition, we might mean that he believes that tradition ought to play a large part, not in the evaluation of putative truths, but in the functioning of society, which is obviously a different thing. Here a person might argue along these lines: science is one thing, and life another. A systematic Cartesian doubt may be useful in the scientific enterprise, but, applied to social life, it would make mankind like “the flies of summer.” It is necessary for the continuance of society, it could be argued, that a good deal of our moral code, for instance, be taken simply on faith, at least by the great majority of people, and probably by everyone. It would be intolerable to have the existence of organized society depend on each individual arriving at the indispensible moral rules through his own reasoning. Thus, there must be some means of attaching people to these rules. One of the most powerful of these means, the argument might continue, is tradition. People who could not follow the abstract arguments for the moral code nevertheless obey it, because of the affection and regard surrounding mores which have been adhered to for a very long time. Now, this is a plausible argument, and may well be substantially correct. The important thing to realize, however, is that it involves something completely different from maintaining the truth of a given assertion on the basis of its traditionality.

Now, the second category may be further subdivided: there are traditions that are maintained in the social sector (typically the sector of free interaction among individuals) and there are traditions pertaining to the government sector (typically the sector of force or the threat of force). An example of traditionality in the social sector would be the continuance of Christianity in its received forms as the result of the private decisions, habits, etc., of people; an example in the realm of governmental activity is (or was, 200 years ago) the continuance of the persecution of Protestant “heretics” in France, Spain, etc.—that is, a tradition involving violent interference with the peaceful actions of individuals. Now a classical liberal may be an atheist, or he may be a Christian, or he may hold some other position on this question. If he is an atheist, it is likely that he will personally disapprove of the continuance of Christianity as the freely-accepted religion of individuals; his private opinion is likely to be that people would be more happier, more rational, or whatever, if they abandoned Christianity. If the classical liberal is a Christian, then presumably he will be pleased to see the continuance of the tradition of Christian belief. Thus, on this question concerning a tradition in the social sector, liberals may have various personal views of their own, but liberalism itself has no policy recommendations to make whatsoever; does not, in fact, concern itself with the matter. How does it stand with the second sort of traditional arrangement, that pertaining to the government sector?

Here, before we can answer this question, we are compelled to make yet another distinction (and, as regards the libertarian-conservative controversy, possibly the most important one to be made), there are some traditional governmental arrangements which involve interference with the basic rights of the individual—the persecution of Protestants in France under the Old Régime, for example. Others, however, pertain to the structure of the government itself, and may not, in the first instance, have anything to do with individual rights at all, as, for example, a traditional adherence to bicameralism. In the case of the first sort of traditional governmental arrangement, the classical liberal characteristically and by the logic of his principles recommends the abolition of the tradition, i.e., recommends that the government cease doing certain things. With regard to this category, then, the liberal may be said to “reject tradition”—that is, he holds that the traditionality of the arrangement can be no argument in its favor. It must be tested against certain standards, and, if it is found wanting, steps must be taken towards its elimination.

The case is different with the second sort of traditional governmental arrangement: that pertaining to the structure of government itself, as, for example, the extent and conditions of the franchise, and the form of the government (constitutional monarchy, republic, etc.). Such issues do not involve basic individual rights, in the sense that religious freedom and freedom from involuntary servitude are basic. Their function, from the liberal point of view, is to aid the preservation of the basic rights, and they may therefore vary to a great extent, depending on time and place. As Edouard Laboulaye, probably the outstanding French liberal of the later 19th century, put it:

Whatever may be the epoch or the country, whatever the form of government or the degree of civilization, every man has the need to exercise his physical and spiritual faculties, to think and to act. Russian or Englishman, Frenchman or Turk, every man is born to dispose of his person, his actions and his goods. . . . With political liberties it is not the same; they change according to the time and country. One does not always have need of the same guarantees [of liberty]; as the form of attack varies, so does that of the defense.17

TO SUMMARIZE OUR rather rough classification of the senses of tradition (which is offered, with some trepidation, as a tentative basis for discussion):

I. tradition in scientific and philosophical discourse: the traditional acceptance of a truth claim may be adduced as evidence in support of the claim;
II. tradition in the functioning of society: the traditionality of a societal arrangement may be adduced as good reason for continuing the arrangement. This may apply either to:
- A. the social (non-governmental) sector, i.e., to traditions not involving government action, or to
- B. the governmental sector. Under B we have
  - I. political traditions violating basic individual rights, and,
  - II. political traditions (primarily those having to do with the structure of government itself) which do not violate basic individual rights.

In considering the differences between libertarianism and fusionism (as well as conservation), I would locate the significant and challenging disagreement regarding tradition primarily under II A. That is, while classical liberalism as a rule restricts itself to attempting to secure individual rights by operating on the government sector (and in this endeavor may well make use of traditional political elements), fusionist and conservative writers claim that certain traditions within the social sector must often be regarded as necessary conditions for the preservation of liberty and ought to be actively cultivated and promoted by all supporters of a free society. This is especially true, in their view, of religion. The idea is suggested at times by Meyer and Evans, and is put succinctly by Stephen Tonsor, in his interesting essay, “The Conservative Search for Identity,” in the present volume:

Religion is important to the democratic state not only because it preserves the fabric of society but also because it acts as the most important power to check the aggressive, centralizing, and totalitarian tendencies of the modern state, without a strong religion, which remains outside and independent of the power of the state, civil liberty is unthinkable. The power of the state is, in part, balanced and neutralized by the power of the church. The freedom of the individual is most certain in that realm which neither church nor state can successfully occupy and dominate. [p. 150]

This represents, of course, a historical and sociological hypothesis concerning an alleged casual connection between religion and freedom. If true, it could indicate that certain policy recommendations might be in order which libertarianism would tend to frown on (Tonsor himself maintains that tax money ought to be used to support church schools). In any case, it is a thesis which ought, I think, to be elaborated and critically and dispassionately examined, for it appears to me to be the most interesting and the most plasible of the fusionist claims.

This is only one of a number of important issues raised by fusionism which it is impossible to go into here. The claim that libertarians believe in the “innate goodness of man,” and err in ignoring the reality of “original sin” (whatever might be meant by these two notions) is also one that should sometime be submitted to critical examination, if only because it is so often advanced. More important would probably be a discussion of the principle aim of fusionism: in place of our support of a free society for all our various ends (or simply for itself), to substitute support of it because it is a means to one particular end, namely “virtue,” in whatever sense Meyer and Evans attach to the term.

Finally, it should be evident that none of what has been said here is to be taken as indicating hostility or rancor towards the authors whose writings have been discussed. In contrast to a number of conservatives, Meyer’s and Evans’ real concern for freedom is obvious. And that their intentions are good ones is evidenced by the statement of Meyer:

. . . the development of a common conservative doctrine, comprehending both emphases [traditionalist and libertarian]—cannot be achieved in a surface manner by blinking differences or blurring intellectual distinctions with grandiose phraseology. [p. 18, ital. added]

Certainly, a true and important judgment. It is unfortunate that, in the heat of battle it is too often forgotten.

H. L. Mencken and The American Hydra

WILLIAM H. NOLTE*

H. L. MENCKEN’S major complaint with the nation at large may be reduced to one often repeated lament: America is without an intellectual aristocracy that would give it direction and order. This absence of an intellectual class free to inquire and interpret, to act on its own prerogatives, to function autonomously without regard for the opinions of the mass also explains, in large part anyway, Mencken’s disapproval of democracy. Like many another artist—Melville comes at once to mind—Mencken was unable to reconcile democracy with order. And it was order that prevented man from running amuck in chaos. Moreover, it was order, or form, that gave universality to art. The modern democratic state resembles nothing more than the drunken beggar on horseback, riding off in all directions. Though it is impossible, and not even wholly desirable, to prevent that beggar from doing as he jolly well wishes, Mencken did attempt rather successfully to slow him down and make him sit up in the saddle as if he were sober. This service was performed by attacking one of the most virulent outgrowths of democracy: Puritanism. (I should explain that I use the word democracy—which by now is perhaps without any specific meaning—as the antonym of aristocracy.)

Mencken performed, broadly speaking, two major services for the national letters: he led the attack on Puritanism, which had crippled the artist in America for generations; and he gave great aid to a large number of the best writers America has produced.

Down to the 1920’s in America, the “master” of the arts had things pretty much his way. He was powerful, he was confident, he was popular. He was the proud descendant of Puritanism in its narrowest sense. He still violently objected to anything that smacked of heresy; especially did he object to the modern-day Maypole dancers. He represented the “moral viewpoint,” the “closed vision,” the “narrow outlook”—call it what you will. This ogre haunting the dreams of honest writers had over the years taken many shapes in the daylight world of actuality. In the first two decades of this century, the Puritanical restrictions were upheld in art by a class of men—the academicians; and by a philosophy—the so-called New Humanism. Moreover, the stronghold of Puritanism in the social realm had moved from New England to the South. Mencken’s criticism of the professor, of the New Humanist, and of the South is of one cloth.

THE FOUNDING FATHERS of New England came to America to establish one particular type of freedom—the freedom to enforce their own narrow beliefs without any deviations.1 Indeed, one of the first things the college student learns in a course on early American literature or history is that the concept of the Pilgrims which he acquired from high school must be radically revised. It is really an example of unlearning, which is the most powerful of all antidotes to the conditioned mental reflex, to superstition, and to prejudice. In Europe the Puritans had been persecuted largely because they were public nuisances, malcontents unable or unwilling to live and let live, similar in many ways to the God-crazy Anabaptists who were wont to run through the streets naked and howling to the invisible powers and principalities of the air. Only in a land uninhabited by civilized man could the Puritan hope to set up his peculiar kingdom of God. In America he had to contend only with the Indian, who was an easy prey for the sharp-trading, vindictive Puritan. In his book article for December, 1921, of the Smart Set, Mencken took to task those historians who credited the Puritans with the invention of most of the liberal institutions and ideas, such as they were, in America. (Mencken, incidentally, was in the forefront of those who, in the 1920’s, called for new and realistic appraisals of the American past.) “There is not a single right,” Mencken wrote, “of the citizen of today, from free speech to equal suffrage and from religious freedom to trial by jury, that [the Puritans] did not oppose with all their ferocious might.” Actually, as Mencken pointed out then, and as we now know for certain, it was the non-Puritan immigrants to New England who were responsible for overthrowing the Puritan and setting up free institutions in the country.

To [the anti-Puritans] we owe everything of worth that has ever come out of New England. They converted the sour gathering of hell-crazy deacons into the town-meeting; they converted the old pens for torturing little children into public-schools; they set up free speech, free assemblage, a free press, trial by jury, equality before the law, religious freedom, and manhood suffrage; they separated church and state; they broke down the old theology and substituted the rationalism that was to come to flower in New England’s Golden Age. The Puritans were absolutely against all of these things. They no more gave them to the Republic than they gave it Franklin or Emerson. What they gave it was something quite different: the shivering dread of the free individual that is still the curse of American civilization. They gave it canned patriotism, comstockery, intolerance of political heresy, Prohibition. They gave it Wilsonism, Burlesonism, and the Ku Klux Klan.2

THE MAIN IDEAS of Mencken on Puritanism may be found in “Puritanism as a Literary Force,” one of the major documents of American criticism. Aside from its value as a penetrating analysis of the debilitating effects of Puritanism on art, “Puritanism as a Literary Force” served as a spark to ignite the most bitterly waged critical war of the century. At the time of its publication (in A Book of Prefaces, 1917; the other three essays in the volume are on Conrad, Dreiser and Huneker) Mencken was at the height of his powers as a literary critic. He was 37 years old and not yet disenchanted with the profession of book criticism (it should always be remembered that Mencken’s best literary criticism was done before the twenties, the decade over which he reigned as America’s leading man-of-letters). Moreover, A Book of Prefaces was his first important volume of criticism (not counting the book on Nietzsche, which was primarily exposition). And it stands today, along with various essays in the Prejudices volumes as the best writing he was ever to do in that particular area. Indeed, within ten years after it appeared, Mencken had given up criticism of belles lettres except for occasional pieces and comments that continued to see print until his death in 1956.

Inevitably, the reigning America-First critics fell on A Book of Prefaces like angels on the Antichrist. Never before in America had a writer directed such a blast against an American sacred cow. And to publish such an un-American essay just when the nation was making the world safe for democracy was more than any right-thinking man could stand. The reception of Prefaces—which had a small sale in 1917, but enjoyed a wide audience when reissued in 1924—is a good gauge of Mencken’s popularity. Only a few rebels could stomach him during the war (Sgt. Edmund Wilson, for example, read and re-read the book, which convinced him more than any other single work that literary criticism was a worth-while profession); after the return of the conquering armies, a whole generation accepted the Menckenian theses as gospel.

In the opening pages of “Puritanism as a Literary Force,” Mencken made it clear that Puritanism as a theological doctrine was pretty much exploded: “That primitive demonology still survives in the barbaric doctrines of the Methodists and Baptists, particularly in the South; but it has been ameliorated, even there, by a growing sense of the divine grace, and so the old God of Plymouth Rock, as practically conceived, is now scarcely worse than the average jail warden or Italian padrone.”3 But as an ethical concept, Puritanism lived on in all its fury. To Mencken, the American still described all value judgments, even those of aesthetics, in terms of right and wrong. It was only natural that such “moral obsession” should strongly color our literature. In the histories of all other nations there have been periods of what Mencken called “moral innocence—periods in which a naif joie de vivre has broken through all concepts of duty and responsibility, and the wonder and glory of the universe have been hymned with unashamed zest.” But in America no such breathing spells have lightened the almost intolerable burdens of man. For proof of this continued moralism, one need only to glance at the critical articles in the newspapers and literary weeklies—that is, at those of the period before and during World War I. “A novel or a play is judged among us, not by its dignity or conception, its artistic honesty, its perfection of workmanship, but almost entirely by its orthodoxy of doctrine, its platitudinousness, its usefulness as a moral tract. A digest of the reviews of a book of Ibsen’s Hedda Gabler would make astounding reading for a Continental European.”4 Had not most of the critics of Dreiser’s The Titan indignantly denounced the morals of Frank Cowperwood, the novel’s central character?

That [Cowperwood] was superbly imagined and magnificently depicted, that he stood out from the book in all the flashing vigour of life, that his creation was an artistic achievement of a very high and difficult order—these facts seem to have made no impression upon the reviewers whatever. They were Puritans writing for Puritans, and all they could see in Cowperwood was an anti-Puritan, and in his creator another. It will remain for Europeans, I daresay, to discover the true stature of The Titan, as it remained for Europeans to discover the true stature of Sister Carrie.5

When one encounters an American humorist of high rank, Mencken said, he finds further evidence of the Puritan mind. Aside from Ambrose Bierce, actually a “wit” and not at all well known, there had been few scurvy fellows of the Fielding-Sterne-Smollett variety. Mencken believed that our great humorists “have had to take protective colouration, whether willingly or unwillingly, from the prevailing ethical foliage, and so one finds them levelling their darts, not at the stupidities of the Puritan majority, but at the evidences of lessening stupidity in the anti-Puritan minority.” Rather than do battle against, they have done battle for, Philistinism—and Philistinism is just another name for Puritanism. Mencken might easily have found an exception to his generalization here in the person of George Ade, whose “fables” could hardly be said to support Philistinism. But then Ade was a singular case; besides, he did not offer much as a witness for the prosecution—and Mencken was intent on prosecuting. Mencken saw his favorite American artist, Mark Twain, as a perfect example of the American whose nationality hung about his neck like a millstone.

One ploughs through The Innocents Abroad and through parts of A Tramp Abroad with incredulous amazement. Is such coarse and ignorant clowning to be accepted as humour, as great humour, as the best humour that the most humourous of peoples has pro-produced? Is it really the mark of a smart fellow to lift a peasant’s cackle over Lohengrin? Is Titian’s chromo of Moses in the bullrushes seriously to be regarded as the noblest picture in Europe? Is there nothing in Latin Christianity, after all, save petty grafting, monastic scandals and the worship of the knuckles and shin-bones of dubious saints? May not a civilized man, disbelieving in it, still find himself profoundly moved by its dazzling history, the lingering remnants of its old magnificence, the charm of its gorgeous and melancholy loveliness? In the presence of all beauty of man’s creation—in brief, of what we roughly call art, whatever its form—the voice of Mark Twain was the voice of the Philistine.6

In tracing the development of Puritanism in America, Mencken found two main streams of influence. First, there was the force from without, that is, the influence of the original Puritans, who brought to the New World a philosophy of the utmost clarity, positiveness and inclusiveness. Actually, Mencken had no great objections to the original Puritans’ philosophy, or at least so he says in a letter to Gamaliel Bradford, dated October 24, 1924; what he objected to was that philosophy’s “perversion, by Methodists, Rotarians and other such vermin.”7 Although the original Puritan often possessed a good education (he was not infrequently a Cambridge or Oxford graduate) and even “a certain austere culture,” he was almost sure to be hostile to beauty in all its forms. Nature, it must be remembered, fell with Adam, and like Adam is at the mercy of wanton demons. To copy nature is to copy corruption. There is little, if any, of the dionysian spirit, the Ja-sager philosophy, in the preachments of Puritan divines.

The eighteenth century saw the passing of the Puritans as a powerful body of law makers. Deism undermined the old theology; epistemological studies replaced metaphysics. The proper study of mankind was thought to be man. Skepticism was all but universal among the learned of Europe, and Americans still imported their ideas wholesale from the mother countries. Both political and theological ideas were imported from France, where Voltaire, Diderot, D’Alembert and the other Encyclopedists were giving an entirely new direction to world philosophy. Mencken noted that even in New England, the last stronghold of the old Puritanism, this European influence was felt: “there was a gradual letting down of Calvinism to the softness of Unitarianism, and that change was presently to flower in the vague temporizing of Transcendentalism.” This decline of Puritanism proper was not, however, an unalloyed blessing. For as Puritanism “declined in virulence and took deceptive new forms, there was a compensating growth of its brother, Philistinism, and by the first quarter of the nineteenth century, the distrust of beauty, and of the joy that is its object, was as firmly established throughout the land as it had ever been in New England.” With the passing of the Adamses and the Jeffersons, Mencken remarked, the nation was quickly turned over to the tradesmen and the peasants. There was, he maintained, but one major difference between American peasants and those of other nations: the American peasant was listened to; he possessed power. (There is, of course no such thing as a peasant in America today—only social unfortunates.) With the election of Andrew Jackson, a man with whom Mencken violently disagreed and yet admired as a strong individual, Philistinism became the national philosophy. Jackson did what had not been done before: “he carried the mob’s distrust of good taste even into the field of conduct; he was the first to put the rewards of conformity above the dictates of common decency; he founded a whole hierarchy of Philistine messiahs, the roaring of which still belabours the ear.” The chief concern of Americans ever since the official triumph of mobocracy has been politics; what’s more, politics tended to absorb the rancorous certainty of the fading religious ideas; the game of politics had turned itself into a holy war.

The custom of connecting purely political doctrines with pietistic concepts of an inflammable nature, then firmly set up by skillful persuaders of the mob, has never quite died out in the United States. There has not been a presidential contest since Jackson’s day without its Armageddons, its marching of Christian soldiers, its crosses of gold, its crowns of thorns. The most successful American politicians, beginning with anti-slavery agitators, have been those most adept at twisting the ancient gauds and shibboleths of Puritanism to partisan uses. Every campaign that we have seen for eighty years has been, on each side, a pursuit of bugaboos, a denunciation of heresies, a snouting up of immoralities.8

THE PERVASIVENESS of Puritan ethics (not, remember, theology) in America placed all purely aesthetic concerns in limbo. Mencken stated that with the exception of Whitman there was hardly a major writer who used the materials of his own age for subject matter. He used Algernon Tassin’s The Magazine in America (1916) to support his thesis that the literature of the ante-bellum period was almost completely divorced from life as men were then living it. Only in such “crude politico-puritan tracts” as Uncle Tom’s Cabin was there any attempt made to interpret, or even to represent, the culture of the time. (The fact that Mrs. Stowe was chastised in her own day for her “realistic” novels only supports Mencken’s contention.) Later, the culture found historians, and in at least one work—Huckleberry Finn—it was depicted with the highest art, but Twain’s magnum opus was a rare exception. The nineteenth-century novelists did not even sentimentalize the here and now in the manner of Mencken’s contemporaries. The best minds of that period were engaged either in business or politics. The few competent men of the period who were artists almost without exception forsook the present for the non-political, non-social realms of Arcadia or El Dorado. It is evident that much of the material in “Puritanism as a Literary Force” was condensed in the later essay on “The National Letters” (in Prejudices: Second Series, 1920). For example:

Fenimore Cooper filled his romances, not with the people about him, but with the Indians beyond the sky-line, and made them half-fabulous to boot. Irving told fairy tales about the forgotten Knickerbockers; Hawthorne turned backward to the Puritans of Plymouth Rock; Longfellow to the Acadians and the prehistoric Indians; Emerson took flight from earth altogether; even Poe sought refuge in a land of fantasy. It was only the frank second-raters—e.g., Whittier and Lowell—who ventured to turn to the life around them, and the banality of the result is a sufficient indication of the crudeness of the current taste, and the mean position assigned to the art of letters. This was pre-eminently the era of the moral tale, the Sunday-school book.9

IN THE SEVENTIES and eighties, with the appearance of such men as Henry James, Howells, and Twain (Mencken also listed Bret Harte even though he never considered him a good second-rate artist), a better day seemed to be dawning. These writers gave promise of turning away from the past to the teeming and colorful life that lay about them. The promise, however, was not fulfilled.

Mark Twain, after The Gilded Age, slipped back into romanticism tempered by Philistinism, and was presently in the era before the Civil War, and finally in the Middle Ages, and even beyond. Harte, a brilliant technician, had displayed his whole stock when he had displayed his technique: his stories were not even superficially true to the life they presumed to depict; one searched them in vain for an interpretation of it; they were simply idle tales. As for Howells and James, both quickly showed timorousness and reticence which are the distinguishing marks of the Puritan even in his most intellectual incarnations. The American scene that they depicted with such meticulous care was chiefly peopled with marionettes.10

To return to “Puritanism as a Literary Force.” The force from within was, in essence, a force of “conditioning.” The American tended to view all the workings of God, fate, man and nature as exemplifications of a moral order or structure or pattern, just as his forebears had done. The rebel, that is, the writer who made an earnest attempt to depict his surroundings realistically rather than romantically or sentimentally, had had little influence on the main stream of American literature. Such writers as Hamlin Garland began as realists but soon saw a rosy light and devoted themselves to safer enterprises; Garland ended his days by composing books on spiritualism, or, as Mencken put it, by “chasing spooks.” (Garland, as well as Howells, refused to sign the Dreiser Protest, a petition objecting to the ban placed on The “Genius.” In the early days of the twentieth century, there had been a few realists—for example, Ambrose Bierce, Frank Norris, Stephen Crane, David Graham Phillips, Henry Fuller, Upton Sinclair—but their rebellion was apparently ineffectual.

The normal, the typical American book of today is as fully a remouthing of old husks as the normal book of Griswold’s day. The whole atmosphere of our literature, in William James’ phrase, is “mawkish and dishwatery.” Books are still judged among us, not by their form and organization as works of art, their accuracy and vividness as representations of life, their validity and perspicacity as interpretations of it, but by their conformity to the national prejudices, their accordance with set standards of niceness and propriety. The thing irrevocably demanded is a “sane” book; the ideal is a “clean,” an “inspiring,” a “glad” book.11

In addition to the impulse from within, or the internal resistance, there was a pervasive Puritan influence from without. No examination of the history and present condition of American letters, Mencken believed, could have any value at all unless it took into account the influence and operation of this external Puritan force. Supported by the almost incredibly large body of American laws, this power resided in the inherited traits of Puritanism, which were evident in the “conviction of the pervasiveness of sin, of the supreme importance of moral correctness, of the need of savage and inquisitorial laws.” The history of the nation, Mencken wrote, might be outlined by the awakenings and re-awakenings of moral earnestness. The spiritual eagerness that was the basis for the original Puritan’s moral obsession had not always retained its white heat, but the fires of moral endeavor had never gone out in America. Mencken remarked that the theocracy of the New England colonies had scarcely been replaced by the libertarianism of a godless Crown when there came the Great Awakening of 1734, “with its orgies of homiletics and its restoration of talmudism to the first place among polite sciences.” The book-bumping of Jonathan Edwards’ “Sinners in the Hands of an Angry God” stands as a testament to that holy resurrection of Almighty Sin.

During the Revolution, politics superceded theology as the national pastime, and there was a brief period of relative quiet. But no sooner had the Republic emerged from the throes of adolescence than “a missionary army took to the field again, and before long the Asbury revival was paling that of Whitefield, Wesley and Jonathan Edwards, not only in its hortatory violence but also in the length of its lists of slain.” From Bishop Asbury down to the present day, that is, to World War I, the country was rocked periodically by furious attacks on the devil. On the one hand, the holy Putsch

took a purely theological form with a hundred new and fantastic creeds as its fruits; on the other hand, it crystallized into the hysterical temperance movement of the 30’s and 40’s, which penetrated to the very floor of Congress and put “dry” laws upon the statute-books of ten States; and on the third hand, as it were, it established a prudery in speech and thought from which we are yet but half delivered. Such ancient and innocent words as “bitch” and “bastard” disappeared from the American language; Bartlett tells us, indeed, in his “Dictionary of Americanisms,” that even “bull” was softened to “male cow.” This was the Golden Age of euphemism, as it was of euphuism; the worst inventions of the English mid-Victorians were adopted and improved. The word “woman” became a term of opprobrium, verging close upon downright libel; legs became the inimitable “limbs”; the stomach began to run from the “bosom” to the pelvic arch; pantaloons faded into “unmentionables”; the newspapers spun their parts of speech into such gossamer webs as “a statutory offense,” “a house of questionable repute” and “an interesting condition.” And meanwhile the Good Templars and Sons of Temperance swarmed in the land like a plague of celestial locusts. There was not a hamlet without its uniformed phalanx, its affecting exhibit of reformed drunkards.12

Mencken argued that the Civil War itself was primarily a result of the agitations of anti-slavery preachers. He admitted that to many historians the anti-slavery feeling had economic origins, but he insisted, probably correctly, that the war was largely the result of ecstatically moral pleas. In “The Calamity at Appomattox” (in the American Mercury for September, 1930), Mencken attributed the Negro’s bondage in the South today to the fact that the war was won by the North. Before the surrender at Appomattox, there was little hatred of the Negro in the South. More importantly, the Negro would most certainly have been made a freedman before the end of the nineteenth century anyway, and without the resulting hostility between the races. The Union victory, as Mencken stated, simply deprived the best southerners of any say in national and regional affairs, and placed the lower orders—the scalawags, carpet-baggers, freed slaves, and poor white trash—in the saddle. The Negro, of course, was soon disfranchised again, but the power remained in the hands of incompetent whites.

The Puritan of the days between the Revolution and the Civil War was, according to Mencken, different from the Un-Puritan and neo-Puritan of the post-bellum period. The distinguishing mark of the Puritanism of this middle period, at least after it had attained to the stature of a national philosophy, was its appeal to the individual conscience, its exclusive concern with the elect, its strong flavor of self-accusing. Certainly the Abolitionists were less concerned with punishing slave-owners than they were with ridding themselves of “their sneaking sense of responsibility, the fear that they themselves were flouting the fire by letting slavery go on.” The Abolitionist was willing, in most cases, to compensate the slave-owner for his property. The difference between the new Puritanism with its astoundingly ferocious and uncompromising vice crusading and the Puritanism of the 1840’s was of great degree, if not of kind: “In brief, a difference between renunciation and denunciation, asceticism and Mohammedanism, the hair shirt and the flaming sword.” After going through a number of stages and fads, neo-Puritanism found its apex in comstockery. And in comstockery there was a frank harking back to the primitive spirit.

The original Puritan of the bleak New England coast was not content to flay his own wayward carcass: full satisfaction did not sit upon him until he had jailed a Quaker. That is to say, the sinner who excited his highest zeal and passion was not so much himself as his neighbor; to borrow a term from psychopathology, he was less the masochist than the sadist. And it is that very peculiarity which sets off his descendant of today from the ameliorated Puritan of the era between the Revolution and the Civil War. The new Puritanism is not ascetic, but militant. Its aim is not to lift up saints but to knock down sinners. Its supreme manifestation is the vice crusade, an armed pursuit of helpless outcasts by the whole military and naval forces of the Republic. Its supreme hero is Comstock Himself, with his pious boast that the sinners he jailed during his astounding career, if gathered into one penitential party, would have filled a train of sixty-one coaches, allowing sixty to the coach.13

In accounting for the wholesale ethical transvaluation that came after the Civil War, Mencken pointed to the Golden Calf; in short, Puritanism became bellicose and tyrannical when it became rich. History shows that a wealthy people are never prone to soul-searching. The solvent citizen is less likely to find fault with himself than with those about him; what’s more, he has more time and energy to devote to the enterprise of examining the happy rascal across the street. The Puritan of America was, generally speaking, spiritually humble down to the Civil War because he was poor; he subscribed to a Sklavenmoral. But after the Civil War prosperity replaced poverty; and from prosperity came a new morality, to wit, the Herrenmoral. Great fortunes were made during the conflict, and even greater wealth followed during the years of the robber barons. Nor was this new prosperity limited to a few capitalists only; the common laborer and the farmer were better off than ever before.

The first effect of prosperity was, as always, a universal cockiness, a delight in all things American, the giddy feeling that success has no limits. “The American became a sort of braggart playboy of the western world, enormously sure of himself and ludicrously contemptuous of all other men.” Mencken observed that religion, which is always dependent upon its popularity for survival, naturally began to lose its inward direction and take on the qualities of a business enterprise. The revivals of the 1870’s were similar to those of a half century before except that the converts at the later date were more interested in serving than in repenting. The American Puritan was less interested in saving his own soul than in passing salvation on to others, especially to those reluctant individuals who hung back and resisted the power of divine grace. It became apparent to the more forward-looking ecclesiastics that the rescue of the unsaved could be converted into a big business. All that was needed was organization. Out of this unabashed industrialization of religion came a new force, one that still exerts great influence on American society. “Piety was cunningly disguised as basketball, billiards and squash; the sinner was lured to grace with Turkish baths, lectures on foreign travel, and free instructions in stenography, rhetoric and double-entry bookkeeping.” Religion lost its old contemplative nature and became an enterprise for the public relations man, the bookkeeper and the extrovert. In short, religion was “modernized.” What was true at the time Mencken wrote this essay is, as a pragmatist would say, even more true in the 1960’s.

After giving the necessary background material, Mencken then devoted a lengthy section of his essay to the workings and accomplishments of Anthony Comstock and his associates. The various laws, state and national, which Comstock got passed offer the contemporary reader a sorry spectacle of the vice crusader’s power. As a public figure, Old Anthony was as well known as P. T. Barnum or John L. Sullivan. He had disciples in every large city who were just as eager for blood as he was. Since there were few American writers brash enough to challenge the inquisitors, Comstock and company were forced to turn to foreign works. Rabelais and the Decameron were naturally banned (they are still being banned in various American cities today); Zola, Balzac and Daudet were driven under the counters; Hardy’s Jude the Obscure and Harold Frederic’s The Damnation of Theron Ware were also among the victims. These are but leading examples of the purge. In fact, Comstock got 2,682 convictions out of 3,646 prosecutions and is credited by his official biographer with having destroyed 50 tons of books, 28,682 pounds of stereotype plates, 16,900 photographic negatives, and 3,984,063 photographs. That such a Herod’s record could have been compiled was largely a result of the postal laws, which, of course, Comstock was responsible for in the first place. The very vagueness of the law was of great convenience to the prosecutors. That a novel like George du Maurier’s Trilby, which I read in search of damning evidence, could have been widely condemned as “lewd,” “obscene,” and “lascivious” is next to incredible. It merely provides further proof that Swift’s Gulliver’s Travels is a good deal closer to reality than it is to fantasy.

It is held in the leading cases that anything is obscene which may excite “impure thoughts” in “the minds . . . of persons that are susceptible to impure thoughts,”14 or which “tends to deprave the minds” of any who, because they are “young and inexperienced,” are “open to such influences”15 —in brief, that anything is obscene that is not fit to be handed to a child just learning to read, or that may imaginably stimulate to lubricity of the most foul-minded. It is held further that words that are perfectly innocent in themselves—“words, abstractly considered, [that] may be free from vulgarism”—may yet be assumed, by a friendly jury, to be likely to “arouse a libidinous passion . . . in the mind of a modest woman.” (I quote exactly! The court failed to define “modest woman.”)16 Yet further, it is held that any book is obscene “which is unbecoming, immodest. . . .”17 Obviously, this last decision throws open the door to endless imbecilities, for its definition merely begs the question, and so makes a reasonable solution ten times harder. It is in such mazes that the Comstocks safely lurk. Almost any printed allusion to sex may be argued against as unbecoming in a moral republic, and once it is unbecoming it is also obscene.18

Mencken then cited numerous cases to show that the defendant was helpless in proving his innocence against any of a whole host of charges of immorality. Besides, Dr. Johnson was obviously right when he stated that no man would want to go on trial, even if possessed of absolute proof of his innocence. Obviously, neither author nor publisher ever knew what might pass the watchful eyes of the self-appointed smut-hounds and defenders of decency. Competent work invariably was banned while the frankly prurient and vulgar went unmolested. Mencken was never in favor of denying anything or anyone the freedom of speech, but he was indignantly amazed that the serious work of an Auguste Forel or a Havelock Ellis should be barred from the mails while the countless volumes of “sex hygiene” by filthy-minded clergymen and “smutty old maids” were circulated by the million and without challenge.

Frank Harris is deprived of a publisher for his Oscar Wilde: His Life and Confession” by threats of immediate prosecution; the newspapers meanwhile dedicate thousands of columns to the filthy amusements of Harry Thaw. George Moore’s Memoirs of My Dead Life are bowdlerized, James Lane Allen’s A Summer in Arcady is barred from the libraries, and a book by D. H. Lawrence is forbidden publication altogether; at the same time half a dozen cheap magazines devoted to sensational sex stories attain to hundreds of thousands of circulation. A serious book by David Graham Phillips, published serially in a popular monthly, is raided the moment it appears between covers; a trashy piece of nastiness by Elinor Glyn goes unmolested. Worse, books are sold for months and even years without protest, and then suddenly attacked: Dreiser’s The “Genius,” Kreymborg’s Edna and Forel’s The Sexual Questtion are examples. Still worse, what is held to be unobjectionable in one state is forbidden in another as contra bonos mores.19 Altogether, there is madness, and no method in it. The livelihoods and good names of hard-striving and decent men are at the mercy of the whims of a horde of fanatics and mountebanks, and they have no way of securing themselves against attack, and no redress for their loss when it comes.20

It was no wonder, Mencken wrote, that American literature down to World War I was primarily remarkable for its artificiality. He compared our fiction to eighteenth-century poetry; it was just as conventional and artificial, just as far removed from reality. In America, and probably only here, could an obvious piece of reporting like Upton Sinclair’s The Jungle create a sensation, or Dreiser’s Jennie Gerhardt evoke such astonishment and rage. As an editor of the Smart Set Mencken was fully aware of the dangers lying in the path of any publisher who attempted to give his readers quality writing. Since his magazine was frankly addressed to a sophisticated minority, sold for a relatively high price, and contained no pictures or other baits for the childish, Mencken assumed that “its readers are not sex-curious and itching adolescents, just as my colleague of the Atlantic Monthly may assume reasonably that his readers are not Italian immigrants.” Nevertheless, he was constantly forced to keep the comstocks in mind while reading a manuscript sent him by an author. He warned his contributors, though he never admitted this publicly, to be sure to keep clothes on their female characters at all times. Mencken was a man marked by the Puritan elements in the country, and he knew it. But he certainly possessed nothing resembling a martyr complex. As he wrote Dreiser in 1921, the joy of living in America “does not lie in playing chopping-block for the sanctified, but in outraging them and getting away with it. To this enterprise I address myself. Some day they may fetch me, but it will be a hard sweat.”

ALTHOUGH OUR LITERATURE was policed and picketed by a small band of comstocks, the fact remains that the American people offered little resistance; they were perfectly willing to be led by their noses like so many cattle. The American was “school-mastered out of gusto, out of joy, out of innocence.” He could in no way understand William Blake’s belief that “the lust of the goat is also to the glory of God.” When the comstocks examined The “Genius” to determine its harmful effect on immature female readers, they tacitly admitted, Mencken wrote, that “to be curious is to be lewd; to know is to yield to fornication.” The medieval doctrine that woman is depraved was, and, for that matter, still is widely accepted in our own century. The right-thinking man must do all he can to save her from her innate depravity. “The ‘locks of chastity’ rust in the Cluny Museum: in place of them we have comstockery. . . .” Though censorship is nothing like so powerful today as it was forty years ago, and we must credit Mencken with having done much to deprive the censors of their power, there are still numerous evidences of the puritanical perversion. The most cursory look at television, for example, will provide the spectator with enough sadism to last a lifetime, but it is still impossible to portray a normal sex relationship in any way even resembling a realistic manner. It is also ironic that Roman Catholic censors, particularly the Legion of Decency, have taken up where the more nearly pure descendants of New England Puritanism left off. Once the object of Puritan prejudice, the Catholic Church now wields the whip in many areas of the country. Boston, now a Catholic stronghold, remains the laughing-stock of the nation. What hungry young novelist doesn’t nightly pray that his latest book will receive the free advertising that goes with being banned in Boston?

NEW BOOKS AND ARTICLES

THE FOLLOWING IS A SELECT LIST OF BOOKS AND ARTICLES WHICH, IN THE OPINION OF THE EDITORS, MAY BE OF INTEREST TO OUR READERS.

Milton Friedman and Anna J. Schwartz, A Monetary History of the United States, 1867-1960. Princeton, Princeton University Press, 1963. $15.00. A mammoth study of the history of United States monetary policies and the money supply since the Civil War.
H. L. A. Hart, Law, Liberty, and Morality. Stanford, Stanford University Press, 1963. $3.00. A largely successful attack on the Conservative position espoused by Sir Patrick Devlin (and in the nineteenth century by James Fitzjames Stephen) that “society” has the right to enforce “its” moral code against dissenters, even in the absence of direct injury to innocent parties.
Two books of note have appeared recently by W. H. Hutt, distinguished economist of the University of Capetown, South Africa, and a consistent opponent of the policies of apartheid: The Economics of the Colour Bar. London, Andre Deutsch, 1964. 5 shillings, paper. His theme is that “the restrictionist policies arising from the racialist doctrines of the Nationalist Government and the efforts of the higher-paid workers to protect privileged positions in the labour market would not have been possible had the economy been run on competitive lines. But this has not happened because investors and managements have been intimidated by politicians wielding the planning powers of the state.” Available from the publisher at 105 Great Russell St., London, W.C.1, England. And: Keynesianism—Retrospect and Prospect. Chicago, Regnery, 1963. $7.50. A major contribution to the body of anti-Keynesian literature. Professor Hutt supplies an impressive amount of factual and theoretical economic evidence for his arguments.
George J. Stigler, The Intellectual and the Market Place and Other Essays. New York, The Free Press of Glencoe, 1963. $2.50. A collection of highly readable essays on economic and political topics. The title essay should be familiar to NIR readers.
Ernest van den Haag, Passion and Social Constraint. New York, Stein and Day, 1963. $6.95. A new work by one of the foremost contemporary conservative sociologists, discussing the problems raised by the fact of limitation from the viewpoint of the fields of anthropology, sociology, and psychoanalysis.
Alfred Avins, “Freedom of Choice in Personal Service Occupations: 13th Amendment Limitations on Antidiscrimination Legislation,” Cornell Law Quarterly, Winter 1964, pp. 228-256. An historical survey of antidiscrimination legislation and its human limitations, tending slightly to the polemical; but well reasoned and well documented.
William Letwin, “What’s Wrong with Planning: The Case of India,” Fortune, June 1963, pp. 118 ff. An illustrative discussion of the problems India now faces because of central planning and public ownership.
Jesse W. Markham, “Anti-Trust Trends and New Constraints,” Harvard Business Review, May-June 1963, pp. 84-92. A detached survey of recent antitrust developments which look less like attempts to foster competition and more and more like protectionism.

AS A MAGAZINE . . .

reaches maturity in the publication field it is often blessed with the growth of a loyal and dedicated following. This hard core of zealots will stick with a magazine through thick and thin, hard times and good. NIR is fortunate in having a larger percentage of these “hard core” readers than the average periodical. We would like to present here a sampling of the encouraging praise and constructive criticism we have received over the past few months:

“Your recent issue on the Federal Regulatory Bureaus was well written and very informative. I just wanted to let you know that we have passed a resolution abolishing the ICC in our neighborhood.”

“The publishing policies of your periodical have brought a new meaning to the word ‘quarterly’ in American magazine circles.”

“As one of the more responsible extremist publications, NIR is, I feel, a valuable contributor to the Great Conversation and to the world’s store of Great Ideas. Mankind needs NIR; mankind needs the vigor which NIR lends to dialogues between peoples. The fact that sometimes you do go just a bit far out sometimes—like selling the lighthouses, really!—does not in any way diminish your service or, as Sir Servapali Chutney was fond of putting it, your ‘contribution,’ to humanity.”

“Leafing through back issues of NIR, I came across Mr. Hurt’s ‘Sin and the Criminal Law.’ It is good to see a member of the responsible right who believes that moderation in pursuit of vice is no virtue.”

Society lives and acts only in individuals . . . Everyone carries a part of society on his shoulders; no one is relieved of his share of responsibility by others. And no one can find a safe way for himself if society is sweeping toward destruction. Therefore everyone, in his own interests, must thrust himself vigorously into the intellectual battle. None can stand aside with unconcern; the interests of everyone hang on the result. Whether he chooses or not, every man is drawn into the great historical struggle, the decisive battle (between freedom and slavery) into which our epoch has plunged us.

—Ludwig Von Mises

The Intercollegiate Society of Individualists, a non-partisan, non-profit educational organization, deals with ideas. ISI places primary emphasis on the distribution of literature encompassing such academic disciplines as economics, sociology, history, moral philosophy, and political science. If you are a student or teacher, you are invited to add your name to the ISI mailing list. There is no charge, and you may remove your name at any time. For additional information, or to add your name to the list, write the nearest ISI office.

VOLUME 3, NUMBER 4, SPRING 1965

THE REVIVAL OF TRADITIONAL LIBERALISM

YALE BROZEN

CONSTITUTIONAL MYTHOLOGY

GORDON TULLOCK

ECONOMIC LIBERALISM IN POST-WAR GERMANY

WILLIAM S. STOKES

PROPERTY LAW AND RACIAL DISCRIMINATION

ROBERT M. SCHUCHMAN

A JOURNAL OF CLASSICAL LIBERAL THOUGHT

Spring 1965

50 cents

Vol. 3, No. 4

EDITORIAL STAFF

Editor-in-Chief • Ralph Raico

Associate Editors • J. Michael Cobb • Robert M. Hurt

John P. McCarthy • James M. S. Powell

Robert Schuettinger

Editorial Assistants • Douglas Adie • Burton Gray

Edwin Harwood • Edward Kimak • James A. Rock

William Lamb • Julian Svedosh

EDITORIAL ADVISORS

Yale Brozen • Milton Friedman • George J. Stigler

University of Chicago

F. A. Hayek	•	Benjamin Rogge
University of Freiburg		Wabash College

COLLEGE AND UNIVERSITY REPRESENTATIVES

UNIVERSITY OF ARIZONA
Stephen Sala

BALL STATE COLLEGE
Geoffrey Scott

BELOIT COLLEGE
Alfred Regnery

BROWN UNIVERSITY
Grant F. Shipley

BRYN MAWR COLLEGE
Sheila Bunker

COLUMBIA UNIVERSITY
A. Thadeus Perry

UNIVERSITY OF DELAWARE
John M. Tobin

DE PAUW UNIVERSITY
David Prosser

UNIVERSITY OF DETROIT
George McDonnell

DUKE UNIVERSITY
Robert B. Fisher

EARLHAM COLLEGE
David Lindsey

GROVE CITY COLLEGE
A. Bruce Gillander

HARVARD UNIVERSITY
David Friedman

UNIVERSITY OF IDAHO
Robert D. Brown

INDIANA UNIVERSITY (Bloomington)
Karl K. Pringle

INDIANA UNIVERSITY (Indianapolis)
Janis Starcs

UNIVERSITY OF KANSAS
Larry F. Glaser

UNIVERSITY OF KENTUCKY
James G. Otto

KNOX COLLEGE
Kip Pencheff

LOUISIANA STATE UNIVERSITY
William Thomas Tete

LOYOLA UNIVERSITY (Chicago)
William Ford

MANHATTAN COLLEGE
Stephen J. Kerins

MIAMI UNIVERSITY (Ohio)
Thomas R. Ireland

NEW YORK UNIVERSITY
Jeffrey Jay Weiser

OCCIDENTAL COLLEGE
Goetz Wolff

OREGON STATE UNIVERSITY
John Charles Neeley

PACIFIC COAST UNIVERSITY
Ernest Talaganis

PROVIDENCE COLLEGE
Raymond LaJeunesse

PURDUE UNIVERSITY
Ted Sigward

QUINCY COLLEGE
Michael J. Hill

REGIS COLLEGE
Herbert C. Liebman, III

SOUTHERN ILL. UNIVERSITY
Thomas Cannon

STANFORD UNIVERSITY
Rossman Wm. Smith, Jr.

SYRACUSE UNIVERSITY
Irwin H. Rosenthal

TEXAS A & M UNIVERSITY
Steve Thurman

TUFTS UNIVERSITY
William G. Nowlin, Jr.

VANDERBILT UNIVERSITY
Peter Chamberlain

WABASH COLLEGE
Ronald Rettig

UNIVERSITY OF WASHINGTON
R. P. Johnson

UNIVERSITY OF WISCONSIN
Theodore Cormaney

WILLIAMS COLLEGE
Thomas Ehrich

UNIVERSITY OF WISCONSIN (Milwaukee)
Wells H. Perkins

YALE UNIVERSITY
Bill Dennis

•

UNIVERSITY OF FRANKFURT
Werner Krebs

OXFORD UNIVERSITY
Robert Schuettinger

The Revival of Traditional Liberalism
	3	YALE BROZEN
Constitutional Mythology
	13	GORDON TULLOCK
Prospects for South Africa
	18	DENIS V. COWEN
Note on the Election
	28	BENJAMIN A. ROGGE
Economic Liberalism in Post-War Germany
	30	WILLIAM S. STOKES
Property Law and Racial Discrimination
	39	ROBERT M. SCHUCHMAN
New Books and Articles
	49

NEW INDIVIDUALIST REVIEW is published quarterly by New Individualist Review, Inc., at Ida Noyes Hall, University of Chicago, Chicago, Illinois 60637.

Opinions expressed in signed articles do not necessarily represent the views of the editors. Editorial, advertising, and subscription correspondence and manuscripts should be sent to NEW INDIVIDUALIST REVIEW, Ida Noyes Hall, University of Chicago, Chicago, Illinois 60637. All manuscripts become the property of NEW INDIVIDUALIST REVIEW.

Subscription rates: $2.00 per year (students $1.00). Two years at $3.75 (students $1.75).

Copyright 1965 by New Individualist Review, Inc., Chicago, Illinois. All rights reserved. Republication of less than 200 words may be made without specific permission of the publisher, provided NEW INDIVIDUALIST REVIEW is duly credited and two copies of the publication in which such material appears are forwarded to NEW INDIVIDUALIST REVIEW.

IN MEMORIAM Robert M. Hurt

The editors and staff of New Individualist Review join with his family and his friends in mourning the tragic death of Robert M. Hurt. His contributions to this magazine covered the entire scope of its operations and reflected the wide range of his own abilities. The signed articles which he wrote demonstrated both his capacity for research and analysis, and his deep concern with the extension of freedom; his sense of humor was manifested in some of our advertisements; and more than any other person he is responsible for placing New Individualist Review on a firm financial base.

When he left the University of Chicago to join the faculty of Princeton University, we believed that he was launched on a career that promised high achievements; he had so much ability.

He was a friend to each of us, and a stimulating companion whose zest for his own special fields of the law and economics did not dampen his interest in matters as diverse as the philosophy of logical positivism and the domestic political situation in the new nations of Africa, and whose good temper and good humor kept animosity out of even the most heated discussion. He was a keen thinker, a thorough scholar and a dear friend; we will remember him with esteem, affection, and sorrow as we grieve for his untimely death.

*The Revival of Traditional Liberalism**

YALE BROZEN*

A druggist’s assistant who, after listening to the description of pains which he mistakes for those of colic, but which are really caused by inflammation of the caecum, prescribes a sharp purgative and kills the patient, is found guilty of manslaughter. He is not allowed to excuse himself on the ground that he did not intend harm but hoped for good . . . .

We measure the responsibilities of legislators for mischiefs they may do, in a much more lenient fashion. In most cases, so far from thinking of them as deserving punishment for causing disasters by laws ignorantly enacted, we scarcely think of them as deserving reprobation. It is held that common experience should have taught the druggist’s assistant, untrained as he is, not to interfere; but it is not held that common experience should have taught the legislator not to interfere till he has trained himself. Though multitudinous facts are before him in the recorded legislation of our own country and of other countries, which should impress on him the immense evils caused by wrong treatment, he is not condemned for disregarding these warnings against rash meddling . . . .

—Herbert Spencer1

A DISCUSSION OF the revival of liberalism should begin with a description of what it is—particularly since our latter-day reactionaries have stolen the name. They have stolen the label for a good reason: it stands for the opposite of what they propose. These reactionaries are attempting to disguise their desire to apply the interventionist policies of seventeenth-century mercantilism to twentieth-century society.

Literally, liberalism meant to liberalize or liberate—to make free—to permit men to do or say whatever they wished. Of course, there was a constraint implied in this. No man could do anything which affected the liberty of others. To permit some men to intervene in the lives of others would be the opposite of making men free. This would make some men unfree—subject some men to tyranny by others. The classical liberal was and is opposed to all forms of tyranny.

This constraint on the individual, to preclude what has been called license, implies equality in the right to be free. Opposition to all tyranny is equalitarian. Unfortunately, some economists imbued with the equalitarianism in liberty implied by opposition to tyranny came to confuse liberalism with another position—equalitarianism in the distribution of income. They began to scrutinize every public policy for its effects on the distribution of income.

“A growing number of economists, indeed, implicitly argue that no other injustice equals in enormity that of large differences in income.”2 From this position began the rationalization of intervention to make those lower on the income scale better off by methods other than removing the barriers to self-improvement or to charitable actions by private persons. At first it was argued that the state should be used to transfer income from those higher on the income scale. From this it was an easy step to forcing people low on the income scale (and others) to do what the interventionist felt would be good for them, even though these people did not wish to do these things. The new tyranny was born—or rather the old tyranny was re-born.

Historically, the rise of liberalism was in opposition to tyranny from two sources. One source was the tyranny of private persons or associations such as monopolies and guilds (usually through a grant of power from the sovereign). Monopolies and guilds could and did prevent men from consuming things which otherwise would have been available. They could and did prevent men from seeking and obtaining jobs otherwise available to them. While tyranny in this form may seem to be a small thing, it was odious not only because some men had the power to dictate economic conditions to others, but also because such dictation could be used to bend men to accept the political dictates of those possessing the power.

The second source of tyranny was the state—those who manned the political apparatus. The possessors of political power could grant or withhold favors and could thus bend men to their will. Not only could they withold favors, but they also could take punitive action, even going so far as to take the lives of those who would not obey them. As one writer has said, “Government is in the last resort the employment of armed men, of policemen, gendarmes, soldiers, prison guards, and hangmen. The essential feature of government is the enforcement of its decrees by beating, killing and imprisonment.”3 The spectacle of some men forcing others to crawl, or possessing such power, was shocking to those bred in traditions of liberty.

NEVERTHELESS, DESPITE a long tradition in the United States of constant battle to reduce the amount of power by some private agents—such as businesses—we have permitted much coercion by other private agents, notably trade unions; at the same time we have allowed enlarged powers to be assumed by the state, opening up new possibilities for unwanted coercion. Trade unions in the city of Chicago, for example, prevent anyone from becoming a plumber or a plastering contractor unless his father or his uncle was a member of the plumbers’ union or the Plasterers’ Institute. Political dissenters find building inspectors invading their homes and hauling them into court for presumed violations of the building code. Those in the restaurant and grocery business who disagree with the men in power find their establishments do not measure up to the standards of health inspectors. Property assessments have a suspiciously uniform tendency to rise for those property owners who do not go along, while they tend to decrease for those who “play ball.” The Federal administration’s Bureau of Internal Revenue has harassed newspapermen and steel executives who do not agree with the Administration’s views.

The power of the government has grown as it has, in part, because native Americans have had little experience with tyrannical governments. There has been a naive trust in the good will, the beneficence, and even the omnipotence of government. Many Americans have felt that whenever the government does something, it must be in their interest and that their government will not take advantage of them.4 The modern “liberal,” the reactionary in disguise, suspects every businessman of an intent to bilk him. On the other hand, he trusts every bureaucrat and trade union officer to look out for his interest. I, on the contrary, suspect everybody of looking out for his own interests, be he businessman, bureaucrat, union officer, consumer, Congressman, workman, or the ordinary citizen. I am somewhat willing to trust a businessman to serve me well since any attempt to bilk his customers will mean that he will lose business to competitors. This, at least, means that it is to his self-interest to serve me well.

The average politician I trust a great deal less since he is quite willing to serve my interest badly if the support he gains at my expense is crucial to his election. Besides, he can confuse the issue by offering a few items in his platform which have some appeal to offset the other things which are distasteful. In every election, I have had to choose either the grab bag of proposals offered by one party, 95 per cent of which are distasteful, or the grab bag offered by the other party, 97 per cent of which are distasteful. That is hardly a choice. At least, when I buy a General Motors automobile, I do not have to buy GM gasoline, GM schools for my children, GM garbage collection service, GM old age annuities, or GM anything else. In a free market, I can separate my decisions on what automobile I buy from my choice of what gasoline I consume, which service station I patronize, which mechanic I go to for repairs, or which company insures my car or administers the funds I save for my retirement income.

In a political market, choosing the party which offers the best school program means I may also have to take a poor street repair program, inferior garbage collection services, and indifferent operation of the water works. For that reason, I prefer that the government do less rather than more. I can make more of each of my decisions separately from other decisions. Thomas Jefferson expressed this very pointedly when he said, “That government is best which governs least.”

I think another reason that Americans have allowed their government to take on an uncontrollably large number of functions is because we have improved so many things and solved so many problems (by private action, in most instances) that we think all problems can be solved—and we are an impatient people who believe it is better to take care of our problems today instead of next year.

As one of my colleagues has put the matter:

Our faith in the power of the state is a matter of desire rather than demonstration. When the state undertakes to achieve a goal, and fails, we cannot bring ourselves to abandon the goal, nor do we seek alternative means of achieving it, for who is more powerful than a sovereign state? We demand, then, increased efforts of the state, tacitly assuming that where there is a will, there is a governmental way.

Yet we know very well that the sovereign state is not omnipotent. The inability of the state to perform certain economic tasks could be documented from some notorious failures. Our cotton program, for example, was intended to enrich poor cotton farmers, increase the efficiency of production, foster foreign markets, and stabilize domestic consumption. It is an open question whether twenty-eight years of our farm program have done as much for poor cotton farmers as the trucking industry and mail-order houses.5

Now that we have lived so long with government intervention in our economy, a few professional economists have begun to examine the results of that intervention. Some findings from these examinations are beginning to appear and affect, at least, the attitudes of an increasing number of scholars. If any resurgence of liberalism is occurring, this is the primary place where it is apparent to me. However, I am extremely poorly informed on the attitudes of undertakers, bricklayers, Republicans and Democrats.

Four years ago, an opinion study showed that 73 per cent of the college economists of this country were definitely in favor of additional government intervention in the economy. Sixteen per cent were opposed. The rest expressed no leaning either way.6 An opinion study done last year showed that the group opposed to additional government intervention had grown to 35 per cent and the group still in favor of more intervention had shrunk to about 50 per cent.7

WHAT ARE THE studies leading to this change in attitude? First, I should mention a group of studies examining the effects of regulation of the transportation industries by the Interstate Commerce Commission, Civil Aeronautics Board, and the Federal Maritime Commission. One study done a few years ago points to several features of transportation regulation which produce undesirable results.8 Let me cite one instance of the way in which railroad-trucking regulation has worked. The railroads petitioned the ICC for permission to reduce freight rates on cigarettes in the early 1950’s. They had lost most of the cigarette transportation business to trucks since the rail rate on cigarettes was higher than the truck rate. The railroads examined their cost of transporting cigarettes and found they could make money at much lower rates than they had been charging. After extended hearings, during which the reduction was not allowed to go into effect, the ICC finally decided that the railroads had an inherent advantage over trucks in moving cigarettes and, therefore, should have the business. In their wisdom, the ICC commissioners decided to divert business to the railroads, not by acceding to the railroad request for permission to reduce rates, but by raising truck rates.9

If this were an isolated and exceptional act of the Commission, it would produce little reaction. However, a recent study of the behavior of the Commission in its founding days, 1888-1890, indicates that raising rates is an old Commission tradition.10 Before the ICC was formed by the Interstate Commerce Act of 1887, railroads between Chicago and New York entered into agreements with each other to maintain prices at specified levels on Chicago-New York shipments of corn and grain. These agreements were seldom successful. Railroads secretly sold transportation services at less than the agreed-upon price, and frequently at much less. In practice, the cartel of railroads rarely found it possible to maintain the agreed-upon price.

After 1887, the ICC was empowered to prevent the setting of long distance rates below the level of short haul rates. Since cutting the long haul rate between Chicago and New York made it necessary to also cut short haul rates, the net result was that railroads stopped competing for long haul business by cutting rates. After 1888, Chicago-New York rates were not kept low by competition between railroads. Rates tended to stay at the levels railroads had attempted to set by agreement before they had the ICC to run their cartel for them.

We also suffered the usual consequences of cartel operation. High prices induced over-investment in the railroad industry, draining capital from other uses where we needed tools and equipment, creating over-capacity (from which the railroads are still suffering) and causing under-utilization of the available plant because the business available was restricted by high prices. Incidentally, the ICC is now asking for additional legislation from Congress to strengthen its power to operate as a cartel authority.

Still another study in the transportation industry, this time the effect of regulation of the price of transportation of processed foods, has produced shocking findings. This category of transportation was formerly exempt from regulation under the general exemption of agricultural commodities. The exemption was narrowed by the 1958 Transportation Act to exclude processed agricultural commodities. After this phase of transportation came under regulation by the ICC, transportation charges promptly jumped by 20 per cent.11

IT IS NOT ONLY the ICC which behaves this way in the transportation industry. The CAB withdrew certification from North American Airlines and drove them out of business after they pioneered air coach transportation. North American carried passengers for 30 per cent lower fares than other airlines, despite the subsidies received by these other airlines, with never an accident during the time they carried 6,000,000 passengers.12 An intra-state airline (which is exempt from CAB regulation because it flies intra-state) flying today in California from Los Angeles to San Francisco, carries passengers at lower fares than those which prevail on any regulated airline segment of comparable length and traffic density (and makes just as much money on its investment).13

The Federal Maritime Board forces all subsidized ship lines to join the ocean conferences which cartelize ocean transportation. Conference-set rates are higher than those charged by ship owners and operators who are not members of the conference. Not only does the Board force higher rates on American shippers, but also follows policies in its construction and operating subsidy program which result in the inefficient design and operation of American ships. American ships carry bigger crews and are more expensive to operate than foreign ships. Since American seamen’s wage rates are higher than those of foreign seamen, you would expect labor-saving features to be built into American ships that would not be found on foreign ships. Instead, the reverse is true. Because the operating subsidy provided by the federal government is based on the excess of the American crew costs over foreign crew costs, no subsidized ship operator finds it to any advantage to pay the extra cost of labor-saving equipment.14

So much for some of the material developed in a few of the recent studies of the transportation industry. These data are not the sort to make economists feel that the heavy hand of government is beneficent or produces results preferable to those that will occur in a free market.

RECENT STUDIES of public utility regulation do not make this bit of intervention any more appealing, although this is the one area that more economists have agreed upon as being a proper sphere for government intervention than any other. A study of the Federal Power Commission regulation of the natural gas industry has shown that regulated field prices of natural gas sold to interstate pipe line companies are about seven per cent higher than they would be in the absence of regulation of field prices.15

A study of the regulation of prices for electric energy reaches the conclusion “that it is very doubtful whether consumers have been saved as much by public regulation of the electrical utilities as they have had to pay, directly and indirectly, for regulation.”16 Another study shows the prices for electricity and gas are higher in those states where commissions severely restrict the rate of return on investment (to less than 6½ per cent) than in those which do not. In those jurisdictions where electric companies are allowed to earn more than 6½ per cent return, the average price for 500 KWH to a residential consumer was $9.82. In those jurisdictions where the rate of return was restricted to less than 6½ per cent, the average cost to a residential consumer for 500 KWH per month was $10.14.

A study of gas utilities reached a similar finding. The companies allowed to earn more than 6½ per cent charged $8.62 for 100 therms of residential gas service. Those restricted to less than 6½ per cent charged $10.58 (about 20 per cent more).

Here is a paradox that non-economists find hard to believe, much less understand. How can a company make more by charging less? The answer lies in the fact that those companies allowed to earn more than 6½ per cent can attract the capital which can be used to install cost-saving equipment; allowing them to earn more thus benefits the consumer. Profits in the American economy are, by and large, not made at the expense of the consumer. They are made by doing a better job in production or design of product—by benefitting consumers.

Some sacred cows of those economists who believed most profits are made by monopolizing were slaughtered by this study. Even more, it casts grave doubts on the usefulness of government intervention in the one area which most economists have agreed required regulation to prevent monopolistic exploitation of consumers.

CONCERNING AGRICULTURE, farmers themselves seem to be reaching the conclusion that they are worse off with government intervention than without it—or at least wheat farmers seem to have reached this conclusion, judging by the latest wheat referendum. Farmers have found they received higher prices for wheat with government intervention, but they also endure higher costs as a consequence of acreage restrictions on their operations. The Agricultural Program conveys little benefit to most farmers at great expense to every taxpayer. Since farmers have begun to discover this, economists, too, are gradually becoming aware of it.

Some recent studies by agricultural economists have demonstrated that many of the programs supposedly designed to benefit the farmers have been hurting them. It seems obvious that subsidizing the use of fertilizer and machinery would help farmers by reducing their costs of production. What has seemed to be so obviously true turns out to be completely false. The increased output with subsidies has driven prices down with the result that farmers are not any better off. Those who are tenants and obtain their return from their labor are worse off because labor values are decreased by the substitution of fertilizer and equipment.17 Those who are owner-operators are worse off not only because the return earned by their labor is reduced, but also because that earned by their land is decreased. Fertilizer and equipment are substitutes for land and subsidizing their use reduces the return to land compared to what it otherwise would be.18

The farm programs of the federal government have not only failed to benefit the farmer, but they have also been mutually off-setting with their only net result being a higher tax burden and a waste of resources. The spectacle of multi-billion dollar reclamation programs putting more land under cultivation occurring side-by-side with a soil bank program taking land out of cultivation does not appear to be a more rational management of the economy than that resulting from the operation of free markets. Yet, the main argument of interventionists has been that the government can plan rationally. They have argued that the free market is at best non-rational but usually irrational. In the face of this evidence, it appears that government planning is far more irrational than even the severest critics of free markets could ever impute to the operation of the market.

ANOTHER GREAT disillusionment being suffered by the interventionists is the result of the examination of the programs presumably designed to benefit the poor and the disadvantaged. Urban renewal programs were launched with a great fanfare of propaganda concerning what they would do to improve the housing of the poor. The net result of our urban renewal programs has been increased cost of housing for the poor and the destruction of the livelihoods of hundreds of small businessmen. A typical urban renewal project is one in Chicago which had these results: 4,632 dwellings used by the lowest income groups in Chicago were destroyed. These were replaced by 2,040 apartments now used by middle income families.

In effect, 4,600 low income families were forced out of their homes and told to go find other housing. With the reduced supply of low-rent units, they typically had to pay higher rents in bidding for the remaining supply. A Chicago Housing Authority study of relocation in 1952-1954 showed that the average rent paid by the dispossessed before destruction of their homes was $37 per month. The average rent this group paid after being dispossessed went to $67 per month.19 It hardly helps the poor to take their homes away and force them to rent more costly residences.

ANOTHER MEASURE which interventionists thought would help the poor was the passage of minimum wage legislation. They believed Sidney and Beatrice Webb, who argued that “higgling in the market” would reduce all wages to bare subsistence (or below). They believed that employers have the power to exploit their employees. All that had to be done to improve the lot of the poor was to pass a law which would stop the exploitation of labor by employers.

As it turned out, it has become evident that employers were paying people what they were worth. As the minimum wage rate has been raised, more and more people have been laid off who were not worth the higher wage rate20 or have failed to find jobs which would otherwise have been available.21 They were not being exploited. They were receiving low wage rates because they were not worth any more. The people laid off have been forced to take jobs not covered by the minimum wage law where they received even lower wage rates than in the jobs they lost22 or they have remained unemployed. Unemployment among teenagers, for example, has gone from 595,000 in 1949, when the minimum wage rate was $0.40 per hour (and large unemployment might have been expected because this was a depression year), to 979,000 in 1963, a prosperous year, a year in which the minimum wage rate was raised to $1.25 per hour. To the extent that teenagers are inexperienced, unskilled workers, they are the ones who have been priced out of the market by the rise in the minimum wage. Even my interventionist friends are beginning to believe that all teenagers should be exempted from the application of minimum wage laws. Perhaps they will soon learn that we should simply repeal all minimum wage laws.

One more point should, I think, be made in connection with teen-age unemployment. A leading interventionist, Willard Wirtz, Secretary of Labor, believes that the solution to this problem lies in extending compulsory education by another two years. It is typical of the interventionists that they suggest simple answers based on the treatment of all people as if they were identical, homogeneous units. It is typical that they will force people to do what they regard as being good for these people, whether or not those whose freedom is being infringed regard this as desirable. As a matter of fact, the proportion of fourteen to seventeen-year olds in school has increased from 83.3 per cent fifteen years ago to 90.3 per cent today.23 This is in response to the fact that wage incomes of those with more years of schooling have gone up more than the wage incomes of those less educated.

Of those who are not in school, I would venture the guess that most of them were not finding the schooling available to them useful or rewarding. Forcing them to remain in school would be more likely to reduce the efficiency of the educational process than to improve the skills and make employable these unwilling drinkers at the fountain of knowledge.

FINALLY, LET ME turn to the most telling charge which has been made against free markets. The primary weapon of the socialists in their attack on free enterprise is the business cycle and the suffering caused by cyclical unemployment. If classical liberalism and the laissez faire for which it stands is vulnerable to attack, cyclical unemployment is the Achilles heel.

On this score, recent studies of the causes of the business cycle have disclosed that the primary cause is a change in the rate of growth of the stock of money.24 A turn in the rate of increase in the stock of money is followed by a turn in business and employment. A downturn in the rate of increase in the stock of money is followed by a downturn in employment about six months later, on the average.

Let me describe a few instances: Sharp rises in Federal Reserve rediscount rates and imposition of penalty rates on borrowers occurred in late 1919 and in the first half of 1920. This caused a decline in the stock of money. The reduction in the stock of money was followed by an increase in unemployment from 1.5 million in 1920 to over 5 million persons in 1921.25

The contraction of Federal Reserve credit in late 1928 and early 1929 caused a decrease in the stock of money which started unemployment rising.26 It jumped from 1.6 million in 1929 to over 5 million in 1930. The decline in money stock was intensified after September 1931 by deflationary actions on the part of the Federal Reserve when it panicked over the loss of gold. The result was a horrifying rise in unemployment to over 12 million persons in 1932.

The increases in required reserve ratio by the Federal Reserve Board in August 1936, and again in March 1937, and once again in May 1937, turned the stock of money down and sent unemployment soaring.27 From approximately 6 million in mid-1937, unemployment rose to over 11 million in 1938.

Turning to the post-war period, fluctuations in unemployment were considerably milder. Nevertheless, we find the same relationship holding between governmental manipulation of the stock of money and unemployment. The rise in the required reserve ratio in February, June and September of 1948, along with other Federal Reserve actions in the government bond market, began a decrease in the stock of money which sent unemployment in 1949 to almost 4 million from the 2 million level of 1948.28

Again, in 1952, the Federal Reserve Board reduced the rate of increase in the stock of money.29 At mid-1953, unemployment started to climb, doubling to about 3.5 million in 1954.

Still again, the Federal Reserve Board reduced the rate of increase in the money supply in 1956.30 Recession began in mid-1957 and the unemployment level rose to over 5 million in 1958.

In 1959, the Board began limiting the reserves available to banks and started a downturn in the stock of money.31 Recession began in early 1960 with unemployment again rising to over 5 million in 1961.

I have gone into some detail to show that the primary cause of cyclical unemployment does not lie in the unregulated behavior of free men in free markets. Those who have argued for greater governmental intervention on the grounds that a free enterprise system is unstable have chosen the wrong target for their criticism and the wrong means to cure the problem which worries them. The source of instability has been the government. The cure for instability is less government—not more. We would have less instability if the Federal Reserve Board stopped toying with the supply of money.

The study of the causes of cyclical unemployment has had a great unsettling effect on those economists who have thought we needed more government activity in the economy.32 Most have not yet accepted the conclusions of the study. They are resisting the recognition that they have been wrong and they have attempted to refute the study. The attempts to date have failed; the data are too overwhelming. Opinion in the profession is starting to swing, even though old ideas do not die easily, especially since repetition seems to be regarded as a more cogent proof of a proposition than any evidence a scholar can offer.33

I WOULD LIKE to close by quoting an observation of a nineteenth-century German immigrant to America:

Here in America you can see how slightly a people needs to be governed. . . . Here are governments, but no rulers—governors, but they are clerks. All the great educational establishments, the churches, the great means of transportation, etc., that are being organized here—almost all of these things owe their existence not to official authority, but to the spontaneous cooperation of private individuals. It is only here that you realize how superfluous governments are in many affairs in which, in Europe, they are considered entirely indispensable, and how the opportunity of doing something inspires a desire to do it.34

The most telling and effective recent evidence casting doubt on the beneficence of government and the presumed inability of free markets to serve the common good, and such social goals as improving the lot of the average man, is provided by the “miracle” of West Germany35 and Japan, and the failure of the socialized governments in the Iron Curtain countries. We might put this in the words of a recent cartoon showing two Russian officials chatting with each other. One is saying, “When all the world is Communist, where will we get wheat?”

Reprints of this article are available from New Individualist Review. Single copy, 15 cents. Ten or more copies, 10 cents each.

Constitutional Mythology

GORDON TULLOCK*

MYTHS, AS A PART of literature, can be entertaining and even illuminating, but if they are believed and acted upon they can be dangerous. There is such a dangerous myth which is widely believed at the present time by Americans. This myth, that “the Constitution is what the Supreme Court says it is,” has the logical corollary that no action taken by the Supreme Court can be unconstitutional, and hence that decisions by the court are binding upon the executive and legislative branches. If the myth were true, then it would mean that the system of checks and balances set up in our constitution is incomplete. The powers of the legislative and executive branches are subject to checks, but those of the judicial branch are uncontrolled. Given the care which the drafters of that historic document obviously took to give no person or organization absolute power, this would be most surprising. The founders of our nation did not feel that the form of government they established could safely be trusted to the good will or self-restraint of any individual or body of men. Instead they built into the structure of government a system in which possible abuse of power by any branch could be checked by the others. If the popular myth of supreme court supremacy were true, then we would have to conclude that the founding fathers distrusted the elected legislature and the elected president, but somehow felt no suspicion of the appointed supreme court. Surely this is absurd.

The power of the Supreme Court to declare acts of Congress unconstitutional was first established in the famous case of Marbury v. Madison by Chief Justice John Marshall. It is interesting that this case concerned a “plain violation” of the rights of five individuals. The Court refused to take action to redress the wrong to these individuals because it held that the act which gave them the right to sue before its bar was unconstitutional. In other words, it put enforcement of the Constitution above human rights. The reasoning upon which it did so is still the foundation of the doctrine of unconstitutionality.

Marshall’s argument, adhered to by all commentators from his day to the present, may be summed up by one paragraph from his decision:

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.1

Clearly this paragraph would make as much sense if the words “executive” or “judiciary” were substituted for “legislature.” The view that the executive or the judiciary is not bound by the Constitution would as much subvert the document as the view that the legislature is not so bound. It is true, of course, that we must not expect to find the court announcing that its own acts are unconstitutional, any more than we should expect to find the legislature passing laws which it explicitly states are unconstitutional. In each case the constitutional check is imposed from the outside, not by a given branch of the government judging its own acts.

The same principle will be found to fit the remainder of Marbury v. Madison. Marshall was a judicial officer engaged in deciding whether he would obey a law duly passed by the legislature and signed by the President. As such he confined his language to this particular problem and did not discuss the complementary problems which would arise if the court made an unconstitutional determination. Nevertheless, his language is still convincing if it is applied to the converse problem. As an illustration let us make the necessary changes for two and a half paragraphs:

If, then, the [executive] is to regard the constitution, and the constitution is superior to any [judicial decision], the constitution and not such [decision], must govern the case to which they both apply.

Those, then, who controvert the principle that the constitution is to be considered, [by the executive], as a paramount law, are reduced to the necessity of maintaining that the [President] must close [his] eyes on the constitution and see only the [decision].

This doctrine would subvert the very foundation of all written constitutions. It would declare that . . . [a decision] which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. . . .2

THE CONTRARY VIEW, that decisions of the Supreme Court are superior to the Constitution because “the Constitution is what the Supreme Court says it is” has never been claimed by the Court, although a Chief Justice once said this in a speech. The Court in its decisions always claims that it is bound by the Constitution. It does not purport to have the power to change the Constitution, only to interpret and to apply it. It is, of course, true that the Constitution is a rather short document and almost 175 years old for the most part. Interpretation under these circumstances may frequently involve interstitial law making; in fact this is the main function of the Supreme Court. There is, however, a great difference between deciding what the Constitution should mean in an area where it is unclear, and deliberately going against the plain words of the document. A decision, for example, that the Senate must be elected according to population would clearly and obviously be unconstitutional.

Marshall, however, had one more problem after he had demonstrated that the Constitution was superior to the acts of a branch of the government; he had to show that the Court was charged with a duty of enforcing the Constitution. His method was simple: he pointed out that the Constitution “direct[s] the judges to take an oath to support it.”

This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!3

Continuing this line of reasoning, the final full paragraph of his decision reads:

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.4

The argument, again, makes as much sense if the name of another department is substituted for that of the judiciary, as Marshall explicitly recognizes in the last full line of the above quotation. The same sentence of the Constitution which requires judges to support the Constitution also requires legislators, and other officials of the government, to swear to support it. Surely the oath is not more binding on one class of officials than on another. Let us repeat our experiment and substitute the executive for the judiciary in two more paragraphs of this fundamental decision:

Why does . . . [the President] swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.5

It is hard to see why this is less reasonable as a matter of constitutional law than the original version. If Chief Justice Marshall’s reasoning was correct for the judiciary, clearly it is also correct for the executive and the legislature.

My argument that the Congress and the Executive also have responsibilities for preserving and protecting the Constitution, although it would have been acceptable to such liberals as Justices Black and Douglas in the late thirties, will be vigorously contested today. The argument which may be offered against it is that there must be a single ultimate authority to decide constitutional problems, and that the Supreme Court is that authority. This can be divided into two parts, an argument that a single authority is logically necessary, and that the Constitution established such an authority in the Supreme Court. The first, or logical, argument, although superficially plausible, is fairly easily answered. It would, of course, be impossible to have two or three bodies each issuing authoritative interpretations of the Constitution if these interpretations were equally binding upon the citizen and likely to conflict. We are not, however, faced with a dilemma of choosing between two equally unattractive alternatives, the one involving multiple and possibly conflicting authorities with power to interpret the Constitution and the other involving a single arbitrary authority. If the founding fathers had seen the problem in this light they would surely not have set up an appointed body as the ultimate sovereign. They had just fought a war to free themselves from the control of appointive royal governors, and there is no reason to believe that they would have wished to place themselves and their descendants under the complete control of a body of men who were not removable no matter how bad their decisions.

THAT THE DRAFTERS of the Constitution did not even think in terms of giving ultimate power to the Court can be readily seen from the provision of the Constitution that “the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (Article III, Section 2.) The right of Congress to make exceptions in the jurisdiction of the Supreme Court, upheld by that Court in Ex Parte McCardle,6 a case involving civil rights, is clearly inconsistent with the view that the Court is the ultimate authority on constitutional questions.

If we return to Marbury v. Madison we see that Marshall did not claim any sort of ultimate authority for the Court. He simply said that where he thought the Constitution and a law conflicted he would carry out his oath of office and refuse to enforce the law. Until very recently this purely negative concept of the duty of the courts in constitutional questions was the dominant theory. The whole subject was traditionally described under the rubric of “judicial review,” and that review amounted to “little more than the negative power to disregard an unconstitutional enactment.”7 This negative view of the problem of protecting the Constitution raises none of the logical problems of conflicting determinations of constitutionality while at the same time avoiding the grant of ultimate power to one body. Normally any act of the government will require the co-operation of two or three of the main branches of government. If the act initiated by one branch is constitutional, the other branches are required to co-operate. If the initial act, on the other hand, is unconstitutional then the other branches are required by the oaths that their officers have taken to uphold the Constitution, to refuse to play any part in destroying the constitutional guarantees. This is the famous system of “checks and balances” which the drafters of the Constitution thought more desirable than dependence upon the good will and self-restraint of a small body of men.

In practice, of course, the bodies initiating action in our system have normally been the legislature and the executive. The courts, until very recently, seldom took the initiative. This meant that most cases in point have been resolved through refusal by the courts to carry out unconstitutional acts of the legislature rather than through refusal by the legislature or executive to enforce unconstitutional decisions of the courts. The only major effort at judicial legislation prior to the last two decades was the Dred Scott case, which was, quite rightly, not enforced by many state governments and reversed “on the slight, bare slopes of Gettysburg.” However, the recent outburst of judicial activism, which contrasts so strongly with the restraint characterizing previous courts even in the exercise of their negative power of judicial review, has raised an essentially new problem. Although the court still talks the language of simply applying the Constitution, it now acts as though it were a sort of superior legislature, not only imposing new laws, but also actually changing the Constitution by its decisions. No longer are constitutional decisions largely limited to refusals to enforce laws; they now frequently take the form of positive orders to other branches of the government and general rules for the control of citizens. Most of the civil rights cases and the reapportionment decisions are of this nature. Under these circumstances the right of the other branches to “check” the Supreme Court by refusing to apply its decisions when they violate the Constitution, a right long held in abeyance, becomes a matter of first importance.

Even if a supreme authority is not logically necessary in a system where each branch checks the others, it might still be true that the Constitution did establish such an ultimate arbiter in the form of the Supreme Court. This is, however, not the case, for there is nothing in the language of Article III of the Constitution which directly assigns to the Supreme Court any special duties with respect to the Constitution. If the Constitution conferred such special powers on the Court it did so implicitly, not explicitly; and it is hard to see where supreme power is implied for the Supreme Court. The judiciary is given “the judicial power of the United States.” If they had been written in 1964, these words might be construed as implying arbitrary power of the Court to interpret the Constitution in any way it sees fit. But this mythological view of judicial power was not held in 1789. Nor did Marshall claim such power. He made only the following claim:

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.8

The statement of the role of the Court is acceptable; but it is also a duty of the executive to decide which of two conflicting laws is to be enforced, especially if one of these laws is the Constitution itself.

THE PRESIDENT HOLDS a unique status in that the Constitution itself specifies the content of the oath he must take on assuming office. This oath concludes with the words “[I] will, to the best of my Ability, preserve, protect, and defend the Constitution of the United States.” The obligation devolving on the President is clearly more weighty than the mere duty “to support” the Constitution, the requirement specified for oaths to be subscribed to by all other officials including judges. In carrying out his duty to execute the laws, the President must, of course, make constitutional decisions. If he feels that a given law enacted by Congress is unconstitutional, he may veto it; and this is one of the reasons given by presidents for their vetoes. If an unconstitutional law is passed, he must follow his oath and refuse to enforce it. This, although it may appear novel, is simply a description of what the President has always done. The Attorney General frequently considers the constitutionality of various laws, and his rulings on such points are normally accepted by the executive arm.

A particularly interesting case has arisen in recent years with respect to defense appropriations. Congress quite frequently feels that some certain arm or weapon is more important than the executive believes. Congress has, therefore, tried to get the executive to spend more money than the Department of Defense requests for such arms, and it may put a specific provision in the appropriation act requiring that the money be spent. The intent of such provisions is to give the President the choice of vetoing the entire defense appropriation or spending the money. Since Truman, however, the executive branch has uniformly held that such provisions are unconstitutional and hence has refused to carry them out. No court was involved in this highly important decision on a constitutional issue, and clearly it does not involve any usurpation of judicial power by the executive.

The members of Congress are not only sworn to support the Constitution; they also tend to run heavily to lawyers, and hence are apt to be interested in constitutional questions. The question of whether a given measure is constitutional is frequently discussed on the floor of the two houses, and a consensus seems to prevail to the effect that unconstitutional acts should not be passed. If the President requests legislation which appears to the members of Congress to be unconstitutional, they should refuse to pass it. It is always a little hard to determine exactly why Congress has taken any given action since there will normally be many different arguments offered by different members; but it is reasonably clear that there have been occasions when legislation has been rejected or modified for constitutional reasons. Again this involves no usurpation of judicial prerogatives. Congress is unique in that the Constitution specifically limits its power to making “Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States. . . .” Surely Congressmen asked to appropriate money for a purpose they believe unconstitutional may refuse. The view that Congress shall refrain from considering constitutional questions is not only absurd but also directly contrary to the established practice of our government.

Thus it is not only the Constitution, but long established practice, which gives to each of the three branches of the government the right to check the others if their acts are unconstitutional. The Supreme Court has seldom experienced such checks, but this simply reflects the fact that it has seldom taken positive action which required checking. Surely the restraint of previous judges does not give the present Court positive powers to do anything it wishes.

The well thought out plan of checks and balances is completely negated by the myth of judicial supremacy. Only if we feel assured that the Justices are not like other men, that they neither make mistakes nor try to extend their authority, will we favor a system giving them ultimate power. Our officials are sworn to uphold the Constitution, not the Supreme Court. Where judicial decisions conflict with the Constitution they should keep their oath and uphold the Constitution. The statesmen who drew up our Constitution did not leave the protection of our liberties solely to nine fallible men.

Prospects for South Africa

DENIS V. COWEN*

THIS PAPER IS concerned with the political future of South Africa; that is to say, the future of some 16 million people occupying a territory approximately one-third the size of the United States, in one of the most richly endowed, beautiful and temperate zones of the earth’s surface. These 16 million people, my fellow South African citizens, are quite normal, friendly human beings, with ordinary human virtues and vices; but they are troubled and perplexed—and in varying degrees, humbled—by the tremendous challenge in human relations which faces them.

Most readers are aware of the broad outlines of the South African government’s racial policy—a policy which has excited so much attention and criticism in the international community that I need do little more than mention its essential features.

The South African government of the day—which has been in power for some sixteen years—does not believe that there is any future for any political system whereunder the various racial and cultural groups in South Africa would live together on terms of equality in one undivided country. Some 10.5 million blacks of the full blood, belonging to several tribes, speaking several Bantu languages, and at varying stages of development, cannot, they say, form a stable political structure on terms of equality with 3.5 million whites who wish to preserve their own cultural heritage. In addition, there are a half-million Asians and 1.5 million people of mixed blood, who live mainly in Cape Province. Whites, for their part, belong to two groups having much in common, but yet they each have their distinctive character; 60 per cent (nearly 2 million) are Afrikaans-speaking (i.e., their home language is Afrikaans, though most of them speak English as well), and Calvinist in religion. The remaining 40 per cent are primarily English-speaking and either more tolerantly Protestant (Episcopalian, Presbyterian, Congregationalist), or Roman Catholic in religion. About 5 per cent of the whites are Jewish. In short, not only is South Africa multi-racial; it is multi-cultural.

Given such a population structure, any attempt to share political power between whites and non-whites in a single political system is seen by most whites as involving self-immolation. “One man, one vote” in an undivided society, or anything which may lead to it, it is said, would involve cultural suicide and the eventual abandonment of a way of life. The blacks, it is argued, would “swamp” the whites; and what is more, as they are on the whole the “have-nots,” the character of the economy would soon be changed out of all recognition.

PLACING NO FAITH in constitutional guarantees and devices for minority protection—which have tended in many parts of Africa, and indeed in South Africa itself, to be mere scraps of paper—the overwhelming majority of South African whites accordingly feel that there is no health in any deliberate attempt to bring about a common political society between blacks and whites. In this predicament, the better hope, they argue, lies in the opposite direction—it should be, in short, in the direction of “separate development” of the main racial groups in their own homelands, leading to eventual independence or partition. At the same time, it is recognized that the various population groups—black and white—are now, and are likely to remain, very largely economically interdependent, whatever their political future may be. European nations, it is argued, are a similar case; and the Common Market is taking care of the resulting organizational problem. Accordingly, Dr. Verwoerd would like to see political separation, coupled at the same time with increasing economic integration, not only between the population groups of South Africa, but also between the various South African groups, on the one hand, and the African states north of the Limpopo, on the other.

That, in basic outline, is Dr. Verwoerd’s plan for separate development; stated, I hope, as fairly—though not as eloquently—as he would state it in equally short compass. Nothing would be easier than to show the defects in this policy. Indeed, even its ardent supporters recognize that, given the most favorable circumstances, the achievement of Dr. Verwoerd’s goals would take many years; would involve great sacrifices on the part of the whites, if the eventual partition is to be fair; and that in the intervening years there would be many injustices and anomalies.

Meanwhile, under the guidance of a very efficient administration (as efficient as any in South Africa’s history) the country continues to prosper—even to boom—economically. Industrially and economically speaking, South Africa is the continent’s giant, so far in advance of all the rest that economists do not even group South Africa along with other African territories. Much the same is true of education and the organization of the learned professions.

But beneath the fair surface there is tension; and the cost of implementing the government’s racial policy is very high in terms of human suffering. Having written several detailed indictments of the policy myself,1 it is not my intention to repeat the performance now. I have not changed my convictions about the basic immorality of racialism. Nor have I changed my opinion about the economic and political arrangements in South Africa. I still hope and believe that one day racial tension will no longer exist in a fully integrated South Africa. At this stage, however, I think that it is more profitable to call attention to certain facts which tend to be overlooked in discussions about South Africa; to say why I believe that my country has a very good chance of pulling through to the achievement of a satisfactory future; and to give some idea of what may, I think, be done to help.

One will appreciate that I speak without any brief from either the exponents or the critics of the South African government’s policies. The only brief I hold is for my country, and all its people.

Perhaps the best way to present my subject is to deal with it under three headings.

First, I would like to review briefly why it is that South Africa matters; why her political future deserves the very serious attention and encouragement of people beyond her borders.

Second, I would invite the reader to look at the South African scene from the point of view of what, in the past, has actually happened, and what, in the future, is likely to happen—as distinct from what some of us would have liked to have seen, or may yet wish to see take place. In other words, I suggest that it may be useful to focus attention on the actual facts, and try to predict probable events as distinct from speculating as to what ought to have happened and what ought yet to be. Under this heading, it is my intention to place before you—somewhat bluntly and flat-footedly—a series of axioms about South Africa.

Third, while concentrating on the “is,” and the “likely to be,” rather than the “ought to be,” it may be useful for me to suggest a few maxims concerning what may be done to help the situation in South Africa; and, in particular, what sort of action should be avoided, as being calculated to aggravate the present distemper rather than cure it, for I would not like it to be thought that we should have no interest in the sphere of the “ought-to-be.”

I have been induced to adopt this method of treatment (that is to say, the formulation of axioms and maxims), because a similar procedure was recently used in an article by Mr. Philip Mason, in the October 1964 issue of Foreign Affairs.2 With some of Mr. Mason’s conclusions I am in complete agreement. From others, however, I would differ sharply. Nevertheless, I would commend his article to you, suggesting my own remarks as required supplementary—dare I say, corrective—reading!

AT THE LEVEL of international power politics, South Africa’s significance is considerable, although she is not yet a member of the nuclear club. At summit conferences, and notably in the lobbies of the United Nations, a determined effort is being made by the Afro-Asian bloc to bring the South African government to its knees, as the saying goes. More particularly, Britain and the United States, South Africa’s two largest trading partners, are being told that continued trade with South Africa bolsters up and encourages a regime which the Afro-Asian nations regard as an affront to their dignity and self respect. Accordingly, they are asking for a full scale trade boycott, backed by a blockade. They say, quite bluntly, that Britain and the United States must choose between them and South Africa.

The threat must be taken seriously. Not only would it be difficult to overestimate the determination of the Afro-Asian bloc to bring about a change in the political structure of South Africa, but a suitable occasion for involving the older and greater powers may actually present itself in the near future. Thus, it is quite possible (some say it is very probable) that next year the International Court at the Hague may feel itself compelled to give judgment against South Africa in regard to her administration of the South West African Mandate, and to call upon Dr. Verwoerd’s government to abandon their racial policies in that territory. It is by no means clear that the judgment will, in fact, go against South Africa; but if it does, and if South Africa refuses to comply with the court’s order (which, again, is not a foregone conclusion), the United States and Britain—being pledged to uphold the rule of law—might find it difficult to resist a call for immediate sanctions; and this could be the flash point for a major international confrontation.

In any event, whichever way the South West African judgment goes, the Afro-Asian bloc—aided and abetted by Russia and China, who seek, I believe quite cynically, merely to make political capital out of their “support” in terms of the overall “cold war”—will continue to press for international intervention in South Africa. In a world bemused with argument and agitation about skin color, South Africa has become a convenient pawn in a power struggle towards ends which have nothing to do with color.

Already there have been several resolutions in the General Assembly which make it abundantly clear that the South West African issue is only one string in the bow of the Afro-Asian block. To change the metaphor, it is no more than a convenient casus belli. Whatever happens in the World Court on that issue, they insist that there are bigger issues at stake. South Africa, they assert, presents a unique case in the modern world of a denial of human rights on the score of color. It is said that the denial of rights is so flagrant and unique that the issue cannot possibly be regarded as a domestic one; that it is, accordingly, the legitimate business of the world community; and, more particularly, the duty of the world community to put an end to the outrage.

It may be observed that quite apart from this very high-tensioned legal and moral question, South Africa also matters at the international level because it is the world’s greatest producer of gold, uranium, and diamonds; one of the world’s greatest producers of wool, and possesses vast deposits of coal and iron ore and other minerals. In addition, its industrial growth in recent decades has been phenomenal. None of the larger powers can be indifferent to the question of who controls this wealth and for what purpose. Indeed, only a few months ago, Dr. Nkrumah of Ghana let one of his cats out of one of his bags when he declared that South Africa’s mineral wealth rightly belongs to black Africans, to be shared north of the Limpopo.3

At a very much deeper level, South Africa matters, too, because it presents the world’s race and color problems in microcosm. If these problems can be satisfactorily resolved in South Africa—and when I say “satisfactorily,” I mean at depth, with roots in sincere conviction, and not merely on the surface, or in unwilling token compliance with law—if these problems can be solved in South Africa, something enduring will have been wrought for the benefit of the world as a whole. In this regard, one will recall that the ratio between whites and non-whites in South Africa is approximately the same as the overall world ratio. Moreover, pressures and tensions are felt at the same points—that is to say, in regard to opportunities for education, jobs, housing, social and marriage relations, and in the churches.

THUS FAR I HAVE emphasized South Africa’s significance from the point of view of shared international concern. At the same time, it should be borne in mind that South African affairs may also—all too easily and all too unfortunately—become part of the domestic political power struggle in the U.S. and Great Britain. One may recall how Israel’s affairs long bedeviled local American politics. It should not be overlooked that today American Negroes not only hold something very like a balance of domestic political power, but they are tending increasingly to identify their own “freedom fight” with the “freedom fight” of their “black brothers in Africa.” (I am quoting Dr. Martin Luther King.) Indeed, on this whole aspect, Dr. King’s recent acceptance speech, when receiving the Nobel Peace Prize, is full of significance.4

And now having tried to put my subject into broad perspective, it is time for me to get down to the facts. I turn, therefore, to the enumeration of a few suggested axioms—or brief statements—concerning the essential and often overlooked facts of South African life.

First Axiom: My first axiom relates to the importance of cleaving to facts, as distinct from myths, illusions, and falsehoods about South Africa. Moreover, it is essential not only to cleave to facts, but to have regard to all the relevant facts, and not merely a selected group of facts; and, further, it is no less essential to weigh the facts dispassionately, and in full perspective. All this is emphatically not easy, because—and here is my first axiom—the South African situation, or racial predicament, is highly complex, shot through with deep emotion, conditioned by historical events, and, in the result, one may be sure that the surface appearance is almost invariably misleading.

Too many of the alleged friends of liberalism in the modern world approach the facts of the South African racial situation (and indeed other racial situations) with fixed inflexible ideas—sometimes based on sheer expediency; often with no rationally based or other deep-seated convictions; yet they cling to and brandish their ideas with a bigotry, self-righteousness, rancor, and prejudice, which is the very negation of true liberalism.

Beware of the professional “do gooders”; also beware of both the professional apologists for, and the professional critics of, South Africa. Both are likely to be wide of the mark.

To hear some of the white-washers of South Africa talk, one would imagine that the country has no problems at all. They fool nobody but themselves. On the other hand, to hear some of its traducers hold forth, one would imagine that the whites spend all their time killing and torturing the blacks.

Second Axiom: South Africa presents a situation to live with and improve, not a “problem” capable of instant solution.

Most of South Africa’s critics, well meaning though they may be, tend to overlook the magnitude and frightful difficulty of the human situation with which we are concerned. We speak of a “color problem” as if one could “solve” (that is to say, “remove”) it by an effort of the will and the intelligence. This is almost pathetically naive! There is no room here for easy generalizations in terms of “good guys and bad guys.” Nor is there any one magic formula which will dissolve the dark clouds. Certainly “one man—one vote” is not the answer—potent as that slogan may have been in some parts of Africa as a weapon in the early stages of the struggle for political power or emancipation, as distinct from the achievement of prosperity or true freedom. Dr. Nkrumah’s “Seek ye first the political Kingdom and all else will be added unto you” is not only sacriligious, but also over-simplistic.

We should be constantly on guard against over-simplifying the South African scene in terms of one issue. The black man’s effort to better himself in the modern world is often regarded as being simply and solely a color struggle—an effort to erase color-prejudice. This is an over-simplification. It is probably nearer the mark to suggest that what is taking place the world over is a vast revolution in which social, economic, and educational opportunities are being redistributed. The non-whites are, on the whole, the “have-nots” and color tends to be the external and visible sign of a pressure point in a social and economic process. The process itself, however, is not exclusively, and maybe not even basically, concerned with color.

Let me hasten to add that when I say that South Africa’s predicament may have to be “lived with” rather than “solved,” I am not being an apologist for much that is deplorable in present government policies. I say this because in the semi-lunacy which pervades some so-called “liberal” circles, if one does not support violent and bloody revolution in South Africa, one tends to be sworn at as being a “white supremacist.”

Nor am I a complacent believer in a policy of drift, against which Mr. Mason rightly inveighs. I do not believe that the mere passage of time necessarily brings about an improvement in human affairs. On the contrary, it is obvious that human situations may be lived with more or less successfully. And South Africa is not being all that successful!

Again, I do not advocate inaction. But on the other hand, I most emphatically repudiate the proposition that any action is better than no action. What we need is wise action—effective action—about which I shall have a little to say under the heading of Maxims. Wisdom is often the product of old fashioned and (among the shallow) discredited virtues, such as honesty and humility.

Third Axiom: Bad as apartheid, or separate development, are—and, let me repeat, I would not even try to defend any of the acts of stupidity and cruelty which have been perpetrated in its name—no one has yet come up with an alternative, which would be acceptable to both whites and non-whites. In fact, apartheid, like democracy, may be the worst form of government; but at the moment, as a matter of practical politics, there is nothing better in sight. Indeed, those who are serious-minded and sincere enough to get beyond vague generalities (such as, something must be done!), differ hopelessly as to what specific form of government should replace the present dispensation.5 The Afro-Asian bloc gets no further than the proposition: Leave the basic political structure to the decision of all the people of South Africa on a one man—one vote basis at a national convention. And this the whites will not soon or willingly accept. Any proposed change in South Africa must be acceptable to the whites as well as to the blacks if peace and inter-racial harmony are to result.

Fourth Axiom: No alternative blueprint for South Africa’s future has any chance of sticking unless the whites, as well as the non-whites, want it and willingly accept it.

In elaboration of this axiom, I would remind you that in no sense of the term are the 3.5 million whites in South Africa colonists. Many of them have been in the country as long as the white man has been in America. They have no other home. What is more, they have as good a title to some of the country as the Bantu-speaking settlers, who arrived at about the same time from the north. The whites are grimly determinded to stay on in South Africa, and I have no doubt that they will do so. For one thing, the dominant Afrikaans-speaking group have their own language, their own church, and their own mores, for the preservation of which they fought grimly over a period of many generations. They will fight to the death for them now. In this they would, I believe, be joined by the English-speaking whites.

Indeed, the population as a whole—white as well as non-white—are bent on working out their own destiny. What is more, despite talk to the contrary, I believe that many South African non-whites would resent outside interference as bitterly as the whites.

Fifth Axiom: There is no likelihood of a local black revolution ever developing or succeeding in South Africa, unless it is aided and abetted by the great powers abroad. Certainly there will be no Congo, no Algeria, no Zanzibar in South Africa unless the great powers, and in particular the United States and Great Britain, deliberately cripple South Africa’s economy and her government.

My reasons for this conclusion are:

(a) The South African whites are strong and determined. Rightly or wrongly, they believe that for them all is at stake. Above all, they believe in themselves. However perplexed they may be by their problems, they are tough and effective.

(b) The vital immediate decisions concerning South Africa are being taken and will, during the foreseeable future, continue to be taken in South Africa. In other words, the kind of withdrawal action which an external metropolitan power took in respect of, say, the Congo, Algeria, or Zanzibar, is simply “not on” in South Africa. Mr. Wilson, the present Prime Minister of England, may, perhaps, call the vital shots in Southern Rhodesia. I cannot see his doing so in South Africa.

(c) The more aggressive local opposition to apartheid has either been silenced or induced to acquiesce in the emerging patterns now being devised very largely by the whites. At the same time, I am bound to confess that I regard this silencing of black leadership as a seriously unhealthy factor. I am worried by the fact that so many of the articulate black political leaders are in jail, both because (quite apart from the humanities) I believe it necessary to encourage the fullest dialogue at all levels, and because a suppressed political view-point tends to become a political cancer. But at present I am concerned to state facts, not evaluate them.

(d) The spread of wealth in South Africa (uneven as it is between black and white) and, especially, the geography of South Africa are unfavorable to revolution. To begin with, economically, the whites and the non-whites are too heavily interdependent. Secondly, the overall economic conditions are not nearly bad enough for revolution. Compared with black states in the North, and with many other states in the world, South Africa’s non-whites are indeed, on the whole, economically fairly well off. Thirdly, the South African terrain is open and free from jungle; and, finally, the bland, sunny weather is just too good to encourage and sustain a violent revolution.

The point I am making is that South African affairs need not necessarily come to a crisis point, unless this is deliberately engineered by the great powers.

Sixth Axiom: If the great powers were to heed the Afro-Asian call to bring the South African government to its knees, the consequence would be extremely grave. Assuming that economic sanctions (and they would have to be universal and total), coupled with a naval blockade, could bring South Africa to her knees (and that is a very big assumption), how thereafter, I ask, in the ensuing chaos, would the country be governed? An immediate consequence, I believe, would be the need for indefinite international police action. White resistance would be stiffened and great and lasting bitterness would ensue. Not only would it be difficult for foreign powers to maintain peace in the presence of an embittered white minority, with the black majority clamoring for change, but the problem of restoring South Africa as a peaceful, productive, and independent country would, to say the least, be most formidable.

Seventh Axiom: One of the greatest threats to a sane outcome in South Africa—as, indeed, to sanity and health anywhere in Africa—is the ugly growth of anti-whiteism in the modern world. The whites, no doubt, have done much to bring this upon themselves, but it is often despicably nourished by white “freedom fighters” (for a variety of their own reasons). White racism is infernally evil; black racism, let me add, is no less evil—a point which I was delighted to hear Mr. Adlai Stevenson make (at long last) in the United Nations recently.6

Eighth Axiom: My eighth and last axiom is perhaps the most important. Most people in South Africa—including, let me emphasize, a great many Afrikaners—recognize that changes in South Africa’s political structure must come about. The white man knows and concedes that he cannot survive as a dominating and privileged minority. But, while the outside world clamors for change, it is all too often overlooked that changes are, in fact, taking place.

Barely three years ago, in my book The Foundations of Freedom, I criticized the Bantustan experiment in the Transkei on the score that it was retrograde and undemocratic, more particularly because the idea of popular voting was entirely excluded as being alien to the Bantu mentality.

The government’s policy has since changed radically; under the revised Transkeian constitution voting is now allowed to take place on a substantial scale—a definite step, in my view, in the right direction; and so this particular piece of criticism largely falls away.

EVIDENCE OF CHANGE for the better is manifest to anyone who is honest enough to keep his eyes open, and humble enough not to expect the immediate advent of the millenium.

This is especially true in South Africa’s industrial life; African minimum wages are rising steadily; last February the Minister of Labour stated in the Senate that there would be no ceiling to the skills Africans would be allowed to acquire in the border areas (a change in policy which has enormous possibilities); and, in the big cities, the wastefulness and inequity of “job reservation” is beginning to break down in the face of economic realities.

Again, a few years ago, it would have been unthinkable for Nationalist newspapers to refer to Africans as “Mr.” and “Mrs.” This is now being done. This may be a trivial point to those who have no experience of, or sympathy with, South Africa; but for anyone familiar with the history of this country, it is by no means an insignificant change, and—to many—most encouraging.

In short, the situation still holds within it elements of fluidity. While some doors are shutting, others are opening.

I have said that in my view the South African situation has within it elements of fluidity. It is of cardinal importance to keep the situation fluid, and to avoid inducing an overall rigidity through malicious action, or short-sighted action. What, then, can be done to help; and what in the first place, should be avoided? These questions bring me to the enumeration of a few maxims.

First Maxim: There is no health in attempting to fight evil with evil. More particularly, attempts to engineer internal violence, sabotage, and bloodshed can have no beneficial effect. Those who have engineered or condoned murder and violence—often from the safety of sniping points abroad—have achieved little more than trouble and imprisonment for young men and women, deceived by their charm and rhetoric, but left behind to face the music. What is more, they have provided an excuse for increasingly drastic laws. Indeed, there is much truth in the old French proverb that “without the gift of grace, men tend to become like the evil they oppose.”

Second Maxim: Attempts to pull South Africa and her government to their knees by isolation, boycotting, etc., are, in my view, mischevious and irresponsible—unless accompanied by a practical and acceptable alternative form of government. As to such an alternative, the boycotters are notoriously silent.

Third Maxim: Just as black racism is not the antidote for white racism, so too “appeasement” is not the antidote for black racism. You may be sure that no black racist would admire or like the United States or Britain any more for succumbing to the blackmail implicit in the now current Afro-Asian threat: “Choose between our friendship (no matter what the merits of the particular issue may be) or South Africa’s friendship.” The United States and Britain must be prepared to tell black men that they are often as wrong as white men—precisely because they are men; that each specific issue should be decided on its specific merits, and not by reference to an allegedly universal but crude yardstick: “If you are not against South Africa’s government you are against us.”

I am aware that there are some black racists who argue that there is no room for the whites anywhere in Africa. And it is possible that this may yet prove to be the real and horrible issue. “Africa for black Africans!” Happily, this is not the view of most non-whites in South Africa. What South African non-whites understandably desire in their country is a more equitable sharing of power and opportunities, which is not the same thing as a rejection of the whites.

Fourth Maxim: Mere negative shibboleths like “abandon apartheid” are not going to get anyone anywhere. Even the more positive call for a national convention to work out a new deal for South Africa is not really helpful, unless one has workable ideas about what is to happen if the government of the day, of what is after all still a sovereign state, refuses to summon it; and even more to the point, what is to happen if the delegates to such a convention do not agree on a new dispensation. On these specific but crucial points, one will again find the busybodies conspicuously silent or unhelpful.

Fifth Maxim: If international intervention can be justified at all in South Africa, it ought to be justified by reference to an issue of real principle—as distinct from mere expediency—and, what is more, in the application of any genuine principle, there can be no room for “double standards.”

In this regard, I was disappointed by Mr. Mason’s article. Mr. Mason argues that South Africa’s race relations, unlike race relations anywhere else in the world, should not be regarded as a matter of domestic jurisdiction, but are the world’s legitimate business because, he says, South Africa is uniquely guilty of a denial of human rights. South Africa alone uses the legal process to accord different treatment to men by reason only of their color—over which they have no control.

There are several things very wrong with Mr. Mason’s argument.

In the first place, color discrimination, bad as it is, is not the only kind of denial of human rights which should excite Mr. Mason’s indignation. Hungary and Ghana have, it would seem, been guilty of some fairly massive denials of human rights in recent years. Why single South Africa out as a scapegoat?

Secondly, it is by no means the case that South Africa alone is guilty of racial discrimination, backed by law. The Indian Tamils, not so long ago, were ruthlessly disenfranchised by law in Ceylon; and even Denmark draws certain important distinctions between Danes and Greenlanders. Moreover, and this is even more to the point, the absence of racially discriminatory laws from the statute book does not afford an exoneration from vicious racialism in men’s hearts and in actual practice. Indeed, when one looks at the facts—as distinct from mere theory and black-letter law—the body of sinners swells mightily, as you will discover if you talk to Asians in Zanzibar and throughout East Africa; Tamils in Ceylon; Malays and Chinese in Malaya; and many dark-skinned people even in the United States and Britain.

I do not mention these facts because I believe that by saying “you too,” one thereby finds an excuse for South Africa’s sins. Why single South Africa out as a scapegoat, I ask again?

Thirdly, it must be remembered that the South African government quite seriously rejects the contention that it is guilty of a denial of human rights, when it regards racial origin as a legitimate criterion for distinguishing between human beings. Arguing that racial origins are relevant to legitimate governmental objectives in the particular circumstances of South Africa, it places reliance on something like the “separate but equal” doctrine which once obtained in the United States. If today South Africa is admittedly a unique exception in putting forward such an argument, her government would reply that unique problems call for unique remedies. Nowhere else, they contend, within the confines of one country, does one find a comparable racial pattern to that obtaining in South Africa—where the whites are outnumbered by three to one.

I DO NOT PERSONALLY subscribe to the South African argument. On the contrary, I oppose it for reasons which I have set out at length in another place. My point here is simply that it calls for a serious answer, in the course of which the issue of bona fides—that of South Africa as well as that of her critics—may have to be faced.

Fourthly, the attempt to find something unique about South Africa’s case is to miss a golden opportunity to internationalize the problem of race-relations and human rights—whenever and wherever that problem is to be found; and to internationalize it in a mature and effective way.

For some years it has been recognized among international lawyers that the whole argument about the right of a sovereign state to do what it will with its own subjects within its own boundaries is becoming more and more out of date. What is needed is the encouragement and growth of this point of view; and the rededication and strengthening of the United Nations as a more clearsighted, impartial, and rational enforcement-agency against the infringement of human rights, wherever and whenever such infringements occur. These goals, I believe, are not helped forward by the over-simplified and often hypocritical performance of singling out South Africa as the world’s scapegoat. International law and organization are as yet a very tender plant. There is danger that its growth may be blighted by anger where coolness is needed, and by hate where there is need for compassion, charity, and above all honesty.

At the same time, there is much solid and worthwhile work that can be accomplished quietly day by day. As an example of such work, I value none more highly than keeping the channels of communication open between South Africa and what is good and more humane in the world beyond her borders. In such an enterprise, international trade and commerce have, I believe, a vital role to play.

There is an honored place for “industrial statesmanship” in South Africa. The standard of living of the African can and should be raised; African wages can and should be substantially increased on the basis of merit alone (bringing them nearer to white wages) without making enterprises uneconomic; tactful pressures can be brought to bear to relax still further the immoral and economically wasteful “job reservation” laws; new skills and know-how can be imparted to Africans; in short, the vast productive talent and purchasing power of non-white South Africans are ready for full and fair development; and here I would place the emphasis on the role of fairness.

Only a person with a rigid a priori view would regard such suggestions as these as an indefensible bolstering up of Dr. Verwoerd’s government. I prefer to regard it as what it more properly is—an opening up of new and wider horizons; an opportunity to demonstrate that efficiency and economic laws are color blind; an opportunity, in the constructive climate of commerce and industry, and in day to day contact, to treat men and women of all races as they should be treated, for let us never forget that there are no laws against charity—no laws capable of determining the look in a man’s eye and the tone of his voice; and finally, such an enterprise may be an instrument helping to consolidate and cement the interdependence of all men everywhere.

The blacks and the whites not only need each other but are too strong to destroy each other. Indeed, South Africa may demonstrate that economic realities are more potent than political dogmas. Earlier I indicated that I was an integrationist. I am; and I would suggest that, paradoxical as it may seem, the quickest and best route to stable and lasting integration may be the seemingly longest and the least dramatic way. Economic integration, which Dr. Verwoerd favors, may, despite his apparent views to the contrary, not only make eventual political and social integration inevitable, but it may also produce the only safe foundation for its enduring stability.

New Individualist Review welcomes contributions for publication from its readers. Essays should not exceed 5,000 words, and should be type-written. All manuscripts will receive careful consideration.

COMMUNICATION:

Note on the Election

BENJAMIN A. ROGGE*

This communication was written in October before the close of the campaign.

THE ELECTION WILL probably be over by the time this reaches print, and conservatism as a potent political force will be dead. A fine man will have suffered a humiliating defeat and the modern-liberals in his party will be planning a ruthless purge of all those who were closely associated with his candidacy. The stage will have been set for the spectre of the “Goldwater debacle” to haunt the candidacy of every conservative for years to come.

In the meantime, his most passionate supporters will be using their special journals of opinion to vent their disappointment and bitterness in angry explanations of why it happened. Some will say that the campaign was badly conducted (which it was); some, that Goldwater was sabotaged by the modern-liberals of the press, radio and television (which he was); some, that he was defeated by one of the most effective, ruthless and corrupt politicians of the modern era (which may or may not true). The Minutemen will be laying in more rifles and the head of the John Birch Society will be proving to his own satisfaction that Goldwater’s defeat was engineered by members of his own party, acting as conscious agents of the Communist conspiracy.

The truth, I suspect, lies quite elsewhere, and it is this possibility that I wish to explore. My own interpretation of the election can be simply stated: In a democratic society, under normal circumstances, no radical reorientation of social policy can be achieved by simple political organization and political action. Or to put it another way: As a general rule, for groups concerned with ultimate principles, elections just don’t matter!

Let me put it still another way: Given the absence of any feeling of crisis in the American society and given the general acceptance of modern-liberalism by most Americans who count, Goldwater was foredoomed to crushing defeat. All of this was perfectly evident long before Goldwater was nominated. The great mistake was made, not during the campaign, but precisely when those conservatives who pride themselves on being activists and on “knowing how to get things done,” decided that conservatism could be brought to America by what would amount to a political coup. Goldwater’s own clear, good sense in thinking that the time was not ripe and that he could serve the cause better by continuing as Senator from Arizona was overpowered by the passion of the leaders of the Draft-Goldwater group and by their assurance that they had the know-how to get the job done.1

This assurance was bolstered by the ease with which the organization swept through the San Francisco Convention. But of course, it is no great task for a well-organized minority to take over a committee (and that is what a political convention most resembles); in fact, it is done every day.

Goldwater might have won, had the country been plunged in a deep crisis of some kind at the time of the campaign. The victories of the Erhard “social market economy” in Germany in the late forties and more recently of the conservatives in Brazil were both made possible by the wide-spread sense of impending disaster in the societies involved. As John Maynard Keynes wrote with such excellent foresight in 1936: “At the present moment people are unusually expectant of a more fundamental diagnosis; more particularly ready to receive it; eager to try it out, if it should be even plausible.”2 Certainly the philosophical and political success of the ideas he presented in the book in which these words appear would attest to the significance of timing in attempts at radical change.

IN ANY CASE, it was precisely those who pride themselves on their practical wisdom who launched this most impractical and tragic of all modern political actions. The country was simply not yet prepared to accept the conservative position. Goldwater’s campaign could not build on any solid foundation of widely accepted ideas on society, economics, and the state.

This became apparent the moment Goldwater made the slightest threatening gesture in the direction of any specific element of the welfare state, e.g., social security. The response was so immediate and frightening that his campaign strategy made an obvious switch, to concentrate on corruption in the Johnson administration and to promise a rather mystical rebirth of honesty and integrity in government and of “morality” in society.

As Hayek pointed out to us long ago, honesty and integrity in government are not functions of which party is in power, but of the power over economic decisions possessed by those in government.3 But the people were not ready to reduce the power of government, and Goldwater and his advisors had no place else to go.

Nor could much be made out of foreign policy issues. Goldwater’s interventionist posture in foreign affairs was just like Johnson’s, only more so. The Goldwater principles of non-intervention and limited government on the domestic scene seemed to mix poorly with his promise of aggressive, interventionist action on the foreign scene. Whether he was more or less right than Johnson on foreign policy is not at issue. The question is whether there was any fundamental difference between the two in principle, and no such difference could be made to stick (not even the charge that Johnson was “soft on Communism”).

Let me repeat: Goldwater lost because those who count in America weren’t prepared to accept his ideas. The lesson would seem to be that the real function of conservatism in America is not to try to win elections but to try to win converts. The real battle is, as always, a battle of ideas. It matters less what name I drop into the ballot box on election day than what ideas I drop into the common pool during my lifetime.

Not a single one of the principles of limited government and individual freedom has been proved wrong by the Goldwater defeat (just as not a single one would have been proved right by a Goldwater victory). Nor has a single principle of the interventionist, welfare state been proved right by the Johnson victory.

Ideas are still evaluated by a different and more fundamental process, and perhaps it is time that we got back to work on that process. Let us forget for a while all attempts to be clever at political organization. Let us return to our problems of understanding, analysis, and clarity of exposition of the ideas of freedom. If we do our work well, we may some day be rewarded by the only lasting kind of political victory—a situation in which the ideas of freedom are so generally accepted in both parties that it will make little or no difference which one wins.

Economic Liberalism in Post-War Germany

WILLIAM S. STOKES*

. . . I do not believe that the idea of a “German mircle” should be allowed to establish itself. What has taken place in Germany during the past nine years is anything but a miracle. It is the result of the honest efforts of a whole people who, in keeping with the principles of liberty, were given the opportunity of using personal initiative and human energy. If this German example has any value beyond the frontiers of the country it can only be that of proving to the world at large the blessings of both personal and economic freedom.

—Ludwig Erhard1

DR. THEODOR HEUSS, the distinguished first president of the West German Federal Republic, once addressed himself to the question as to why the German has worked hard in recent times. He concluded: “he has had to; there has been no other way for him to earn his living in a country so restricted in area.”2 On the other hand, Professor Louis L. Snyder advances the thesis that German history and social, economic, and political institutions have conditioned the German to an acceptance of authoritarianism. When the elite members of society order the German to work hard, he responds instantly by working hard.3

The German people are indeed hardworking in the West German Federal Republic. They are also imaginative, inventive, efficient, affluent, and humane. In a major policy address delivered by Dr. Gerhard Schröder, Federal Minister of Foreign Affairs, on April 3, 1964, certain facts were revealed which demonstrate clearly that economic progress is continuing in West Germany. Dr. Schröder said, among other things:

With a gross national produce of some 380,000 million Deutschmarks we are at the head of all Common Market countries. Our share in the overall GNP of the EEC comes to almost 40 per cent. Our industrial production has increased by more than 180 per cent between 1950 and 1963, which means that, together with Japan and Italy, we top the list of all industrialized countries of the free world. As regards automobile production we are second only to the United States. The volume of our external trade amounts to 111,000 million Deutschmarks, which makes us today the world’s second trading nation. In recent years, Germany alone has provided roughly twice as much development aid as all the Communist countries taken together.4

Although the explanations for German effectiveness in producing and distributing goods and services provided by Dr. Heuss and Professor Snyder are interesting and perhaps useful, they do not quite cover the situation. One can stand on the border between East and West Germany and, bereft of all of the quantification devices of behavioralists, observe the obvious differences in productivity in the two systems.5 East Germany has the better agricultural land, yet weeds compete with the corn for nutrients in the soil. Even the very young and the very old willingly contribute to agricultural production in West Germany. Workers in the urban centers of East Germany are apathetic and careless, whereas standards of individual performance are high in West Germany. Although repeated so frequently that the whole world must know, it is nevertheless worth saying once more that the contrast between East and West Berlin proves strikingly the superiority of capitalism over socialism. The people in East Germany, of course, are just as German as those in the Federal Republic. If Dr. Heuss’ thesis were valid, they should buzz with economic activity. On the other hand, if Professor Snyder’s thesis were valid, they should respond with great zeal to the admonitions of their Communist leaders: They certainly live under one of the most authoritarian systems the world has ever known. But the fact is that the People’s Democracy in East Germany lags far behind the West German Federal Republic in economic development.

This paper will attempt to show that economic reforms in the direction of a private enterprise, market-oriented economy were primarily responsible for the rapid economic development which has taken place in West Germany in recent years. Special attention must be given to Ludwig Erhard and to Wilhelm Röpke, since Erhard provided the leadership and the policies and Röpke many of the principles of classical liberalism which were embraced by the government of West Germany. Other men in public life in Western Europe have shared the views of Erhard and Röpke. Where they have been able to persuade their governments to move from the planned state (dirigisme) to economic liberalism, the results in terms of economic development have been similar. Such men include Reinhard Kamitz in Austria, Luigi Einaudi in Italy, Jacques Rueff of France, Walter Eucken, and Per Jacobsson.6 It is not merely that economic liberalism has produced a dynamic and creative economic system, important as this fact is, but that the value implications of classical liberalism have extended to social and political life as well.

THE SPIRIT OF the White-Morgenthau Plan permeated the military occupation of Germany in its early years. It was planned that by 1949 Germany’s overall industrial capacity would be reduced to about 50 to 55 per cent of the prewar 1938 level (excluding the construction and building materials industries). The “planned reduction in Germany’s resources” would result in “a 30 per cent cut in the standard of living” as compared with the average standard of living before the war (1930-38).7 About 6.6 million Germans were killed during the war, 3.5 million were disabled, and more than 15 million lost their homes.8 Many parts of Germany were literally flattened. Although the initial policy was to disable rather than rebuild, the United States never intended to starve Germans to death. Between July 1, 1945, and March 31, 1950, total United States aid to West Germany was $3,801 million. As of July 31, 1952, the figure was somewhat greater. The United States claimed officially that the economic aid was used for purposes of achieving recovery in Germany. “In one form or another some 4 billions of dollars of United States aid have been applied to the economic recovery of West Germany in accordance with a policy of assistance to a defeated foe unduplicated in history and in violent contrast to the treatment accorded the areas of Germany under Soviet domination.”9 In a very broad sense, this statement may be accurate. However, the economic aid was not used to construct new industries or activate agriculture. “Nearly all of this aid represents the cost of procuring and shipping food, industrial raw materials and like commodities to Germany.”10 An official report of the Military Government describes United States policy as of 1946: “No attempt has been made to do extensive rebuilding while new construction has been absolutely prohibited.”11

Although the United States government spent billions of dollars in Germany, policies of rationing, price control, centralized direction, restriction, and restraint—coupled with a failure to stabilize the monetary situation and manage the inflation—resulted in a virtually stagnated economy: “by the end of 1945 industrial output was no more than 25 per cent of 1936 and perhaps as little as 15 per cent of the highest wartime level.”12 The plants operating by the end of 1945 represented about 15 per cent of the total industrial establishments in the United States zone. However, such plants were operating at no more than 5 per cent of capacity.13 About 20 per cent of the German population in the United States zone was receiving public assistance in some form or other.14 Little improvement could be claimed in 1946. The official report for the period stated: “Industrial production is estimated at only 10-12 per cent of current capacity in the United States Zone.”15 As of late 1949, the economic situation in Berlin could only be described as deplorable. About 25 per cent of the residents were unemployed. The Soviets looted to a point of reducing industrial capacity about 80 per cent. By the end of 1949, 800,000 of the 2.1 million total population or 38 per cent were being subsidized by some form of public aid.16

Despite the heavy expenditures of United States dollars, few Germans ate well. In the first 21 months of the occupation, rations were as low as 1,180 calories per person per day; and in only 8 out of the 21 months did the rations reach 1,550 calories per day in the American zone.17 Average weight continued to decline from sub-standard figures in June 1946, resulting in a nutritional status so low “as to entail excessive morbidity and mortality from infectious diseases in general and respiratory diseases in particular.” The increased incidence of tuberculosis is explained by weight deficiency and overcrowding.18

In a speech delivered at Antwerp, Ludwig Erhard described the character of the German economy just prior to the currency reform:

It was a time when most people did not want to believe that this experiment in currency and economic reform could succeed. It was a time when it was calculated that for every German there would be one plate every five years; a pair of shoes every twelve years; a suit every fifty years; that only every fifth infant would lie in its own napkins; and that only every third German would have a chance of being buried in his own coffin. That seemed to be the only life before us. This demonstrated the boundless delusion of planners that, on the basis of raw material stocks and other statistical data, the fate of a people could be determined for a long period in advance. These mechanists and dirigstes had absolutely no conception that, if a people were allowed once more to become aware of the value and worth of freedom, dynamic forces would be released.19

LUDWIG ERHARD, who was elected director of economic administration of the bi-zonal economic area on March 2, 1948, before becoming Minister of Economic Affairs in the new government and Chancellor in 1964, made clear in party circles and in the Military Government that he sought the destruction of planning and the institution of a market oriented economy. He found some opposition within his own party (the Christian Democratic Union or CDU-CSU). The Social Democratic Party (SPD), Marxist influenced and socialist in a formal, official fashion, naturally despised everything Erhard stood for in the field of economics. In addition, there was apparently a preponderance of economic planners, mostly United States university professors, acting as advisers in the Military Government. Although Erhard is a friend and supporter of the United States, various statements in one of his books suggest that he had a difficult time with the economists in the Military Government. For example, he says: “It was strictly laid down by the British and American control authorities that permission had to be obtained before any definite price changes could be made. The Allies never seemed to have thought it possible that someone could have the idea, not to alter price controls, but simply to remove them.”20

Again, when Erhard put currency stability in the forefront of his objectives, the Allies “in a heated ‘war of memoranda,’ preferred full employment . . . [to] the stability of our currency . . . . nearly all forces joined for a general attack on the market economy, forgetting that only through greater productivity and free competition, on the basis of the stability of our money, could we secure our position in the world markets.”21 When Erhard wanted to lower certain taxes and to remit others in order to step up consumption and lighten the burden on the economy, the Allies “at first refused permission for this tax reform.”22 Other words and phrases in his book further indicate the reluctance of the American authorities to accept economic reform: “interventions from the Americans”; the Income Tax Law of April 23, 1950 “was finally sanctioned by the Allies”; etc.23 The head of the E.C.A. mission in Germany expressed his distaste for what Erhard was doing by describing the German tax system as the most “anti-social in the world.” Erhard says that “there was constant pressure from the U.S.A. to introduce controls . . . .”24

The first great reform which Erhard achieved was the Tripartite Currency Reform, officially promulgated June 18, 1948 (Military Government Law No. 61), effective June 20. The reform retired the Reichsmark and established the Deutsche Mark. There would be DM 10 billion in the western zones (DM 11 billion on agreement of at least three-fourths of the Boards of Directors of the Bank Deutscher Länder of at least six of the Länder).25

From 1935 to 1945, the currency in circulation had increased from about RM 5 billion to over RM 50 billion. Bank deposits grew from about RM 30 billion to over RM 150 billion. Reich debt increased from RM 15 billion to RM 400 billion, “excluding war damage and other war-connected claims of RM 300 to 400 billion . . . . By 1946 the national income had been reduced from RM 60 billion to about RM 25 billion to 30 billion in 1936 prices.” It was estimated that the black market controlled 50 to 60 per cent of production, with prices often fifty to several hundred times the official prices.26

Erhard quotes Jacques Rueff and Andre Piettre as to the immediate effect of the currency reform in West Germany, and the paragraph is worth quoting here:

The black market suddenly disappeared. Shop windows were full of goods; factory chimneys were smoking; and the streets swarmed with lorries. Everywhere the noise of new buildings going up replaced the deathly silence of the ruins. If the state recovery was a surprise, its swiftness was even more so. In all sectors of economic life it began as the clocks struck on the day of currency reform. Only an eye-witness can give an account of the sudden effect currency reform had on the size of stocks and the wealth of goods on display. Shops filled up with goods from one day to the next; the factories began to work. On the eve of currency reform the Germans were aimlessly wandering about their towns in search of a few additional items of food. A day later they thought of nothing but producing them. One day apathy was mirrored on their faces while on the next a whole nation looked hopefully into the future.27

The bi-zonal index of industrial production increased from about 47 per cent of 1936 in May 1948 to 75 per cent in November28 and to 140 per cent by mid-1952.29 Lutz, Sohmen, Wright, and Röpke agree that currency reform was the beginning of the general policy of freedom of economic opportunity (Gewerbefreiheit) which, year after year, has continued to produce highly satisfactory results.30

Wilhelm Röpke has provided the best description of the nature of the economic reforms:

The essence of the German economic reform corresponds to the sickness which it was intended to cure. If the sickness was that combination of collectivism and inflation which we have designated as repressed inflation, the therapy for it had to consist, on the one hand, in the elimination of inflationary pressure and, on the other hand, in the elimination of the apparatus of repression (maximum prices, rationing, controls, and other interferences with free prices) and the restoration of market freedom, free prices, competition, and entrepreneurial incentives. Freedom in the realm of goods, discipline in the realm of money—those were the two principles upon which rested the German economic revival from 1948 onwards, and they have remained the foundation of German prosperity in spite of all the many concessions made to interventionism and the welfare state.

The reform of 1948 was constituted, then, of two parts: the overcoming of inflation and the dismantling of the apparatus of repression. The first was accomplished by the monetary reform, the second by the economic reform represented in the restoration of the market economy. Thus were the twin pillars of genuine economic order reconstructed from the chaos and the paralysis of the inflationary planned economy: the steering and motive power of free prices and the stability of the value of money.31

It is hard not to agree with Röpke when he says that “here is to be found the most convincing case in all history against collectivism and inflationism and for market economy and monetary discipline.”32

In my opinion, the most important result of currency reform was that human beings became important again. Individual dignity and self-respect were restored. It was the economic success of the early reforms, however, which provided the government with the means to behave in a humane manner. In order to assist some 13,090,000 expellees and refugees to find new homes and jobs and become a part of the West German community, more than $14.3 billion had been spent by January 1961. About 12.5 per cent of the total national product is devoted to social welfare functions (although Erhard makes crystal-clear his opposition to the concept of the paternalistic state). Restitution payments to the victims of the Nazi tyranny have been recognized to the extent of $7.8 billion, half of which has already been paid. The Federal Government has met its defense obligations through expenditures of $19,223 million ($21,823 million if aid to Berlin is included) in the period 1950-1960.33

No one knows or can measure the creative potentialities of human beings. The best way to discover who is capable of achievement is to permit all to try, each in accordance with his own inclinations and ideals. In Germany since 1949, talent has burst to the surface where none was ever suspected of existing. The tremendous increase in vertical mobility has already changed attitudes and perhaps values as well in the direction of representational government. With freedom, individuals have experimented with many kinds of social and economic activities. Inevitably, the like-minded have formed voluntary organizations to discuss and, more recently, scrutinize government to see that no one in authority jeopardizes the new-found liberty.

The achievements of the “social market economy” and republican government under federalism should not be exaggerated, however. West Germany is not rich in natural resources, except for coal. No matter how inventive, ingenious, and hard-working Germans may be, relatively full employment and a high level of prosperity depend to an important degree upon an international climate that permits free, fair access to raw materials and markets. The CDU-CSU Government has succeeded in bringing about agreements liberalizing trade in the European area, but a reversal of this trend would have a negative effect. Although about 5.5 million homes were built in the period 1950-1960, construction techniques are less advanced than in the United States. Retail merchandising, especially in food, must be improved if people are to obtain high quality products at low cost.

One reform which Erhard hoped to accomplish early in his administration was the modernization of agriculture and the elimination of subsidies. When the Bonn government assumed power in 1949, the many small farms were divided into about 25 million tiny scattered strips, resulting in “an enormous waste of time, labor and land resources and seriously handicapping mechanization.”34 The “Green Plan,” which is the term used to designate the program of government subsidies, distorts the market and delays the fundamental solution to the problem of producing inexpensive fruits, vegetables, meat, and dairy products. The elimination of subsidies, tariff reform, and consolidation (by voluntary means, not by government coercion) of the small plots represent goals which Erhard has not yet been able to realize.

ERHARD AND THE FOUNDING Fathers of the Bonn system believed that a private enterprise, market-organized economic order was essential for political liberty and freedom. When the White-Morgenthau policy was abandoned and West Germany was permitted to attempt national regeneration in the political realm, the Germans advanced their views to the military authorities.35 After much deliberation, the three Military Governors submitted an Aide-Memoire to the Parliamentary Council meeting at Bonn on November 22, 1948, outlining the constitutional principles which the occupation authorities believed should be incorporated into the new “basic law” (Grundgesetz rather than Verfassung because the Founding Fathers at Bonn wanted to reserve the term “constitution” for the organic statute of a reunited Germany). The Aide-Memoire is a remarkable document, because its recommendations are the result of searching analysis of why the representational system failed in the Weimar Republic, culminating in the Nazi tyranny. As the Aide-Memoire does not seem to be well-known, or, at least, is not often mentioned in scholarly studies of Germany, it is perhaps worthwhile to insert the provisions here:

“They [the Military Governors] believe that the Basic Law should, to the maximum extent possible, provide:

“a. For a bicameral legislative system in which one of the houses must represent the individual states and must have sufficient power to safeguard the interests of the states;

“b. that the executive must only have those powers which are definitely prescribed by the constitution and that emergency powers, if any, of the executive must be so limited as to require prompt legislative or judicial review;

“c. that the powers of the federal government shall be limited to those expressly enumerated in the constitution, and, in any case, shall not include education, culture, health (except, in this last case, to secure such coordination as essential to safeguard the health of the people in the several states); and that its powers in the field of public welfare be limited to those necessary for the coordination of social security measures; and that its powers in the police field be limited to those especially approved by the Military Governors during the occupation period;

“d. that the powers of the federal government in the field of public finance shall be limited to the disposal of monies, including the raising of revenue for purposes for which it is responsible; that the federal government may set rates and legislate on the general principles of assessment with regard to other taxes for which uniformity is essential, the collection and utilization of such taxes being left to the individual states; and that it may appropriate funds only for the purpose for which it is responsible under the constitution;

“e. that the constitution should provide for an independent judiciary to review federal legislation, to review the exercise of federal executive power, and to adjudicate conflicts between federal and Land authorities as well as between Land authorities, and to protect the civil rights and freedom of the individual;

“f. that the powers of the federal government to establish federal agencies for the execution and administration of its responsibilities should be clearly defined and should be limited to those fields in which it is clear that state implementation is impracticable;

“g. that each citizen have access to public office, with appointment and promotion being based solely on his fitness to discharge the responsibility of the position, and that Civil Service should be non-political in character; and

“h. that a public servant, if elected to the federal legislature, shall resign his office with the agency where he is employed before he accepts election.”36

How unnerving and even galling the provisions of the Aide-Memoire and, indeed, the Bonn Basic Law must be to the modern-day “liberal.” Both sources prove that one can “turn the clock back” to the principles of classical liberalism, such as individualism, voluntarism, genuine division of powers, states’ rights, and most important of all, limited government.

BUT WHAT ABOUT the Social Democrats? What has been the impact of the return to classical liberalism insofar as their ideological and policy posture is concerned? Are they sincere in rejecting socialism in favor of the “social market economy” now in force?

Although the SPD until very recently opposed every major foreign and domestic policy of the Bonn Government, it is possible to argue that the party has now shifted fundamentally in the direction of strong, if not militant anti-Communism, and that it now supports the private enterprise economic system. It is difficult to conceive how a party could so radically change its position in so short a period of time, but there is evidence that this is what has happened.

The left-right conflict in the SPD over socialism and capitalism was resolved in a draft program published in the SPD paper Vorwärts on September 10, 1959. The program eliminated the term “class struggle” and included only one reference to the “privileges of the ruling class.” It moved away from socialism and endorsed private enterprise in such phrases as “prosperity for all”; “freedom of choice for consumer goods”; and “free initiative for entrepreneurs.” However, other phrases in the program indicated that the Party intended to remain at least partly leftist: “democratic socialism”; “just socialist order”; and “competition as far as possible and planning as far as necessary.”

The program called for nationalization of coal and power, control of the management of large industries, cartel regulation, investment supervision, and competition by public enterprises. It preferred respect for religious institutions and endorsed their protection by law and accepted the principle of national defense. The convention of the SPD held at Bad Godesberg approved the major provisions of the draft program on November 16, 1959. Thus, the Bad Godesberg program replaced the Heidelberg program of 1925 and committed the SPD to new policies of private property, a free economy, and national defense. The Bad Godesberg program clearly rejects Marxism and denies that socialism can be made a substitute for religion. The orthodox Marxists at the convention remained almost completely silent, and only 16 out of 340 delegates voted against the program. The public press made clear that the wing of the party which supported the anti-Communist and moderate economic views of Willy Brandt had triumphed over the leftists who had dominated the party in recent years.37

IT IS THE ATTITUDES and values which individuals hold and cherish which determine the character of a state, regardless of the forms, structures, laws, or constitutions which may be in force at any given time. It is true that political and governmental institutions contribute to the value pattern of a society, but the family, Church, education, social classes, and the economic system also play important roles. If one seeks a society of free men organized in an independent state, it is logical to assume that the possibilities for success are maximized by creating as complete a climate of freedom as possible. If I interpret the evidence correctly, this has been the position of the leaders of the new German state since the inception of the Federal Republic in 1949 and even before, since the currency reform was in 1948. By honoring the concept of the worth and dignity of the individual Erhard and his supporters have unleashed talent and ability which almost overnight produce a dynamic economic system which in turn made values of voluntarism, fluidity and mobility in the class system meaningful. Since freedom is indivisible, it is only logical to insist on the establishment of a government limited to a range of functions compatible with personal liberty.

Since man is fallible and his institutions necessarily imperfect, one should not overestimate the achievement of the renewed application of principles of classical liberalism in a single country. In West Germany over three-fourths of the adult population had only eight years or less of schooling in 1949. Educational opportunities have increased since that time, of course. However, children are still separated at about age ten into the small group preparing for university or professional education and the large majority who face early terminal education and employment. Good as the system is in many respects, it may deny the country the skills and leadership which a longer and more flexible education might produce. The present system probably reduces mobility, makes the class structure more rigid, and aggravates individual and group conflict. The retention of the old division (almost a caste system) of the Beamten, civil service officials with a formal certificate of appointment, and the Angestellte, or employees, has a similar effect in the public service.

In the political and governmental field, the partial use of proportional representation permits fragmented, “functionary” parties, although West Germany is practically a two-party country in national elections. Single member constituencies and majority voting may replace proportional representation completely in time, thus compelling party leadership to behave more considerately and responsibly toward party members. Although the right-wing movements have declined in influence since about 1951-1952 and the major parties are committed to the principle of representation, there does not seem to exist any large degree of popular enthusiasm for the mechanical aspects of the Bonn system. Many Germans do not regard it wholly as their own creation. I was told many times: “It’s all right, but when we achieve reunification, we will put our heads to the task and come up with something better.” Perhaps so, but in the meantime it is possible to conclude that the German experience proves once more that some ideas are better than others, and that sometimes those which have prevailed in the past serve the needs and idealistic aspirations of man better than those which happen to be popular at present.

It has seemed to me that the achievements of Bonn have contributed to the defeat of socialism in the Western European countries. In a trip to the major countries of the Far East in 1963, a research experience which permitted me to talk to heads of state, men in public life, scholars, and businessmen, I found that there was widespread awareness of the German case study. I seemed to detect an awareness of the fact that those countries in the Far East which have taken steps to free their economy (Japan, Taiwan, and the Philippines for example) were regarded as having achieved a more impressive economic and political experience than those which have moved in the direction of state interventionism and planning (such as Indonesia, Ceylon, Burma, or India). As a Latin Americanist, I have many times called attention to the strong penchant for left or right-wing collectivism among both large and small countries in the Western Hemisphere. In the last ten years, however, and especially in the past several years, much evidence has appeared to suggest that people with power and influence in the community are re-examining the principles of classical liberalism, particularly in the economic realm. The case study of Germany in particular, Western Europe in general, and most recently, Spain, which is in the process of dismantling state controls, appears in the literature and in the discourse of knowledgeable people. Even in the United States itself it might be said that some change of direction can be discerned.

Property Law and Racial Discrimination

ROBERT M. SCHUCHMAN*

RECENT CIVIL RIGHTS legislation, both state and federal, has incorporated the premise that the right to use and dispose of private property is limited by the concept that all persons are deserving of an equality of treatment, regardless of race, creed, or nationality. It is not our purpose to review “public accommodations” legislation. Instead, we shall examine the judicially-inspired thesis that the doctrine of racial equality serves as a constitutional limitation on the use and disposition of property, regardless of the presence or absence of statute.

The first pertinent problem considered by the federal courts in this century was the obverse of the principal question here. The issue presented in Buchanan v. Warley, 245 U.S. 60 (1917), was whether the government could, through legislation, impose a racial preference on the use and disposition of property. An ordinance of the city of Louisville prevented the residential occupancy of a lot by “a person of color” in a block where the greater number of residences were occupied by white persons. A sale of private property to a Negro in such a block was declared to be void.

The law was defended on the ground that it was a proper exercise of the police power of the state. It was claimed that the ordinance “tends to promote the public peace by preventing racial conflicts; that it tends to maintain racial purity; that it prevents the deterioration of property owned and occupied by white people . . . .” 245 U.S. at 73-74.

A white person sold a residential lot to a Negro in a “white block.” When the buyer refused to fulfill the contract, relying upon the racial occupancy ordinance, the seller sued for specific performance, claiming that the Louisville act violated the Fourteenth Amendment to the Constitution.

In its decision, the United States Supreme Court upheld the right to freely dispose of one’s property regardless of the local law. The Court said that:

The effect of the ordinance under consideration was not merely to regulate a business or the like, but was to destroy the right of the individual to acquire, enjoy, and dispose of his property. Being of this character, it was void as being opposed to the due-process clause of the Constitution.

245 U.S. at 79-80.

It further said that:

The Fourteenth Amendment protects life, liberty, and property from invasion by the States without due process of law. Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.

245 U.S. at 74.

It must be stressed that Buchanan v. Warley does not speak in terms of the equal protection clause of the Fourteenth Amendment. The decision emphasizes the “essential attributes” of the rights of property, attributes which, it is said, are protected by the ancient concept of due process of the law.

RACIAL RESTRICTIONS on the alienation of property, when imposed by the government, were struck down in subsequent decisions even when couched in the guise of a zoning regulation. Thus, in City of Richmond v. Deans, 37 F.2d 712 (4th Cir.), aff’d, 281 U.S. 704 (1930), the court held as violative of the Fourteenth Amendment a zoning ordinance which prohibited the sale of a residence on a block “where the majority of residences on such street are occupied by those with whom said person is forbidden to intermarry . . . .” Because that question was not before the court, it did not rule on the constitutionality of the law prohibiting intermarriage.

The rule that the alienation of property was entirely free from restrictions based on the racial preferences of the state was again upheld in a 1932 case in Missouri. However, the decision in this case left the door open for future regulation if such regulation was found to be for the public welfare.

Private property cannot, under the guise of police power, be subjected to unreasonable annoyance and arbitrary restriction of its use where public welfare can in no way receive benefit by such restriction.

Women’s Kansas City St. Andrews Soc. v. Kansas City, 58 F.2d 593, 598 (8th Cir. 1932).

Now it was no longer a question of the “essential attributes of property.” The basic issue was said to be whether “public welfare” could in any way “receive benefit.” Since the racial ordinance did not benefit the public welfare, it was stricken.

The constitutional power of the states to attach a racial preference to the exercise of the rights of property seemed a settled issue after Buchanan v. Warley and the subsequent line of cases. A governmental body could not, constitutionally, command a property owner to restrict the sale and use of his property to members of a specified race or color.

These early cases dealt with statutes; they were concerned with the limits of the law as exercised through the police power, not with the purely private arrangements of men. If the state could not impose racial preference by law, then the next and obvious question was: Could the state impose racial non-preference on private property and private arrangements by the use of law?

As we have noted, Buchanan v. Warley held that a racially restrictive ordinance was void not because it interfered with the federal government’s notions of equality, but because it infringed upon the essential rights of property held by the individual. However, when state laws imposing non-discrimination on private arrangements were challenged in the courts, a completely new rationale was used to uphold the laws.

The New York Civil Rights Act provided, inter alia, that no labor organization could deny a person membership or equal treatment because of race, color, or creed. In Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945), the union challenged the Act on the ground that, in line with Buchanan v. Warley, it was an unconstitutional “interference with its right to selection of membership and abridgment of its property rights and liberty of contract.” It was argued that the right of property to be free from one brand of government racial preference implied freedom from any other preference.

The Supreme Court disagreed and held that property was only free from legislation imposing racial discrimination, not from that imposing racial equality:

A judicial determination that such legislation violated the Fourteenth Amendment would be a distortion of the policy manifested in that amendment, which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color.

326 U.S. at 93-94.

THUS THE PROTECTION of the right of property by the Fourteenth Amendment, in the racial context, became a simple expression of the racial policy preferences of the state. No longer was the right to use property free from the racial preference of law a part of the “essential attributes of property,” as far as freedom from positive law restriction was concerned.

The development of the law from a general protection of property rights to a judicially approved mirror of public policy is echoed in the area of purely private arrangements. Contemporaneous with the line of cases concerning laws which express racial preference in property relations is a trend of decisions affecting private agreements and decisions on the use and disposition of property.

The first of these cases concerned the so-called “restrictive covenant” in real property. A racial restrictive covenant is typically an agreement among property owners, binding on the land for a specified number of years, which declares that no property in the area covered by the contract may be sold, leased, or used by members of the Negro race.

Historically, racially restrictive covenants on land were considered to be valid and enforceable contracts. They were agreed upon voluntarily by the contracting landowners, were secured by a valuable consideration, and any new buyer took possession subject to and with notice of the restriction. Except for an isolated case in 1892, such covenants were consistently upheld, except where they violated the common law policy against unreasonable restraints on alienation, or where enforcement was deemed inequitable because of the changed character of the neighborhood. But, after Buchanan v. Warley, challenge after challenge was made to these covenants on the ground that they denied the excluded race due process of the laws.

The courts generally rejected this argument without much comment. The Buchanan rule was held to apply solely to state action. When purely private parties agreed to a restriction, there was no constitutional violation and no rights were denied by enforcement of the covenant. A clear statement of the early judicial reaction to the racial covenant challenge may be found in the lower court opinion in Corrigan v. Buckley, 299 Fed. 899 (D.C. Cir. 1924), which upheld the covenant, stating:

The constitutional right of a Negro to acquire, own, and occupy property does not carry with it the constitutional power to compel sale and conveyance to him of any particular private property. The individual citizen, whether he be black or white, may refuse to sell or lease his property to any particular individual or class of individuals . . . . Such a covenant is enforceable, not only against a member of the excluded race, but between the parties to the agreement.

299 Fed. at 901.

This was a restatement of the “essential attributes of property” argument embodied in Buchanan v. Warley. Just as a property owner was free to sell to a Negro despite laws attempting to negate this right, he could agree to refuse to sell to a Negro without state interference. The denial of due process occurred when the state dictated a racial preference in property, not when individual property owners expressed this preference.

On appeal, the Supreme Court affirmed the lower court holding in Corrigan v. Buckley, 271 U.S. 323 (1926). The Court emphasized that the due process clause of the Fifth and Fourteenth Amendments was a “limitation only upon the powers of the General Government, and is not directed against the action of individuals.” 271 U.S. at 330. Hence, there was no substantial federal question involved in the enforcement of private restrictive covenants. The Court dismissed, without much comment, the novel contention that the Court decree enforcing the covenant was itself state action, and such enforcement therefore denied due process of law to the petitioner.

Such was the state of the law when, in 1948, the landmark case of Shelley v. Kraemer, 334 U.S. 1, reached the Supreme Court. On February 16, 1911, thirty out of a total of thirty-nine owners of property in a certain lot in St. Louis, Missouri, signed an agreement, subsequently recorded, which provided in part:

. . . the said property is hereby restricted to the use and occupancy for the term of Fifty (50) years from this date, so that it shall be a condition all the time and whether recited and referred to as [sic] not in subsequent conveyances and shall attach to the land as a condition precedent to the sale of the same, that hereafter no part of said property or any portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purposes by people of the Negro or Mongolian Race.

On August 11, 1945, Shelley, a Negro, purchased a parcel of land in the lot concerned. On October 9, 1945, the white landowners in the lot brought suit to enforce the terms of the restrictive covenant. The Supreme Court of Missouri granted the relief, holding the agreement effective and concluding that enforcement of its provisions violated no rights guaranteed by the Federal Constitution. Kraemer v. Shelley, 355 Mo. 814, 198 S.W. 2d 679 (1946).

Shelley took his appeal to the United States Supreme Court. Chief Justice Vinson, in his decision, noted initially that the racial restrictions of this private agreement “could not be squared with the requirements of the Fourteenth Amendment if imposed by state statute or local ordinance,” 334 U.S. at 11. But this was a voluntary, private restriction, and a different rule of law applied:

. . . the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.

We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated.

334 U.S. at 13.

SO FAR, this is just a restatement of the old law. But Shelley argued, and the Court agreed, that the mere enforcement of these admittedly lawful covenants constituted state action in violation of the Fourteenth Amendment. The reasoning of the Court in this regard is so vital for an understanding of later applications of the “state action” doctrine that I take the liberty of quoting from the decision at some length:

It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.

These are not cases . . . in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. . . . Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement. State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the Fourteenth Amendment, it is the obligation of this Court to enforce the constitutional commands.

334 U.S. at 19-20.

The decision in Shelley v. Kraemer was shattering in its impact. It held, in effect, that although private racial preference contracts were perfectly valid and legal, their enforcement was unlawful. The Court treated the equitable enforcement of a restrictive covenant as a positive discriminatory act of the state, bringing it within the limitations of the Fourteenth Amendment.

This analysis, it would seem, entirely misconstrues the historical role of courts of equity. Moreover, it ignores the distinction between the judicial function of enforcing positive law and that of settling private disputes and construing private agreements. In the Buchanan v. Warley situation, the courts were called upon to enforce a legislative enactment expressing racial preference. It was because the underlying act, an expression of the positive law, was contrary to the Fourteenth Amendment, that the enforcement of the law was also barred.

The private agreement in Shelley v. Kraemer presents an entirely different situation. There, the underlying act was a voluntary private covenant, admittedly in violation of no law. The role of the court was not one of enforcing a coercively based government measure. Rather, the court was to act as a neutral arbiter of private disputes by carrying out the solemn agreements of a contractual society. In its enforcement of private contracts, the courts should not judge the substance of such contracts. Private agreements, to this observer, need not reflect the prevailing government policies. Otherwise, liberty of contract is a sham.

IT HAD BEEN accepted doctrine in the Anglo-American community that courts were not to write the contracts of men: they were to construe and then enforce them, regardless of which party had the better bargain, so long as the bargain was not illegal. Those who dislike a contract need not agree to it. When a person received notice of a restrictive covenant on a property he wished to buy, he was free to accept it with the covenant or not make the purchase. The novel doctrine of Shelley v. Kraemer places the courts in the position of rewriting the bargain to conform to current majority sentiment. To say the least, this is not an expression of freedom of contract.

Numerous cases since Shelley v. Kraemer have extended the “state action” thesis even further. In the companion case to Shelley, Hurd v. Hodge, 334 U.S. 24 (1948), the Supreme Court considered the enforcement of a restrictive covenant in the District of Columbia. Inasmuch as the Fourteenth Amendment applies only to the states, and not to the District, a different rationale than that relied upon in Shelley was required.

One contention of the petitioners in Hurd v. Hodge was that “judicial enforcement of the covenants is contrary to . . . treaty obligations of the United States contained in the United Nations charter.” 334 U.S. at 28, n.4. To this and other arguments the Court stated that enforcement was

. . . judicial action contrary to the public policy of the United States, and as such should be corrected by this Court in the exercise of its supervisory powers over the Courts of the District of Columbia. The power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of the public policy of the United States as manifested in the Constitution, treaties, federal statutes, and applicable legal precedents. Where the enforcement of private agreements would be violative of that policy, it is the obligation of courts to refrain from such exertions of judicial power.

334 U.S. at 35.

Here, as in Shelley, we see the notion that property must be used in accordance with the majority sentiment of the day dignified into a governing juridical principle. The final statement of this doctrine, as applied to restrictive covenants in real estate, appeared in the case of Barrows v. Jackson, 346 U.S. 249 (1953). A sale of restricted real estate was made to a Negro purchaser and, under the authority of Shelley v. Kraemer, he was permitted to occupy the lot without challenge. However, the owners of the adjoining properties, who were parties to the restrictive covenant, sued the white vendor of the lot in question for money damages for breach of contract.

Here it could hardly be argued that “state action” was being used to exclude Negroes and deny rights guaranteed by the Fourteenth Amendment. Unlike Shelley, the court was not asked to enforce the contract and expel the Negro purchaser. Rather, the covenanting parties sought to hold the violating party liable for his breach. The Supreme Court disagreed however, and, in a terse decision, disallowed the recovery of damages under the authority of Shelley v. Kraemer.

The new departure of the Court in Barrows v. Jackson was emphasized by Chief Justice Vinson in a vigorously worded dissenting opinion. It will be recalled that Vinson actually wrote the opinion in Shelley v. Kraemer. Yet, in Barrows, he said:

The majority seems to recognize, albeit ignores, a proposition which I thought was made plain in the Shelley case. That proposition is this: these racial restrictive covenants, whatever we may think of them, are not legal nullities so far as any doctrine of federal law is concerned; it is not unlawful to make them; it is not unlawful to enforce them unless the method by which they are enforced in some way contravenes the Federal Constitution or a federal statute.

* * * * * * *

The majority identifies no non-Caucasian who has been injured or could be injured if damages are assessed against respondent for breaching the promise which she willingly and voluntarily made to petitioners, a promise which neither the federal law nor the Constitution proscribes. Indeed, the non-Caucasian occupants of the property involved in this case will continue their occupancy undisturbed regardless of the outcome of the suit.

346 U.S. at 261, 262.

As Chief Justice Vinson pointed out, the Shelley doctrine goes much further, as applied, than a mere ban on enforcement of private agreements expressing racial preference. Despite all the verbiage about the lawfulness of these agreements in themselves, the Court actually struck down the underlying voluntary agreements. Since Shelley v. Kraemer, the Supreme Court has extended the “state action” rule to prohibit more and more private uses of property. In a society where broken agreements can only be enforced through the judicial system, it has declared that, in effect, all contracts partake of state action. As the Supreme Court put it: “Once courts enforce the agreement the Sanction of government is, of course, put behind them [sic].” Railway Employe’s Dep’t. v. Hanson, 351 U.S. 225, 232 n.4 (1956). No longer is the Court the neutral enforcer of private contracts; instead, it becomes a participant in the contract.

The Shelley rule was extended to labor union contracts in Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768 (1952), where it was held that, under the Railway Labor Act, a union could not make a contract where race was a determinent of employment. One of the reasons therefore was that since Congress authorized the system of collective bargaining through union representatives such representatives would act in violation of the Constitution if they deprived a worker of benefits because of his race. 343 U.S. at 773.

ANOTHER FACET of the Shelley doctrine is whether a member of the excluded race has a right to use another person’s private property when the exclusion is based solely upon race. The recent trend of decisions concern not judicial enforcement of racial restrictive contracts, but judicial compulsion directed against those voluntarily agreeing to abide by such contracts.

An early case dealing with the question was Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70 (1955). The contract of sale of a burial lot in the cemetery provided that “burial privileges accrue only to members of the Caucasian race.” The Cemetery, acceding to its own contract, refused to bury a certain Winnebago Indian. The decedent’s widow sued the Cemetery to compensate her for its action. She argued that judicial recognition of the validity of the racial clause in the burial contract would violate the Fourteenth Amendment and, in addition, the provisions of the United Nations Charter.

The Supreme Court of Iowa denied relief to the widow. It held that, under Shelley v. Kraemer, it could not compel the Cemetery to obey its contract by excluding non-Caucasians. However, where the Cemetery was only relying upon the racial clause as a defense to an action, the court could not reform the contract by enforcing it without regard to the racial clause. Moreover, the court said, the provisions of the United Nations Charter “have no bearing on the case.”

The widow appealed the decision to the United States Supreme Court, which granted certiorari. The Court split down the middle, four Justices for affirmance, four for reversal. Under the traditional rules of the Court, an evenly-divided court is treated as an affirmance of the lower court, but no opinion is filed. Hence, the reasoning of the Justices in this case is unknown, although four jurists apparently believed that the racial restriction in the burial contract could not be privately enforced by the Cemetery. The Iowa Legislature then passed a statute prohibiting denial of burial solely on account of race. This law, governing future burial contracts, made the Rice situation a moot question.

But more recent cases have probed more deeply into the issue of a private right to express racial preference on one’s own property. In Wilmington, Delaware, a Negro was refused service in a privately owned and operated restaurant which was, however, in quarters leased from the municipal parking agency which owned the building. The Negro sued to compel the restaurant to serve him, on the ground that the restaurant had sufficient proximity to state action for denial of service to constitute a violation of the Fourteenth Amendment. From an adverse decision in the Supreme Court of Delaware, he appealed to the United States Supreme Court.

In, Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), the Court reversed the decision, holding that state action was involved in the restaurant, and the Negro could not be denied service because of his race. It was found that the Parking Authority and the city of Wilmington owned the land and the building in which the restaurant was located; the building, a municipal garage, was dedicated to a “public use”; the costs of acquisition, construction, and maintenance of the building were publicly defrayed; and the restaurant gained the benefits of proximity to the parking facility. 365 U.S. at 723, 724. The Court concluded that:

Addition of all these activities, obligations and responsibilities of the Authority, the benefits mutually conferred, together with the obvious fact that the restaurant is operated as an integral part of a public building devoted to a public parking service, indicates that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn.

365 U.S. at 724.

The Burton case, as can be seen, goes further than Shelley v. Kraemer. The issue is no longer limited to judicial enforcement of private contracts. In Burton the question is whether private uses of property, in terms of racial preference, can be restricted by the courts on the ground that there is “state participation and involvement” in the private property. The overwhelming involvement of the state in all aspects of private property today leads to the conclusion that the Burton doctrine can be used to eliminate virtually all expressions of racial preference by private owners on private property, as a matter of constitutional law. Moreover, the doctrine can be used to restrict other voluntary uses of property which do not conform to prevailing majority sentiment.

A FEW EXAMPLES of the broadness of the concept of “state involvement” demonstrates how easily private property can be limited merely by redefining it as government-involved property. Smith v. Holiday Inns of America, Inc., 220 F. Supp. 1 (M.D. Tenn. 1963) was a class action to enjoin the defendant motel from continuing its policy of refusing to accept Negroes as guests. The land for the motel had been acquired by the city of Nashville as part of an urban redevelopment project. The Holiday Inns purchased the land from the city, paying full market value, without tax rebates; the Inns erected the motel with its own funds and at no cost to the public; the operating motel paid all relevant taxes; and, it was found, the state had no interest in the property and no voice in the management, operation and control of the motel.

This did not satisfy the court, however. Since the deed to the property contained several reservations and covenants placed there by the state and federal governments, to insure future uses of the land in harmony with the redevelopment project, the court held that the state was “involved in private conduct to a significant extent,” and the private motel was compelled to drop its policy regarding Negro guests.1 220 F. Supp. at 8.

Another recent case, Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), demonstrates how participation of any sort by a government entity in private property takes that property out of the voluntary sector and places it in the coercive sector of the economy. Simkins was an action by Negro physicians, dentists, and patients to compel private hospitals to end racial discrimination. The hospitals, which were entirely private, had accepted federal aid under the Hill-Burton Act (Hospital Survey and Construction Act), 42 U.S.C.A. §291. The court held that acceptance of federal monies placed the hospitals under the rule of the Burton case, and Negroes could not be excluded as either doctors or patients:

Weighing the circumstances we are of the opinion that this case is controlled by Burton . . . . Here the most significant contacts compel the conclusion that the necessary “degree of state [in the broad sense, including federal] participation and involvement” is present as a result of the participation by the defendants in the Hill-Burton program. The massive use of public funds and extensive state-federal sharing in the common plan are all relevant factors, . . . . But we emphasize that this is not merely a controversy of a sum of money . . . . As the case affects the defendants it raises the question of whether they may escape constitutional responsibilities for the equal treatment of citizens, arising from participation in a joint federal and state program allocating aid to hospital facilities throughout the state.

323 F. 2d at 967.

TO SUMMARIZE these cases, it has been held that “state action” or “state involvement” exists in private property when that property is: (a) leased from the government, and is physically part of a government project; (b) purchased from the government, with the government attaching some covenants restricting use to the deed of sale; and (c) the beneficiary of federal financial assistance. In each situation, the private property owner has been held subject to the same restrictions as a government body.

The most recent Supreme Court extensions of the “state involvement” doctrine have been in the celebrated “sit-in” cases in the South. In each of these cases, civil rights demonstrators entered the “white only” section of segregated lunch counters or restaurants; they demanded service and refused to leave until served. The store manager, following the restaurant’s policy, refused to serve them and asked them to leave; when they refused, he called the police, who arrested the demonstrators for criminal trespass. The defendants were convicted, the lower courts finding a clear case of trespass on property wherein the owner did not want their continued presence.

In reversing these cases, the Supreme Court found “state involvement” present in every instance. Peterson v. Greenville, 373 U.S. 244 (1963), for example, involved a city where the local ordinance required separation of the races in restaurants (clearly an unconstitutional ordinance). Said the Court:

It cannot be denied that here the City of Greenville, an agency of the State, has provided by its ordinance that the decision as to whether a restaurant facility is to be operated on a desegregated basis is to be reserved to it. When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby “to a significant extent” has “become involved” in it, and, in fact, has removed that decision from the sphere of private choice.

373 U.S. at 247-48.

But, it was argued, the store manager removed the demonstrators because he wanted to run a segregated restaurant, independent of any ordinance. Thus, it was a private decision, without state involvement. Chief Justice Warren disagreed:

These convictions cannot stand, even assuming, as respondent contends, that the manager would have acted as he did independently of the existence of the ordinance. . . . When a state agency passes a law compelling persons to discriminate against other persons because of race, and the State’s criminal processes are employed in a way which enforces the discrimination mandated by that law, such a palpable violation of the Fourteenth Amendment cannot be saved by attempting to separate the mental urges of the discriminators.

373 U.S. at 248.

After reading Peterson v. Greenville, one would think that the touchstone of state involvement was the local segregation ordinance. In other words, absent the ordinance, the store manager could segregate Negroes to his heart’s content; it was only because the city government decreed segregation that the private decision to segregate was unlawful. But in the companion case of Lombard v. Louisiana, 373 U.S. 267 (1963), also written by the Chief Justice, there was no ordinance or statute compelling racial segregation in restaurants. The store manager called upon the demonstrators to leave his premises without any local command of law to guide his decision.

The Supreme Court found state involvement present anyway. In lieu of an ordinance, the Court found that during the civil rights crisis in the city of New Orleans, the Mayor and the Superintendent of Police had issued statements condemning violence, opposing the “sit-in” movement, and calling for an end to the demonstrations. Although these statements were not made with the force of a law behind them, the Court held that they constituted sufficient “state involvement” to nullify the private decision of the store manager:

A State, or a city, may act as authoritatively through its executive as through its legislative body. As we interpret the New Orleans city officials’ statements, they were determined that the city would not permit Negroes to seek desegregated service in restaurants. Consequently, the city must be treated exactly as if it had an ordinance prohibiting such conduct . . . . These convictions, commanded as they were by the voice of the State directing segregated service at the restaurant, cannot stand.

373 U.S. at 273-74.

The development of the law on private racial preference from Buchanan v. Warley to the “sit-in” cases has been most extraordinary. From the position that individuals were free to express a racial preference in the use of their property, regardless of ordinance or statute, we have come to the point where private racial preference is invalid if the Mayor expresses the same preference.

The notion that private property is to be treated as if it were an agency of the government whenever the state is “involved” in that property is a most comprehensive doctrine. In a country where every business must be licensed by the state; every profession must be authorized by the state; every piece of real estate must conform to zoning laws, building codes, fire regulations, housing ordinances, etc.; every labor union must be certified by the state; and almost everybody receives money from the state; in such a regimen one is hard pressed to find any substantial voluntary action which does not have “state involvement” to some degree.

If this be true, then the sphere of private contract and use of property is severely restricted. None can deny that discrimination solely on the basis of race is morally indefensible. But the right to discriminate, the right to express a preference in the use of one’s property which is at variance with the prevailing majority sentiment is of the very essence of liberty. It is possible that if the state involvement doctrine were alive a century ago, in the days of Dred Scott, the Court would have ruled that a property owner was obligated to treat Negroes as chattels, that manumission was illegal. Today the pendulum is on the other side, in favor of racial equality. But the principle remains: If state involvement means state determination of the uses of property, then private property is a nullity.

For those who may think this analysis far-fetched, and who may disbelieve that this is the trend of judicial decision, I close with the analysis of one of our most advanced jurists, Mr. Justice Douglas. Believing that the majority view in Lombard v. Louisiana did not go far enough, Justice Douglas wrote a concurring opinion in which he expressed the view that there was “state action . . . wholly apart from the activity of the Mayor and police.” 373 U.S. at 278. This is the basic substance of his commentary:

Places of public accommodation such as retail stores, restaurants, and the like render a “service which has become of public interest” in the manner of the innkeepers and common carriers of old. . . . In our time the interdependence of people has greatly increased; the days of laissez faire have largely disappeared; men are more and more dependent on their neighbors for services as well as for housing and the other necessities of life. By enforcing this criminal mischief statute, invoked in the manner now before us, the Louisiana courts are denying some people access to the mainstream of our highly interdependent life solely because of their race.

When the doors of a business are open to the public, they must be open to all regardless of race if apartheid is not to be engrained in our public places. It cannot by reason of the Equal Protection Clause become so engrained with the aid of state courts, state legislatures, or state police.

There is even greater reason to bar a State through its judiciary from throwing its weight on the side of racial discrimination in the present case, because we deal here with a place of public accommodation under license from the State.

State licensing and surveillance of a business serving the public also brings its service into the public domain. This restaurant needs a permit from Louisiana to operate; and during the existence of the license the State has broad powers of visitation and control. This restaurant is thus an instrumentality of the State since the State charges it with duties to the public and supervises its performance. The State’s interest in and activity with regard to its restaurants extends far beyond any mere income-producing licensing requirement.

There is no constitutional way, as I see it, in which a State can license and supervise a business serving the public and endow it with the authority to manage that business on the basis of apartheid, which is foreign to our Constitution.

373 U.S. at 279, 281, 282-83.

See also the concurring opinion of Mr. Justice Douglas in Bell v. Maryland. 378 U.S. 226, 242 (1964).

THE CONCLUSIONS expressed by Mr. Justice Douglas have been incorporated into the Public Accommodations section of the Civil Rights Act of 1964 However, the statute finds the authority of Congress to interfere with the racial policies of private owners in the plenary power granted the federal government by the Commerce clause of the Constitution.

The view of Justice Douglas goes much further. He enunciates a trend of juridical thinking which holds that all private properly used for business purposes is, as he phrased it, “an instrumentality of the State.” If this be true, then private business establishments must indeed conform to the current judicial interpretation of the Constitution, even absent all civil rights laws. The pattern of decision reviewed by this paper demonstrates that in the conflicts between the imposition of normative values by the state and the liberty of private property, it is property which is being sacrificed.

NEW BOOKS AND ARTICLES

THE FOLLOWING IS A SELECT LIST OF BOOKS AND ARTICLES WHICH, IN THE OPINION OF THE EDITORS, MAY BE OF INTEREST TO OUR READERS.

Armen A. Alchian and William R. Allen, University Economics. Belmont, Calif., Wadsworth Publishing Co., 1964. $11.35 (text edition $8.50). An excellent new introductory economics text by two well-known UCLA Professors—both of the “Chicago School”—designed to relegate Samuelson’s text to the role of an inferior good.
Martin Anderson, The Federal Bulldozer: A Critical Analysis of Urban Renewal, 1949-1962. Cambridge, Mass., The MIT Press, 1964. $5.95. The first major analysis of the federal urban renewal program since its inception. In the opinion of Edward C. Banfield of Harvard University, “There may be some fine points to quibble about, but The Federal Bulldozer makes rubble of the urban renewal program.”
George J. Stigler, “Public Regulation of the Securities Markets,” The Journal of Business, April 1964. Prof. Stigler presents fundamental criticisms of the recently published Special Study of the Securities Markets on grounds of both methodology and validity of its conclusions, saying “Once we ask for the evidence for its policy proposals, the immense enterprise becomes a promiscuous collection of conventional beliefs and personal prejudices.” The article is mainly devoted to setting forth a few statistical models by which the efficiency of the securities market might be judged both before and after the establishment of SEC regulation. In the October 1964 issue of The Journal of Business two articles appear in reply, and sharply criticize several points which Stigler makes in the earlier article; but they fail on the whole to refute the thrust of his argument. In his rebuttal, also appearing in the October 1964 issue, Prof. Stigler comments: “The issue is precisely that of the use of ‘scientific method’ versus ‘common sense.’ Either we present explicit hypotheses and test them by the developing techniques of the social sciences, or we rely upon the a priori case for protecting investors plus the scandals revealed by a Pecora, or the a priori case for letting men conduct their own affairs plus the counter-scandals revealed by some new counter-Pecora.”
Ronald Hamowy, “Liberalism and Neo-Conservatism: Is a Synthesis Possible,” Modern Age, Fall 1964. A noteworthy attack upon the position that classical liberalism and modern conservatism can be synthesized into a single right-wing philosophy. Hamowy argues that both classical liberalism and modern conservatism arise from distinct and separate traditions of thought, and that their basic premises are fundamentally in conflict.
The fifth volume of the Journal of Law and Economics (dated October 1962) has been issued, and includes articles by George J. Stigler, Ronald Coase, Yale Brozen, and others. Of all American scholarly journals, this annual publication is undoubtedly the one most solidly in the classical liberal tradition. A complete set (five issues) may be obtained for $12.50 (students $5.00) by writing: Prof. Aaron Director, The Journal of Law and Economics, University of Chicago Law School, Chicago, Illinois 60637.
Philip B. Kurland, “The Supreme Court 1963 Term, Foreword,” Harvard Law Review, November 1964. A lengthy evaluation of the decisions handed down by the Supreme Court during 1963 which is generally critical of the path the court is taking. Prof. Kurland notes four movements which have gained strength during the last decade: “the emerging primacy of equality as a guide to constitutional decision . . . the effective subordination, if not destruction, of the federal system . . . the enhancement of judicial dominion at the expense of the power of other branches of government, national as well as state . . . [and] the absence of workmanlike product, the absence of right quality [in the decisions of the court].” In regard to the first of these movements, he notes the more and more frequent tendency of the court to appeal to the equal protection clause rather than to the due process clause of the Fourteenth Amendment. “There are two primary problems that arise under the equal protection clause. The first is the ambiguity inherent in the relevant term, whether it be ‘equality’ or ‘equal protection of the laws.’ The second major difficulty results from the possible conflict of the notion of equality with that of liberty or some other fundamental constitutional value.”
Regenery has published two new books on or by Albert Jay Nock: his autobiography, Memoirs of a Superfluous Man (Chicago, 1964. $5.95), is reprinted from the 1943 edition which is no longer available; and Robert J. Crunden, The Mind and Art of Albert Jay Nock. Chicago, 1964. $4.95. The latter is an excellent intellectual biography, and contains an appendix listing his uncollected articles.
Richard M. Weaver, Visions of Order: The Cultural Crisis of Our Time. Baton Rouge, La., Louisiana State University Press, 1964. $4.50. A posthumous collection of Prof. Weaver’s essays concerned with an elaboration of the uses of order and tradition in society, and a critique of modern-liberalism and sentimental democracy.
Hanson W. Baldwin, “Should We End the Draft?,” New York Times Magazine, Sept. 27, 1964. The military expert of the New York Times summarizes the major arguments for and against ending conscription, while lending the weight of his authority to the opinion that “there is not much doubt that long-term professional services—active and reserve—are better suited to the military requirements of the atomic age than large, semi-trained, rapid-turnover forces drafted or induced to serve by the prospect of the draft.”
Prof. Ernest van den Haag of the New School discusses the question of Negro intelligence in an interesting interview published in National Review (“Intelligence or Prejudice?,” December 1, 1964). His conclusions are essentially: (1) There is no scientific evidence supporting the currently popular theory that no innate intelligence differences exist between ethnic groups; (2) There is some, although not conclusive, evidence that the contrary is true; and (3) that even if (2) were proven to be the case, genetically determined intellectual inferiority of the members of a particular race in no way implies their moral inferiority. See also the criticisms and reply in the Feb. 9, 1965, issue of National Review. On the same theme there is an excellent review of Weyl and Possony’s Geography of Intellect in the University of Chicago Law Review, Spring 1964, by Warren Lehman. Rather than dealing with the shoddy and unscientific approach of the authors, Lehman concentrates on the possible legal implications of their conclusion that interracial intelligence comparisons indicate sharp distinctions exist. Lehman attacks the thesis—interestingly enough shared by many violent anti-racists—that scientific evidence on the intellectual inferiority, superiority, or equality of one race over another is relevant to their legal (and particularly constitutional) status.
The latest (we think) issue of Focus Midwest (Vol. III, Number 6) is devoted to a “roster of the right wing” which runs the gamut from the American Farm Bureau to the Soldiers of the Cross and the American Nazi Party. If one is inured to the incredibly unsophisticated approach manifested by the leftist counterparts of The Christian Crusade, he will find much information of interest and value in this publication.

DeGaulle and Erhard Who are the men behind them?

Europe’s economy is on the move—as witness the stabilization of the franc, the West German “economic miracle,” and General DeGaulle’s recent challenge to the primacy of the dollar in international exchange.

To understand such developments as these, it is necessary to be acquainted with the thought of two leading European economists:

Jacques Rueff and Wilhelm Röpke.

These are the men behind the leaders and the economic resurgence of Western Europe. Their basic ideas are now available to American readers in two new books.

JACQUES RUEFF, financial advisor to the French government and originator of France’s recent currency reform, outlines his theories in THE AGE OF INFLATION, a series of essays on monetary instability and the origins of financial crises. The book includes the full text of Dr. Rueff’s 1958 “Report on the Financial Condition of France.” (Paperbound, $1.45)

WILHELM ROPKE, whose ideas sparked West Germany’s economic recovery, wrote his ECONOMICS OF THE FREE SOCIETY before World War II. This gracefully-written textbook of the “new economics” (a continuing best seller in four European Languages) is now published in a revised and updated American edition. Prime Minister Erhard has characterized Dr. Röpke in these words: “Wilhelm Röpke stands as a great witness to the truth. My own services toward the attainment of a free society are scarcely enough to express my gratitude to him who, to such a high degree, influenced my position and conduct.” (Hardbound, $4.95)

THE AGE OF INFLATION and ECONOMICS OF THE FREE SOCIETY are available at booksellers’, or directly from:

Lyndon Johnson Got 130% of The Votes Needed to Lose!

The great victory of Conservatism at the polls in November must not cause the Forces of Freedom to be lulled into complacency. Even though 26 million right-thinking Americans spoke out against moral decay, we must remember that 40 million misguided people—besotted by pornography and drugged by fluoridated water—confusedly endorsed the status quo!

We must use our strength to press onward! No resting on our laurels! In the next election the triumph will be even greater! We will boost our strength to 40% of the electorate. Conservatism has come, seen, and conquered!

We at NEW INDIVIDUALIST REVIEW stand solidly in the mainstream of this great march, urging onward the flood of victory. The Editors of NIR, however, would remind our compatriots only that

(1) The enemy is stronger than ever, although recent political events may make us unduly optimistic.

(2) To stay alert, we must stay well informed and pure.

(3) NIR doesn’t cost very much.

REMEMBER . . . When roving Communist bands come through your community, they must not find an economically illiterate populace . . . Subscribe to NEW INDIVIDUALIST REVIEW!

ESSAYS IN THE HISTORY OF ECONOMICS
By GEORGE J. STIGLER

Professor Stigler is one of the most distinguished proponents of the Chicago school of economics, a group of economists past and present who have stressed the value of the free, competitive market. This volume is a collection of some of his articles on the history of economic theory. Professor Stigler himself chose the essays which include his reflections on originality in scientific progress; the politics of political economists; the development of utility theory; Ricardian value and distribution; perfect competition; Fabian socialism; marginal productivity theory; and the Giffen paradox.

400 pages $6.95

THE CREATIVE ORGANIZATION
Edited by GARY A. STEINER

These various papers are the result of a recent seminar at the Graduate School of Business of the University of Chicago. Among the participants were Bernard Berelson, Jerome S. Bruner, and Paul Meehl representing social scientists, Ralph W. Tyler and W. Allen Wallis speaking for the educators, and B. E. Besinger, Peter Peterson, and David Ogilvie, for the executives. Conclusions drawn at this seminar point to no easy solution for the establishment of a creative organization. The central problem may well be, in Mr. Steiner’s words, “to learn the difference between creating productivity and producing creativity.”

June, 288 pages $5.00

CAPITALISM AND FREEDOM
By MILTON FRIEDMAN

These provocative and controversial essays discuss the proper role of competitive capitalism in a free society. “. . . this book is a brilliant defense of libertarianism by a cogent, intellectual spokesman.” — EDWIN McDOWELL, Christian Economics. “. . . an eloquent, spirited, and provocative book to show how the ideal of personal freedom may be realized in—and only in—a system of competitive capitalism.” —EDWARD C. BANFIELD, National Review. “. . . anyone with faith in the power of government to improve our lot will find it difficult and hazardous exercise to match wits with Milton Friedman.” —HENRY C. WALLICH, Challenge.

Cloth $3.95

Paper $1.50

THE UNIVERSITY OF CHICAGO PRESS

Chicago and London

VOLUME 4, NUMBER 1, SUMMER 1965

FINANCING HIGHER EDUCATION

BENJAMIN A. ROGGE

TRENDS IN THE U. S. SUPREME COURT

PHILIP B. KURLAND

HOW SOVIET PLANNING WORKS

G. WARREN NUTTER

• • •

LEWY’S “THE CATHOLIC CHURCH AND NAZI GERMANY”

STEPHEN J. TONSOR

A JOURNAL OF CLASSICAL LIBERAL THOUGHT

Summer 1965

50 cents

Vol. 4, No. 1

Financing Higher Education
	3	BENJAMIN A. ROGGE
Trends in the U. S. Supreme Court
	15	PHILIP B. KURLAND
How Soviet Planning Works
	20	G. WARREN NUTTER
Collectivism in Social Theory
	26	EDWIN HARWOOD
Justice, “Needs,” and Charity
	32	ROBERT L. CUNNINGHAM
COMMUNICATION:
The 1964 Election
	39	WILLIAM A. RUSHER
		BENJAMIN A. ROGGE
REVIEWS:
The View from London Bridge
	42	STEPHEN J. TONSOR
Van den Haag’s “Passion and Social Constraint”
	47	RICHARD McCONCHIE
New Books and Articles
	49

NEW INDIVIDUALIST REVIEW is published quarterly by New Individualist Review, Inc., at Ida Noyes Hall, University of Chicago, Chicago, Illinois 60637.

Opinions expressed in signed articles do not necessarily represent the views of the editors. Editorial, advertising, and subscription correspondence and manuscripts should be sent to NEW INDIVIDUALIST REVIEW, Ida Noyes Hall, University of Chicago, Chicago, Ill. 60637. All manuscripts become the property of NEW INDIVIDUALIST REVIEW.

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Financing Higher Education in the United States

BENJAMIN A. ROGGE*

THE PURPOSE OF THIS study is to explore certain current and expected problems in the financing of higher education in the United States. In particular, it will be directed to an evaluation of one method of solving these problems: the method of full-cost pricing of the services of higher education.1

The central thesis of the study is that full-cost pricing has much to recommend it, both as a solution to the pressing financial problems of higher education and as a solution to other serious problems flowing from below-cost pricing. It is argued that the traditional reasons advanced to support the need for subsidy to higher education, even if accepted, do not demand below-cost pricing as the method of subsidy. A secondary thesis is that the case for subsidy has itself been both exaggerated and distorted and requires careful reexamination.

No time need be spent here establishing the fact that the colleges and universities of this country, both public and private, do indeed face a serious financial problem. This is one of the best publicized facts in the United States today. In sum, the story is that of an industry which confronts a financial crisis because of a fast-rising demand for its services.

This statement of the problem is used deliberately to throw in sharp relief the unique character of the industry. It is one in which the service is sold for much less than its cost of production.2 It is this and this only which makes an increase in demand a matter of deep concern rather than a reason for optimism. An increase in the size of a student body usually means a larger deficit—a deficit that must be financed through public and/or private subsidy.

To most students of the problem, including most college and university presidents, the problem is simply one of raising more money to meet the larger deficits. To only a few does it seem to be reason for a careful and thorough reexamination of the nature and purposes of higher education and of the financial arrangements most likely to promote those purposes. It is the thesis of this study that such a reexamination is badly needed. In particular, to view the problem as simply a desperate need for expanded subsidy to higher education is to ignore the many problems that are associated with below-cost pricing—problems that will not be solved even if the expanded subsidy is secured.

This study is designed to concentrate attention on how educational services are priced, not on how the buyers of those services secure the funds to pay the prices asked. That is, full-cost pricing does not rule out private and/or public subsidies to individual students. There are really two questions here: One is how the service should be priced, and the other is who should ultimately bear the cost of the service. Both will be examined, but the first will receive the more careful study.

TO SUBJECT HIGHER education to economic analysis may seem to be laying profane hands on a sacred symbol Such is the mystique of this “industry” that it must not be appraised with the vulgar calculus of the market place.

Yet, “the vulgar calculus of the market place” still remains as the most humane method man has yet devised to solve those problems of allocation and division which are ubiquitous and permanent in human society. This we have accepted as a people by our continued commitment to the free market form of economic organization. We profess our faith in this form of economic organization for the economy at large, but deny that it is suited to the purposes of higher education. Free market pricing is deemed appropriate for most goods and services, but is rejected in pricing the services of higher education. The reasons advanced to support this position will be examined, but attention will be directed first to certain effects of this policy on the educational system itself. The question to be examined can be phrased in this way: How does below-cost pricing affect the college and university system of this country?

The impact of below-cost pricing on higher education will be examined in four parts: problems of finance, problems of rationing, problems of motivation, and problems of educational efficiency.

To most observers the only problem presented by below-cost pricing is the financial problem—the deficits that must be underwritten by the taxpayer or the private donor. Admittedly the financial problem is a serious one. This fact is clearly evidenced in the increasing tendency for college and university presidents (even of tax-supported institutions) to be fund-raisers first and educational leaders and scholars second.

The college or university president must of necessity be a professional begger and the pressure of performing in this role is undoubtedly one of the factors leading to the rapid turnover of presidents in American colleges and universities.

The financial problem presented by below-cost pricing is a serious one and is rapidly becoming a problem of fantastic proportions. Given the fact of below-cost pricing, there seems to be no solution to this problem that does not involve a significant increase in the burden of the taxpayer. Nor does it seem likely that it will be solved without increasing reliance on funds supplied by the Federal government.

THE FINANCIAL PROBLEM, however, is not the only problem presented by below-cost pricing, nor is it even necessarily the most serious. At least as serious is the rationing problem which comes from selling educational services at well below the price which would clear the market.

The price of a good or service in a free market is not only a source of funds to cover the costs of the good or service. It is also the instrument which answers the question of to whom the available supply is to go. That is, the price rations the total number of units available among those who wish to buy the product. It does this on the principle that the product is to go to those who are willing to give up the most i.e., pay the highest price) to obtain it.

The acceptability of this principle need not be debated here. It is important only to note that it is a device for rationing Moreover, it is a device that clears the market and that operates without any need for the seller to choose among buyers on some personal basis.

To set a price below the market price is to create an excess of quantity demanded over quantity supplied, whether the product be sirloin steak, rental housing, or education. This, in turn, requires of the seller that he find some way to determine whose requests for the product are to be granted and whose denied.

The problem of rationing the available educational services is fast becoming one of the major problems of higher education. This has brought into sharp relief the issue of the rationing principle to be used. The generally accepted principle is that educational opportunities are to go to those possessed of the greatest potential for intellectual activity; but closer examination reveals that this principle can be questioned on both practical and theoretical grounds.

If the principle is accepted, the first task is to measure potential for success in college. No one who has served on the admissions committee of a college or university would argue that this is a simple task. On the contrary, it is one of the most difficult tasks of college administration. Techniques for measuring potential are being improved each year, but mistakes are still made and will continue to be made under the best of measurement programs.

Somewhat less difficult, but no less trying, is the task of determining which students are to be permitted to continue in school, once admitted, and which are to be denied further access to the services of higher education.

The rationing technique under discussion here—whether applied in the selection of students for admission or in the selection of those to continue—operates in such a way that it often appears to the rejected student as a personally discriminatory technique. The rationing system of the free market at least has the advantage of operating as does the system of justice represented by the blindfolded goddess holding the scales. It does not ask “Who are you?” or “What kind of a person are you?” or “Did your mother or father attend this college?” but only “Are you willing to pay the price?” Cruel as this may sometimes seem in practice, it would appear on balance to be less cruel and less humillating than the personalized techniques of non-market rationing.

YET EVEN IF POTENTIAL for intellectual growth and general success in college could be measured with complete accuracy and in such a way as to leave no room for personally discriminatory decisions, there would still exist serious questions of the appropriateness of this principle. It seems to rest on the assumption that large jars should be filled with the purest wine, while smaller jars should receive nothing but such rainwater as they can catch from the skies. If education is opportunity for personal growth, are we to deny it in some arbitrary way to those unfortunate enough to start from a lower level or to possess less absolute capacity for growth? Is 30 per cent growth for the bright student more to be preferred than 30 per cent growth for the less able student?

Is it not possible that the brighter student is more capable of educating himself than the weaker student; that in fact it might not be nonsense to say to the quick-minded student, “Go educate yourself,” and to the less-gifted student, “Come, we will try to help you”? As a matter of fact, current practice on United States campuses is moving toward independent study programs for the gifted students—a back-handed recognition of the fact that to such students the traditional apparatus of the college may not be important. This is not to argue that admission should be limited to the bad student, but only to indicate that the principle that admission should be limited to the good student can be questioned.

Suppose this same principle of making educational opportunities available only to those with high potential to benefit from these opportunities were applied to other goods and services. The sale of opera tickets would then be restricted to those who could establish ability to enjoy opera, wine would be sold only to the recognized connoisseur, and most wives would be denied the privilege of attending baseball games with their husbands.

For almost all other goods and services we assume that the individual is the best judge of whether or not he is receiving his money’s worth. Only in education do we give to the seller the power to make this decision for the buyer.

It might be answered that this is made necessary by the fact that college students are too immature to make this decision for themselves. This answer ignores the fact that the family of the college student participates in this decision and that we permit this same family to make most other decisions for the children in the family. Why is the family less able to make decisions about education than about medical care or clothing or housing for the members of the family?

In sum, the rationing principle in current use in higher education in the United States today is questionable in both philosophy and in practice.3 Yet below-cost pricing makes some such arbitrary and capricious method of rationing a necessity.

UNDER THE PRICE SYSTEM, a unit of any given product goes to the one who is willing to give up the most to get it. This is a rationing principle which tends in part to be a measure of strength of motivation. It tends to weed out those who have no great interest in the product. The effect of far-below-cost pricing in higher education is to admit many who have no strong desire to be educated—thus the curious situation in which professors and deans must be constantly belaboring students to take that which they are supposed to desire. We are in the position of a grocer who must keep close watch on his customers to see that they do not pay for the merchandise and then try to get out of the store without it.

Moreover, the effect on the motivation of teachers is equally significant. To the extent that their incomes derive from sources other than student fees, they are freed from some part of the necessity of really attending to the interests and wishes of their students. It is curious how irritated teachers become at any suggestion that their product be evaluated by their customers. They seem to really desire that each teacher be judge in his own cause or, at worst, that he be judged by his colleagues (who, of course, should not be so vulgar as to consult student opinion on his work as a teacher).

A number of the points under discussion here are well made in Adam Smith’s The Wealth of Nations. Smith comments at length on the effect of divorcing teachers’ income from student fees as follows:

In other universities, the teacher is prohibited from receiving any honorary or fee from his pupils, and his salary constitutes the whole of the revenue which he derives from his office. His interest is, in this case, set as directly in opposition to his duty as it is possible to set it. It is the interest of every man to live as much at his ease as he can; and if his emoluments are to be precisely the same, whether he does or does not perform some very laborious duty, it is certainly his interest, at least as interest is vulgarly understood, either to neglect it altogether, or, if he is subject to some authority which will not suffer him to do this, to perform it in as careless and slovenly a manner as that authority will permit. If he is naturally active and a lover of labour, it is his interest to employ that activity in any way from which he can derive some advantage, rather than in the performance of his duty, from which he can derive none.

If the authority to which he is subject resides in the body corporate, the college, or university, of which he himself is a member, and in which the greater part of the other members are, like himself, persons who either are, or ought to be teachers, they are likely to make a common cause, to be all very indulgent to one another, and every man to consent that his neighbour may neglect his duty, provided he himself is allowed to neglect his own. In the university of Oxford, the greater part of the public professors have, for these many years, given up altogether even the pretence of teaching.4

He then comments on the effect of loss of student control in the choice of teachers:

If in each college, the tutor or teacher, who was to instruct each student in all arts and sciences, should not be voluntarily chosen by the student, but appointed by the head of the college; and if, in case of neglect, inability, or bad usage, the student should not be allowed to change him for another, without leave first asked and obtained; such a regulation would not only tend very much to extinguish all emulation among the different tutors of the same college, but to diminish very much, in all of them, the necessity of diligence and of attention to their respective pupils. Such teachers, though very well paid by their students, might be as much disposed to neglect them, as those who are not paid by them at all or who have no other recompense but their salary.

If the teacher happens to be a man of sense, it must be an unpleasant thing to him to be conscious, while he is lecturing to his students, that he is either speaking or reading nonsense, or what is very little better than nonsense. It must, too, be unpleasant to him to observe, that the greater part of his students desert his lectures; or perhaps, attend upon them with plain enough marks of neglect, contempt, and derision. If he is obliged, therefore, to give a certain number of lectures, those motives alone, without any other interest, might dispose him to take some pains to give tolerably good ones. Several different expedients, however, may be fallen upon, which will effectually blunt the edge of all those incitements to diligence. The teacher, instead of explaining to his pupils himself the science in which he proposes to instruct them, may read some book upon it; and if this book is written in a foreign and dead language, by interpreting it to them into their own, or, what would give him still less trouble, by making them interpret it to him, and by now and then making an occasional remark upon it, he may flatter himself that he is giving a lecture. The slightest degree of knowledge and application will enable him to do this, without exposing himself to contempt or derision, by saying any thing that is really foolish, absurd, or ridiculous. The discipline of the college, at the same time, may enable him to force all his pupils to the most regular attendance upon his sham lecture, and to maintain the most decent and respectful behavior during the whole time of the performance.

The discipline of colleges and universities is in general contrived, not for the benefit of the students, but for the interest, or, more properly speaking, for the ease of the masters. Its object is, in all cases, to maintain the authority of the master, and whether he neglects or performs his duty, to oblige the students in all cases to behave to him as if he performed it with the greatest diligence and ability. It seems to presume perfect wisdom and virtue in the one order, and the greatest weakness and folly in the other. Where the masters, however, really perform their duty, there are no examples, I believe, that the greater part of the students ever neglect theirs. No discipline is ever requisite to force attendance upon lectures which are really worth the attending, as is well known whereever any such lectures are given.5

In sum, then, while the student may find it pleasant to have his education subsidized, the price he pays for this is loss of control over his education. He who pays the piper will call the tune, and if the student is not the one who pays the piper, he cannot call the tune. Moreover, the divorce of teacher income from student fees has a tendency to encourage inefficient and ineffective teaching and to encourage teachers to treat their teaching duties as a necessary evil to be disposed of as quickly as possible to permit them time for more important activities. An exaggeration? Perhaps, but who can say that he has never seen such tendencies at work?

The small, private colleges have the reputation of providing the best quality of teaching in higher education. Why is this? It is difficult to believe that it has no connection at all with the fact that such institutions derive 50 per cent or more of their revenues from student fees. Thus, the quality of the teaching has an important effect on the revenues of the college and the administration is forced to encourage and demand of its faculty a high quality of teaching service.

The effect, then, of below-cost pricing is to make of our colleges a collection of students, many of whom have no real desire to make use of the opportunity, and a collection of teachers who are under no real necessity to provide a high quality of teaching services.

THE PROBLEMS OF educational efficiency are usually discussed under the heading Problems of Academic Freedom; but “academic freedom” is really a misnomer. It should not be confused with freedom in the sense of those rights which are guaranteed to Americans in the Bill of Rights. It is altogether fitting and proper that a person should be free to worship as he pleases (or not to worship at all), to think as he pleases, to speak and write as he pleases without fear of reprisal by government. In fact, these rights are the very cornerstone of any free society and they are literally worth dying for; but to say that Paul Robeson should be free to sing the Internationale is a far different thing from saying that we must pay him for singing it. We may believe that Gus Hall should be free to publish books advocating communism, but we are not violating his freedom when we refuse to buy them. Now perhaps we are missing a chance to become better educated by refusing to buy them and that brings us to the point here. So-called academic freedom is really a question of educational efficiency, of the improved understanding which comes from being exposed to a variety of points of view.

No teacher has an inherent right to present a point of view and to be paid for presenting it. If his customers wish not to pay to hear his point of view, this may be unwise on their part; but it is not a violation of any inherent freedom. In fact, to force them, say, through the taxing power of the government to pay a teacher to present a point of view which they do not wish presented is a violation of an important freedom—the freedom of each man to spend his money as he pleases. Consider, for example, the injustice that would be done if the trustees of a college which demands acceptance of the Apostle’s Creed as a condition of employment were to be forced to hire or to continue to employ an acknowledged atheist in the interest of academic freedom, or if a Quaker college were forced to hire General Mark Clark as its president.

Insisting that what is called academic freedom does not really involve freedom, however, it not to minimize its importance. On the contrary, even though it is really a question of educational efficiency, it is a very important question. It is important that students be given an opportunity to hear and read a variety of points of view, particularly on questions of social policy. In the words of John Stuart Mill, “There is always hope when people are forced to listen to both sides; it is when they attend only to one side that errors harden into prejudices.”

THIS BRINGS US BACK finally to the matter of below-cost pricing. The necessity for finding funds to fill the gap between students fees and total costs is always potentially dangerous to the integrity of an institution, to its continued ability to offer a program which embraces a wide range of social philosophies and which is otherwise educationally efficient.

The reasoning runs as follows: While the piper must inevitably be subject to pressure from those who pay him, his opportunity to play a varied and personally satisfying concert is the greater the more numerous the sources of his support and the less dependent he is upon the support of one payer or one group of payers. In other words, his best protection lies in a wide diffusion of the economic power which he confronts. For example, if an institution becomes dependent on a government for support, the government will be strongly tempted to call the tunes. This control can and has been used to dictate not only the “proper” social philosophies for teachers but the “proper” content of the curriculum as well. Even the assumption that the government is controlled by majority vote of the citizenry is cold consolation to a professor or an institution that prefers the point of view of the minority.

In the same way, for a private college to become dependent on a few men of wealth, or on a relatively homogeneous alumni body or on corporation giving, is to create a potential for control and dictation. Of course, a mixing of all of these with student fees does provide considerable diffusion of power, and this is the real strength of the private college as compared to the public; but even this mixing may leave a few men or a few corporations in a position to wield extraordinary influence on the policies of the college. It must be insisted that there is no violation of inherent right if these men or corporations insist on exerting the influence they possess. They have helped to pay the piper and they have a right to call some of the tunes, but this is a situation in which the educational efficiency of the institution may not be maximized. Now sometimes these money-givers from among the philistines have a better idea of what the college should be doing than does the faculty and administration, but there is no reason to believe that their influence will always be benign.

Below-cost pricing combined with public and/or private subsidy creates a situation in which the integrity of the educational institution is not protected by that diffusion of economic power ranged against it which is the real protection of all units—households and firms alike—in a competitive market economy. The private colleges and universities—both because they depend more heavily on student fees and because they draw subsidies from a greater variety of sources—do seem more capable of maintaining an educationally efficient program than do the large, state-supported institutions. The argument is not that the public donor is more given to intervening or is less tolerant than the private donor. The argument is that the public donor agency may have control of as much as 80 per cent of the revenue sources of the institutions with which it is involved, whereas the private donor rarely has control over more than a small fraction of the revenue sources of the institutions with which he is involved.

BUT WOULD NOT FREEING the colleges from subsidy-oriented control and placing them under customer control be a move from the frying-pan into the fire? Is the college student really equipped to evaluate the service he is buying?6

This is a difficult question to answer. If I may be permitted to draw from my own experiences as a college teacher and college dean, I would say that the student is a much better judge of the quality of the educational services he is receiving than he is commonly held to be. In the main, students are able to distinguish between those faculty members who provide excellent learning opportunities and those who provide mediocre or worse. The testimony on which the student has been convicted as a poor judge is the testimony of those who are themselves the object of the judging and who have traditionally resented the very practice of student appraisal.

And here again it must be remembered that the student’s family often participates in the decision-making, adding the maturity of adult critical faculties to the immediate impressions of the student.

However, the greatest benefit to be derived from customer control is that the judgment of no one customer is critical to the operation of the institution. No small group of legislators, no small groups of corporations or individuals, must be placated for the institution to survive and prosper. Nor need all institutions serve the same type of customer. The critical customer can be told to go elsewhere, because no one customer is of great significance. To repeat, it is not the “quality” of the power wielders but the diffusion of power under customer control that protects the integrity of the institution.

In sum, below-cost pricing inevitably creates a threat to what has been called “academic freedom,” or “educational efficiency.” To expect those who provide the subsidies to refrain from interfering with the operation of the school is to make a demonstrably weak assumption. On the other hand, to do as many seem to feel appropriate, to somehow “force” the donors (perhaps through the operation of an organization like the American Association of University Professors) to keep their hands off the institutions they have subsidized is to deny another important freedom—the freedom of each man to choose the purposes to which his money resources are to be put. This is particularly true when the donor is the taxpayer who does not have the immediate option of stopping his contributions. He is ordered to pay and then is told that he must not question the purposes to which his money resources are to be put. Under the system of below-cost pricing there is no way of guaranteeing so-called “academic freedom” that does not involve a denial of other freedoms—or that does not demand of the donor a superhuman restraint from directing the uses to which his funds are to be allocated.

TWO PRIMARY ARGUMENTS are advanced in support of below-cost pricing. One is based upon the assumption that the benefits of higher education flow not only to the students who are the direct customers of the schools, but also to society at large—that every member of society profits from being surrounded by and led by an educated citizenry. The other is the pure egalitarian argument that the principle of equality of opportunity demands that each young man and each young woman be given the opportunity of attending college, regardless of ability to pay for the services rendered. These arguments will be examined in turn.

The traditional thesis is that the student “captures” only a part of the gain that flows from his college education. Some part of the gain flows to society at large. Thus, in the Northwest Ordinance of 1787 we find the following statement: “Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

The student tends to push his purchases of education only to the point where the private gain from another unit would be equal to the cost of another unit. However, it is in society’s interest that he push his purchases beyond this to the point where the social gain from another unit would be equal to the cost of that unit. This requires that the student receive a subsidy sufficient to induce him to purchase the additional units of education.

But even if this principle be accepted, below-cost pricing does not inevitably follow. The subsidy could be provided directly to the student to permit him to pay the market price to whatever institution he chooses to attend. We have implemented our desire to provide bread to those who do not have the means to buy it, not by asking bakeries to sell all bread at below-market prices and then subsidizing the bakeries, but rather by providing a direct subsidy to the families involved. In particular, we have not insisted on the government actually operating bakeries to take care of this problem. The thesis under study does not establish a need for government-operated educational institutions, and in fact, on other grounds, there is good reason to prefer privately operated to publicly operated colleges and universities.

Nor does this thesis establish any case for below-cost pricing of (or even for subsidy to) all the services now provided by higher education. It seems to establish a case only for those programs of education which contribute to the citizenship qualities of the individual. Surely those courses which are primarily vocational in nature make only an insignificant contribution to the development of the citizen.

Professor George Stigler of the University of Chicago has commented on this issue as follows:

The basic defense for public and private subsidy of higher education is of course that it confers large social benefits, quite aside from any benefits accruing to the individual. This defense is largely wrong, simply as a matter of fact. The majority of college students concentrate their efforts on vocational studies whose general social value is measured, comprehensibly and with tolerable accuracy, by the earnings of the graduates. In 1954, of 187,500 bachelor’s and first professional degrees received by men in the United States, 63.1 per cent were vocational degrees. For women the corresponding percentage was 54.8. The largest fields were:

Business Administration	35,255
Engineering	22,264
Education	16,885
Medicine	16,458
Law	8,687
Agriculture	7,687

The general scientific and cultural values of these disciplines scarcely call for something like a 50 per cent subsidy of the costs of institutions of higher learning.7

The principle of social benefit at best calls for subsidy only to the traditional liberal arts programs of colleges and universities and even there does not require below-cost pricing as the technique of implementation. Direct subsidy to the individual student would serve equally as well.

Finally, it might be argued that the social benefits deriving from formal higher education have been much exaggerated. These benefits probably come primarily at the lower levels of education, particularly in the instruction each child receives in the basic skills of communication. Once a young person has acquired these skills, a whole world of knowledge is opened to him, a world in which formal classroom education is only one of many alternatives. It would be difficult to prove that the college graduates in this country have been “better” citizens (if even a yardstick could be found) than the high school graduates. Far from under-emphasizing the importance of formal higher education, we may have grossly exaggerated its importance to the maintenance of our free society.

THE SECOND ARGUMENT advanced in support of below-cost pricing is that equality of opportunity must be assured and that this demands equal educational opportunity for all.

In the first place, it should be pointed out that this too would justify only subsidy in some form, and provides no specific support for below-cost pricing of the services of higher education. On the contrary, below-cost pricing is a technique that subsidizes the sons and daughters of the wealthy as well as the sons and daughters of the poor. If the goal is to make education available to those who cannot afford it, below-cost pricing is a very blunt and wasteful instrument. Thus, even if the egalitarian view is accepted, far from justifying below-cost pricing, it condemns it as an inefficient means of achieving the desired end.

But the thesis that equal access to higher education, regardless of financial ability to pay for it, is a sine qua non of equality of opportunity is not of unquestionable validity either. Support for this thesis usually involves pointing to the demonstrably higher lifetime earnings of college graduates vis-à-vis non-college graduates. The inference is drawn that the college education is itself the cause of the higher earnings.

One of the most important principles of statistics is that correlation is not the equivalent of causation. In this case, the high correlation between years of education and lifetime earnings may derive in part from the fact that those who attend college possess a generally higher potential to achieve than those who do not. These same people would probably attain to higher income positions even if they were not to go to college. In the same way, those who attend college tend to come from higher-income families than those who do not, and they have such advantages as may come from a firmer financial base as a platform for the launching of a career. Finally, there is good evidence in the current and recent economic history of this country that a young man or woman without a college education is capable of making rapid economic progress.8

Moreover, those who wish to be educated do not face just the one alternative of formal, classroom education. Each person in our modern society is surrounded by opportunities for acquiring the knowledge, skills, and understandings that are the end-product of higher education. One increasingly important set of such opportunities is to be found in the education programs sponsored by business firms for their employees. In addition, there is evidence that the young adult, with some work experience behind him, makes much better use of educational opportunities than does the young person of 18 to 22.

In other words, there is no clear evidence that income earning possibilities are a direct function of education; and even if this could be established, it would still be difficult to prove that formal college education is the only kind of educational opportunity which promotes this end.

Admittedly, there are certain professions (e.g., law, medicine, and engineering) which are open only to those with a certain minimum of formal education; but in most of those cases, the lifetime earnings of those who received the training would easily permit them to pay for their education on a deferred-payment basis. All that is needed here is a capital market that will permit the treating of professional education as an investment in personal capital.

Confirmation of this thesis is found in one unexpected place: in a book whose central thesis is that higher education must be even more subsidized than at present, including a substantial increase in Federal aid to higher education. The book is A New Basis of Support for Higher Education, by Thad L. Hungate, Controller and Professor of Education, Teachers College, Columbia University.

In one paragraph he says, “While students and parents may continue to finance student living costs, neither fees nor living expenses should bar a student who has met defined state standards and has been admitted to and accredited for attendance. State aid should supplement family means as needed for this purpose.”9 Yet in the very next paragraph he adds, “It is considered likely that each beneficiary of a college education so lifts his lifetime earnings that the increased taxes he pays will more than repay to society the initial capital it has invested in him.”10 If his increased earnings will permit him to repay the taxpayer, they will also permit him to repay a lending agency on the private capital market! Far from establishing a case for public subsidy, this statement weakens the case for public subsidy and strengthens the case for letting each student finance his own education from some combination of current and anticipated resources.

In sum, the argument that higher education must receive public subsidy to assure equality of income-earning possibilities is questionable in both theory and practice. There is no clear evidence that a formal, college education is itself a cause of higher lifetime earnings; but if it could be established, it would establish not a need for public subsidy, but rather a need for an improved capital market to permit students to pay for their schooling out of the higher earnings produced by that schooling.

IT MIGHT BE ARGUED that the primary inequality associated with less than universal higher education is a social inequality, that the non-college person is denied entry to the social circles of the college graduates. This may or may not be true. Certainly there is some evidence that many Americans look upon the college degree as little more than a card of admission to “polite” society. This case is usually stated less boldly by the philosophers of American higher education. Their stress is upon the “democratizing” influence of our educational system. Thus, Howard Mumford Jones writes,

. . . the American university operates, and operates successfully, because it is staffed by Americans reared on that simplest of all formulas for getting men to work together, the democratic formula . . . . The great virtue of this remarkable invention is that it rests upon a particular theory of education, including higher education, as a form of public service. The great reproach brought against the ivy colleges in the old days was, indeed, that they did not recognize this doctrine, but were on the contrary expressive of snobbery. The eventual response of the ivy colleges to this reproach is, I think, illuminating. They did not defend the necessity, perhaps even the duty, of creating an intellectual elite; . . . on the contrary, they demonstrated that they are just as public and popular as anybody else. With us, in truth, the popular theory has triumphed over the concept that the nation needs an intellectual elite, and the notion of the university as a service institution prevails in the United States to a degree that astonishes the foreign scholar.11

It may well be that making the college degree available to all has a levelling effect on the social system. The colleges and universities may be primarily institutions dedicated to the task of giving young people membership cards in an eventually universal club of college graduates. If so, it is serving a futile purpose. Nothing is surer than that man will develop forms of social differentiation and if one form is eliminated, another will take its place. To pander to envy is hardly a useful and noble role for higher education.

Nor is it likely that the quality and nature of its services will remain unaffected by this goal. Already there is good evidence of the impact of the demand of education for all on the qualitative characteristics of higher education. It would be interesting to speculate on what would happen to the quality of a “prestige” car like the Cadillac if we were to endeavor to make one available to each family so that no family would have to feel inferior to another. It is quite legitimate to argue that education must be made available to all because otherwise education becomes an element in an unwanted social differentiation, but to so argue is to attempt to satiate man’s unlimited capacity to envy his fellow man. Also, it must carry with it certain modifications in the character of higher education which not all would find desirable.

IN SUMMARY, THE following conclusions can be drawn: The present system of below-cost pricing of higher education creates a number of serious problems. These include the problem of deciding which young people are to be admitted to college and then which are to be permitted to continue; the problem of low motivation of many students; the problem of motivation of faculty members created by the fact that they are not paid by their students; and the problem of educational efficiency created by the need to find resources to cover the annual deficits of colleges and universities. The arguments presented to establish the desirability of public and/or private subsidy to higher education, even if accepted, do not demand below-cost pricing. They call only for subsidy in some form, and the problems associated with below-cost pricing suggest that the subsidy should be provided in other ways, perhaps through grants to individual students.

The arguments for subsidy to higher education are not of unquestionable validity. The “social benefit” argument seems to have been exaggerated and at best would apply only to the non-vocational types of higher education. The “equality of opportunity” in the opportunity-to-income sense, cannot be verified by a study of the recent and current economic history of this country. If it could be verified, it would establish not a case for subsidizing higher education, but rather a case for an improved capital market to permit students to borrow against future earnings to meet current educational expenses. The “equality of opportunity” in the sense of opportunity to acquire the social status of a college-trained person may be valid, but this would make of higher education a technique for satisfying a futile and none-too-noble purpose.

IF THE ARGUMENTS developed in this article were to be accepted as valid, what policy changes would seem to be required? Would these changes not call for an unrealistic assumption of the willingness on the part of the American people to modify the traditional arrangements in higher education? Certainly it is true that traditional arrangements cannot be changed quickly or with ease—and this is not an unmixed evil. A certain caution in making changes is usually wise.

It is particularly difficult to secure any reduction of subsidies to special groups, and in particular to secure reduction of subsidies coming from public funds. Those who lose the subsidy lose a considerable sum per capita; those who are relieved of paying for the subsidy gain only a small sum per capita. Thus, the subsidized tend to be much more vocal and aggressive than the subsidizers. However, there is a growing awareness of the frightening financial load of higher education to be expected in the next 10 or 15 years. Some state legislators are already demanding that the state-supported schools increase tuition charges to students.

Clearly any changes would have to begin with the charges at state-supported schools. The private colleges and universities cannot hope to move much closer to full-cost tuition charges until the tuition charges at state-supported schools are increased substantially. The differential in tuition costs already operates to place the private schools at a serious competitive disadvantage.

The first step would seem to be for state-supported institutions to set up a pattern of tuition increases designed to increase the percentage of costs covered by tuition payments. This pattern could call for a final position in which the revenues from tuition fees would be approximately equal to total costs. This could probably be done, of course, only if the state were to also provide an increasing supply of straight grants or loans to students. It would seem to be desirable to move as quickly as possible to the use of only loans to students pursuing strictly vocational courses, and to increase the ratio of loan money to grant money for all students. These state loans and grants could also go to students attending privately operated colleges and universities. This would certainly be consistent with the general principle, but the private colleges would probably be able to bring students in touch with private sources of loan or scholarship money and might probably prefer to do so. In fact, there would be good reason for the state governments to vacate the lending position as rapidly as the private money market could service the needs of students.

This article is basically neutral on the question of whether government aid should come from local and state units or from the Federal government. However, the principle of diffusion of power would seem to establish a preference for local and state units. Also, the general reduction in the financial responsibilities of government for higher education under this plan would largely dissipate the case now being made for Federal aid to higher education.

IT IS PROBABLY unrealistic to expect that higher education in this country could be recast in the ultimate pattern implied in this study; but it is not unrealistic to suppose that progress could be made in bringing all tuition charges closer to the level of full-cost, in greater use of loan techniques in the financing of all education and in the financing of vocational education in particular, and in making greater use of the private capital market in the financing of investments in education. These changes would also tend to place an increasing emphasis on private as compared to public sponsorship of institutions of higher education. If the arguments advanced in this article are valid, all of these changes would work to the benefit of higher education and of the American society.

Trends in the U. S. Supreme Court

PHILIP B. KURLAND*

I INTEND TO CONFINE my observations to the constitutional aspects of the Supreme Court’s work. It is here that the Court performs its unique role as ultimate arbiter of the meaning of our fundamental law; law beyond the power of the other branches of the government to revise and, for the most part, beyond the control of the people themselves.

Looking over the past decade of the Court’s work—roughly the period between the school desegregation cases1 in 1954 and the reapportionment cases2 of 1964, one quickly discovers that the Justices have wrought more fundamental changes in the political and legal structure of the United States than during any period in our history since Mr. Chief Justice Marshall first wrote meaning into the abstractions of the Constitution’s language. To make my essential point at the outset, the problem is not primarily whether in one’s personal opinion these changes are good or bad; but whether the Supreme Court, constituted as it is by nine lawyers with life tenure and politically irresponsible, is the proper organ of government to accomplish the goals it may decide to set for this country.

THREE DOMINANT MOVEMENTS are evident in the Court’s recent work. First and foremost has been the emerging primacy of equality as a guide to constitutional decision. Perhaps an off-shoot of the Negro Revolution that the Court helped to sponsor in Brown v. Board of Education,3 the egalitarian revolution in judicial doctrine has made dominant the principles to be read into the Equal Protection clause of the Fourteenth Amendment rather than the Due Process clause, heretofore the polestar of Supreme Court action. Just as the Court read its own notions of appropriate governmental policy into its creation of substantive due process in the period that culminated in the 1930’s, so we now have a similar construction by the Court of what the Swiss have most appropriately called “substantive equal protection.” The decisions in the school segregation cases, the sit-in cases, and the reapportionment cases are merely the most prominent of a very large number of decisions pushing this egalitarian theme. Quite clearly the movement is at its inception; certainly it is nowhere near its conclusion.

Two fundamental difficulties face the Court in this effort, or would face the Court were it more conscious of its obligation to justify and explain its judgments. The first is the question whether the Equal Protection clause empowers the Court to eliminate not only the inequalities imposed by law, but the inequalities that derive from non-governmental action or inaction, the social and economic inequalities as well as the political inequalities. Until now the Court has successfully avoided confrontation of the problem either by finding governmental action where few others can discover it, as in the sit-in cases that preceded the Civil Rights Act,4 or by sweeping the problem under the rug, as in the sit-in cases decided by the Court since the Civil Rights Act.5

The second major problem presented by the new egalitarian movement is the task of adequately reconciling the competing claims of equality on the one hand with liberty and other fundamental guaranties on the other.6 Again the confrontation has not been publicly made, although the conflict was revealed in the 1963 Term in the Court’s split over its own power to command that private business concerns make their premises, goods, and services equally available to all.7 The split in the Court was all the more interesting because it separated Mr. Justice Black, heretofore the acknowledged intellectual leader of the “liberal” wing of the Court, from Justices Goldberg and Douglas, who have now assumed the role of leading the levellers. Mr. Justice Goldberg, for example, expressed himself—extracurricularly—as believing that equality and liberty were one and the same.8

This short article is not the place to document further my proposition of the Court’s new egalitarian pose. Those who are hardy may find some of the details set out in a recent article of mine in the Harvard Law Review.9 Those of you who are foolhardy can look forward to seeing them expressed at greater length in a book I hope to publish soon.

LET ME TURN THEN to the second prominent theme of current Supreme Court adjudication. This one, however important, is hardly novel. I am referring to the effective subordination, if not destruction, of the federal system. This movement is not entirely disparate from the egalitarian push, for each is a drive toward uniformity and away from diversity. Equality demands uniformity of rules. Uniformity cannot exist if there are multiple rulemakers. It follows that the objective of equality cannot be achieved except by the elimination of authorities not subordinate to the central power. It, too, is an important part of our political and social and economic movement away from diversity towards conformity.

Because of its lack of novelty there is no need to dwell on the Court’s behavior on this front. Perhaps the most amazing fact about the Court’s recent infringements on state authority is that, having taken so much power away from the states, it continues to find more to take away. But one point should perhaps be made clear. Governor Rockefeller in his 1962 Godkin lectures at Harvard said “The reports of the death of federalism, so authoritatively asserted in the nineteen-thirties, were, as we have seen, highly exaggerated.”10 But the Governor obviously had a different concept of federalism in mind than I do here. Certainly, as the Governor pointed out, state governments are bigger than ever, both in the amount of money they secure and disperse and in the number of tasks they perform; but this reflects not the continuance of federalsm but merely the growth of the role of government in modern society.

As Rector K. C. Wheare of Exeter College, Oxford, in his book on federalism, has pointed out: “What is necessary for the federal principle is not merely that the general government, like the regional governments, should operate directly upon the people, but, further, that each government should be limited to its own sphere and, within that sphere, should be independent of the other.”11 As you all know, there are today few, if any, governmental functions performed by the states that are not subject either to the direct control of the national government or to the possibility of preemption by the national government. The concept of separate sovereignties within this country is now largely a matter of history. Vestigial remains are perhaps still to be found in the fields of education and health and the administration of criminal justice, but even here state power is clearly on the wane. It is especially in the area of control of police and prosecution that the Court has, in recent years, drawn the reins tighter and tighter.

It would not be correct to leave the impression that this fundamental revision of governmental structure was brought about solely by the Court. Advances in transportation, communication, and science, which reduced the size of the world, were the primary causes. The rise of the United States as a world power was certainly a most important factor. And the essential default of the states in failing to assume the responsibilities that were theirs cannot be ignored. But the Court, too, has made and is making its contribution. It may be that federalism is no longer desirable or feasible. The question remains, who should make that judgment. Ought it, or must it, be the Court?

THIS BRINGS ME TO the third of the major trends discernible from a study of the Court’s efforts over the past ten years. I have in mind the enhancement of the judicial dominion at the expense of the power of other branches of government, national as well as state. Again it is not a novel theme. In the past, the Court’s powers have risen and declined like the business cycle; but like the recent economic prosperity, the Court’s recent dominance has been unusually long-lived and shows no signs of recession. (Automation creates no problems here.) There was, at one time, a fairly substantial area of governmental action that the Court had wisely declared off-limits for itself. The reapportionment cases seem to have dealt a fatal blow to the idea that there are certain functions of government beyond the competence of the Court to perform. There was, at one time, a notion that the Supreme Court was a court like other courts, called upon to resolve specific controversies between specified parties and not to lay down general blueprints for the reorganization of society. For Mr. Justice Brandeis, for example, if not for his successor: “If the Court were to exercise its grave function of reviewing the validity of co-ordinate branches of government, the Court must be careful to keep within its appointed bounds as a condition of judging whether others had kept within theirs.”

This calls to mind the fact that the Court in recent years has struck down so much Federal legislation as unconstitutional that it is reminiscent only of the activities of the nine old men in their frustrated attempt to dam the tide of the New Deal. Certainly it is true that the Court has engaged in this pastime of judicial review since it was invented by Mr. Chief Justice Mashall in Marbury v.Madison. Even so, striking down two statutes in a single Term is a little better than par for the course; and that is what the Court accomplished at the 1963-64 Term. In an opinion by Mr. Justice Douglas, it held that it was so unreasonable as to be unconstitutional for Congress to say that the benefits of citizenship conferred on a foreign-born person are dissipated when the citizen returns to his homeland for an indefinite period of time, perhaps never to return to this country.12 In an opinion by Mr. Justice Goldberg, Aptheker v. Secretary of State, it held that no legitimate governmental purpose could be served by denying passports to all members of the Communist Party and therefore no legitimate governmental purpose could be served by denying passports to the chairman of the Communist Party and its chief theoretician.13

IT IS ONLY FAIR TO note, however, that the Court treats its own precedents with no less disdain than it accords Congressional legislation. Indeed, a Court that considers its pronouncements to be “the law of the land” might be expected to pay more respect to its own opinions. The fact of the matter is that the number of its own cases overruled by the Court in the past decade, either openly or covertly, have accelerated at such a rate as almost to remove the hyperbole from Mr. Justice Roberts’ charge that the Court’s judgments were coming to be like railroad excursion tickets, good for this day only.

I shall not burden the reader with the details of my complaint about the technical deficiencies of the Court’s performance except to quote from an article written over seven years ago by two members of the Yale Law School faculty, in which they said:

The Court’s product has shown an increasing incidence of the sweeping dogmatic statement, of the formulation of results accompanied by little or no effort to support them in reason, in sum, of opinions that do not opine and of per curiam orders that quite frankly fail to build the bridge between the authorities they cite and the results they decree.14

I would report here only that the difficulties suggested have become exacerbated rather than resolved in the more immediate past.

The Court has not, however, acted entirely without excuse for its behavior, although there are some who think the excuse is not adequate. The essential justification is that the Court has acted, perhaps overacted, as the conscience of a nation when no other branch of our government was capable of demonstrating adequately decent behavior. Certainly there is merit in the argument when one considers the conduct of our other governmental departments in the face of the abuses that the community has rained on the Negro; the evils of McCarthyism, and the continued restrictions on freedom of thought committed by the executive and legislative branches of our national and state governments; the refusal of the states and the nation to make it possible for the voices of the disenfranchised to be heard; the continued use of police tactics that violate the most treasured rights of the human personality. The list may be substantially extended, but to no good purpose here. There can be little doubt that the other branches of government have failed in meeting some of their most fundamental obligations to provide constitutional government.

This justification may be inadequate, however, because the Court’s conduct has gone far beyond the necessity suggested by the action or inaction of the elected officials of our government. Or it may be inadequate because, as Learned Hand once told us, “a society which evades its responsibility by thrusting [it] upon the courts . . . in the end will perish.”15

THE SOLUTION OF THE problem of excessive judicial power, of what Leonard Boudin called, in the 1930’s, “Government by the Judiciary,” of what Morris Ernst damned at the same time as “The Ultimate Power,” is not to be found in the various gimmicks that have been suggested for limiting the Court’s jurisdiction or subordinating it to so silly an institution as “The Court of the Union,” any more than it was to be found in 1937 in Roosevelt’s “court-packing plan.” The answer must be found in making the judicial branch of the government politically more responsible without impinging on its independence. It should be remembered, as Sir Winston Churchill was fond of pointing out, that the success of Anglo-American democracies has depended in no small part on the independence of the judiciary.

Such an answer, if it is to be found anywhere, may possibly be found in the responsible utilization of the amending power. I would emphasize the qualification that the utilization of the amending power must be responsible. Recent efforts to push amendments through state legislatures without the knowledge of the people of the states is not what I have in mind, for there are, of course, serious dangers in an expanded use of power of constitutional amendment. The people of California have only recently provided us with some examples of silly, if not tragic, behavior in this regard. Professor Paul Freund has told us that the essential difficulties are threefold.16

The first, and I think the most important, is that “proliferating amendments would impair the sense of attachment to the old and familiar, the spirit of loyal devotion to a deeply rooted institution.” The second is that amendment may precede second thoughts that would demonstrate the undesirability of the amendment. The third is that an amendment may create more difficulties than it would solve.

In no small measure, the Founding Fathers anticipated two of these difficulties in providing for the means of constitutional amendment. The method is sufficiently cumbersome to assure that no large number of amendments could be successfully promulgated. The same lack of ease of amendment would provide more than adequate time for second thoughts to prevent unduly hasty action. The problem of the “risk of substituting new dissatisfactions for old, new uncertainties for old perplexities,” can be avoided only by dealing with proposed amendments with the care received, for example, by the proposed School Prayer Amendments in the House Judiciary Committee.

There is, however, a prerequisite to the utilization of the amending process, a prerequisite that will both justify the process and, in many instances, make it superfluous. That prerequisite is a real comprehension on the part of the electorate of the role and performance of the Supreme Court. The obligation of this understanding falls particularly on the leaders of the community, for, I think. I can say without fear of being proved wrong, that the press has failed in its obligation to educate the public about the decisions of the Court. It is also unfortunately true that the bar has failed in this regard; too few lawyers are themselves concerned with the efforts of the highest judicial tribunal in the land. Only an educated public can understand whether judicial decisions appropriately call for constitutional amendment. At the same time, an educated and aroused public may make the Court politically more responsible than it has been. It may, at times, even convince the Court itself to reconsider constitutional judgments that it has promulgated. History shows that the Court understands that, to use Professor Thomas Reed Powell’s phrase, “a switch in time saves nine.”

In conclusion, like another unsuccessful campaigner, I would remind you that the people get the kind of government they deserve. He was speaking of the elected branches of government, but I think it is also true of the Supreme Court. If the country thinks it deserves better, it should do something about it.

How Soviet Planning Works

G. WARREN NUTTER*

IN AN AGE OF romantic pragmatism, such as we now endure, keeping faith with logic, principles, or the facts is likely to be considered a curious eccentricity, perhaps deserving tolerance on occasion but seldom worthy of emulation. Nothing succeeds, in such an age, quite like success. Surely, nothing fails like failure. Never mind if you are wrong as long as you succeed. Right or wrong, beware only of failure.

Rationalization waxes as reason wanes, and here enters the role of the intellectual; for he is set off from other mortals as much by his impressive powers of rationalization as by anything else. To him, failure is no more difficult to “explain” after the fact than is success, even when the one historically follows the other and the two “explanations” are mutually inconsistent. Hence we grow accustomed to the spectacle of intellectuals scurrying to get off one bandwagon that has stalled and onto another that is gathering speed.

As a case in point, when it was popular only a short time ago to believe that the Soviet economy was sweeping all before it, the main body of Western intellectuals spoke almost of one voice in praising the Soviet brand of central planning as the reason for success. In urging their own countries to heed this unmistakable lesson of history. Learned acticles were even being written on “why Stalin was necessary.” Now the mob has swung around in the opposite direction; now they accuse this same system of bringing about inevitable economic failure and applaud Soviet officials for talking about reform. Why this change in attitude, one might ask? Can it be simply because it is no longer popular to view Soviet economic performance as an unprecedented and unmarred string of successes? The failures that were always there to be seen by the discerning eye have become too apparent to be hidden from anybody by propaganda. In many ways there is little difference in the realm of intellectual discussion between what goes on inside and outside the Soviet world. The basic difference, perhaps, is the intensity of argument. Formerly Soviet literature contained the most uncritical adulation of centralized planning. Now it contains the most severe criticism.

BUT THIS IS ALL BY way of introduction, because I want to discuss another, though related, kind of romanticizing that has helped make scholars blind to what was really happening in the Soviet economy. I have in mind the propensity to idealize, to elevate form above substance, to impute purpose to chance—in brief, to see order in disorder or even in chaos. The point is that Western scholars have not, as a rule, seen the Soviet system for what it really is: a set of institutions that has arisen out of an historical process of trial and error, and survived the various tests along the way. Their vision of the system has instead been almost idyllic, imposing a logic of design, a purity of function, and a simplicity of structure that have little or nothing to do with reality. Thus, the typical textbook on the Soviet economy has an early chapter on central planning that usually begins with a discussion of what one would want to do if one ran an economy; continues with an analysis of how one could efficiently do this by somehow solving an impressive array of simultaneous equations; and concludes with a description of how Soviet planning performs these functions. In other words, the actual system is made to conform with a preconceived ideal whether it does or not.

Perhaps a better way to understand central planning would be to start with the definition given by Mark Spade in his charming little book Business for Pleasure, the sequel to How to Run a Bassoon Factory.1 Spade says: “The difference between an unplanned business and a planned one is this: (1) In an unplanned business things just happen, i.e. they crop up . . . . On the other hand: (2) In a planned business things still happen and crop up and so on, but you know exactly what would have been the state of affairs if they hadn’t.” There is, of course, more to the matter than this, but not as far as planning itself is concerned. We all know about the “best laid plans of mice and men,” and yet we persist in applying the term “planning” to quite different social processes. We forget that this word was put into currency for its propaganda value, not its descriptive accuracy.

Instead of talking about planning, central or otherwise, we should be talking about ways of organizing social activity. At base, social organization must be achieved through custom, contract, or authority. No society has ever existed—or could exist—that relied on one principle to the full exclusion of the others, and hence the only sensible way to distinguish societies is in terms of the different roles played by each.

There is, however, a point to visualizing pure forms of social organization, if only to get our thinking straight. Let us start with an imaginary society ruled solely by authority. This would be best described as a corporate or hierarchical order. Everything that is done is done in response to an order passed down from a superior to a subordinate. Everybody has a boss—everybody, that is, except the supreme boss. The prototype is a military force, and a society exclusively run by a corporate order would simply be an army.

BY CONTRAST, ORGANIZATION by contract means a social order based on mutual interaction or voluntary association, whichever way one wishes to think of it The purest form is the ideal market place, where individuals freely exchange their wares for mutual benefit.

No one but a diehard and deluded anarchist can conceive of a society based solely on contract No one but a demented and doomed dictator can conceive of one based solely on authority. In any event, there are no historical examples of either, and there will never be any. All this is painfully obvious, not to mention trite. The family itself is an authoritarian body, though it may not always be clear who is the boss A private enterprise—the organizing entity in a market economy—is also a corporate form; and no authoritarian system of any size can survive without some markets and other realms of mutual interaction within it.

But to get down to cases The Soviet system may be described as basically a corporate order with a large area of contractual and customary behavior—some authorized, some merely tolerated, and some strictly illicit. The functioning of the economy is necessarily conditioned by this mixture of elements, and it is misleading to neglect any of them. As in the case of all economic systems, organization of the Soviet economy has three aspects. First of all, there must be planning or thinking ahead. Second, there must be basic decisions on what the economy is to try to do. Third, there must be administrative direction of activity.

Planning, in the narrow sense used here, is essentially a staff function. Somebody sits down and reviews the record of past performance, imagines how things have or could be changed to alter that performance, and maps out a program or programs designed to achieve goals supplied by somebody else. No society can keep going unless somebody, somewhere is looking ahead in some degree, but this is just another way of saying that man differs from other animals in at least this respect. It is equally clear that no society can run on planning alone.

Obviously somebody has to have the power to decide which program is to be followed. In the Soviet Union, this power is focused in a small self-perpetuating elite, and ultimately in the hands of one man or, at most, a small committee of men. Yet this group cannot decide everything. Like the great generals of history, it must leave small decisions to lieutenants if it is to make the big ones. The cardinal decisions, as far as the economic sphere is concerned, is how the fruits of social activity are to be divided, first, between the state and the populace, and, second, between the present and future in each case. The overriding objective is reasonably clear and simple enhancement of Soviet power, and thereby the power of the elite; but there remains the more important question of how this goal can be realized. In particular, there is the annoying problem of how to get the right mixture of power now and power in the future.

Let us put the problem in its crudest form. Military force is surely a key element in Soviet power, yet a smaller force now makes possible a larger one in the future. Similarly, the volume of goods available both now and in the future is not independent of what is given to the populace. The basic question boils down to this: When, in point of time, should the power of the state be maximized? The subsidiary problem is then how to arrange affairs to get the desired result. These are the kinds of decisions the Soviet planners must make, and they make them on the basis of the configuration they perceive in the giant chess game they are playing with the world. Just as to plan is not to decide, so to decide is not to do. Somebody has to get things done—to organize and manage activities with at least the intent of fulfilling basic decisions. This, in fact, is what most people seem to have in mind when they speak of “central planning”; and so I want to center the remainder of my remarks on how the Soviet economy runs.

FIRST, LET ME REPEAT my opinion that one gains little in understanding from abstract theorizing about central planning. Perhaps there will be a time when it will be relevant to talk about how Kosygin, or somebody else, optimized this or that through material balances or electronic computers or input-output techniques or linear programming or some as yet undiscovered but revolutionary device of social engineering; but that time is not now, and it was less so every year one goes back in Soviet history. Let me further state—as a simple act of faith, if you will—my conviction that it is beyond the ingenuity of man, no matter how far the science of social engineering may progress, to devise ways of running a society as large as the Soviet Union without significant recourse to contract or custom. Unless, that is, one is willing to abandon altogether the notions of efficiency and rationality, and to quit raising the question of how end results are related to original intentions.

Whatever may be the ultimate limits of a corporate order, the fact is that the Soviet economy is run only in part by command and obedience. It is also run by adjustment and even by inertia. There is no more sense in attributing all good or ill in the Soviet economy to centralized direction, without regard to the role played by markets and related institutions, than there is in saying that a man stays alive by breathing in, regardless of what he does about breathing out.

Markets pervade the Soviet economy, and their role has steadily grown since the early thirties. Some, like the socalled collective farm market, are open and legitimate. Others pass through the various shades of gray. Who has not heard of the “fixers” and “pushers”—the tolkachi? Of institutionalized influence peddling—the system of blat? Of the elaborate markets for exchanging apartments? Of “speculators” and other entrepreneurs, who sometimes achieve momentary fame on their day of execution? And so on and on. It is literally inconceivable that centralized direction could have functioned as well as it has without these pervasive, built-in shock absorbers and flexible linkages. I recall the words of a disillusioned young Russian engineer who, while vacationing in Yalta some eight years ago, struck up a brief acquaintance with me. “You know what communism means?” he asked me. “Communism means.” he said without waiting for an answer, “that if you have enough money, you can buy whatever you want.” And there was the collective farm manager whom I asked about planning in agriculture. “Of course, there are agricultural plans,” he replied. “But,” he added, “they depend on the weather.”

LET US TURN TO another widespread misconception about Soviet planning. Textbooks often describe Soviet economic programs, as if they were a series of boxes within boxes. According to this view the first box to be built is the grandest one of all: the long-range plan, formerly for five years and now for seven. Even this box is said to have its general contours determined by a fifteen or twenty-year plan. Once the long-range plan is constructed, the only problem remaining, we are told, is to fit the smaller boxes inside it, one for each successively smaller time period. The actual schedules of day-to-day activity—the quarterly and monthly plans—are viewed as miniatures of the grander scheme.

This all sounds fine, and it would make sense except for one troublesome detail: the system just does not happen to work this way. Western scholars in general have merely repeated in their writings what they have read in Soviet textbooks. Until very recently, they have not studied in depth, using the most primary sources available, how the system actually works.2

THE LONG-RANGE PLAN is a hazy vision of things it would be nice to have. It sets forth, for a limited number of key items, targets to keep one’s eye on. In other words, it gives something to shoot at and shout about—something concrete that the populace and economic agencies can be exhorted to attain. In no other important sense can it be considered a blueprint of the economic program for the intervening years. It does not attempt, for instance, to set a time schedule of achievements.

Now, consider two additional things: first, goals for the future grow out of experience of the past; and, second, it takes time to prepare reports on accomplishments and prospects. The result is that a goodly portion of the period being planned for is eaten away by preparation of plans. It is not unusual for a longrange plan to be published as late as a year after the period has started.

What, then, keeps things going in the meantime? The technical answer is current plans, on an annual, quarterly, and monthly basis. But these plans obviously have to be drawn up before there is a long-range plan of which they are supposed to be a carefully fitted part. And this is not the end: current plans also take time to draw up. The first quarter may be over before the annual plan is ready, the first month before the quarterly plan is ready, and so on. By that time, what has actually taken place is likely to be rather different from what has emerged as the plan. So the plan has to be revised to correspond with actual performance, and the process repeats itself. Through this constant readjustment of current plans to achievements, plans and performance converge in the course of the year. No wonder Pravda can publish such high percentages of plan fulfillment at the end of each year. The plan referred to is, of course, the final revised version.

Similiarly, in the course of either a short or a long period, plans can be attained—if this should remain an overriding objective—by the rather simple expedient of letting things slide in those large areas where no precise goals are set, or where the goals have a relatively low priority. There are plenty of built-in shock absorbers—or residual claimants, if you will—to dampen the blows of miscalculation. If this does not work, there always remains the expedient of throwing the whole plan away and starting over, as was done, for example, in 1957 and 1958. The question to ask, of course, is: Which is chicken and which is egg? Does performance derive from plan or plan from performance? The answer is that the relation goes both ways, though it is much stronger, in my opinion, from performance to plan than from plan to performance.

THE CRITICAL ELEMENT of muddling through can be shown in another way. Let us ask the question: What are the agencies that draw up plans, make basic economic decisions, and run things? As far as planning is concerned, the name Gosplan—State Planning Agency—immediately pops to mind: but one grows dizzy tracing out the shifting assignments and personnel of this agency in the postwar period alone. The terms of reference for this agency were changed no fewer than eight times between 1945 and 1964, almost once every two years.

Let me illustrate. In 1945 Gosplan had four major tasks: (1) planning of supplies, (2) planning on a current basis, (3) planning on a longe-range basis, and (4) compiling and processing statistics. The planning of supplies was withdrawn in 1946, processing of statistics in 1947. In 1953, planning of supplies was reassigned to Gosplan, only to be withdrawn two years later along with current planning. At this low point in 1955 and 1956, Gosplan was responsible for long-range planning alone, but in 1957, both planning of supplies and current planning were returned to its province. Three years later, it was relieved of its duties in long-range planning and restricted to planning of supplies and current planning. After another two years, its role was precisely reversed: It was made responsible solely for long-range planning. Finally, in 1964 its duties were expanded to encompass part but not all of current planning. There has, of course, been rather more stability in the decision-making nexus, essentially the Presidium of the Communist Party and of the Council of Ministries. Here important shake-ups have occurred only four times. At the level of actual administration, however, there has been vacillation back and forth between territorial and functional principles of organization since 1957, and no equilibrium arrangement is in sight. This is to say nothing of the frequent reorganizations of ministries, state committees, and the like, and the constant reshuffling of personnel.

Let me try to disarm my critics in advance by admitting that I have exaggerated elements of disorder in the Soviet system to make a point. Make due allowance, if you will, for this exaggeration. Is it even so possible to visualize Soviet planning as a process with dominant order, purposes, and continuity? I think not. Let us describe it for what it is: a set of institutions that has arisen out of an historical process of trial and error and survived the various tests along the way. These institutions make the economy go, sometimes reasonably well and sometimes quite poorly. Beneath everything there is the elemental force of momentum, which carries the economy forward from one day to the next whether plans have been properly attended to or not. Then, also, there are the many loose and flexible links that allow bending without breaking.

THIS IS FAR FROM THE picture conjured up by loose talk about theories of central planning. There is no command headquarters in the Soviet economy where brilliant scholar-leaders are solving a horde of simultaneous equations, pausing intermittently to issue the orders that mathematical solutions say will optimize something or other. Nor is there a simple mechanism whereby these orders are transmitted or carried out. If I may now conclude where I began, I would stress again the mischief of romanticizing. If they had faced the facts in the first place, would the intellectuals of our society have fallen down so badly in their job of guiding public understanding of the Soviet economy? Perhaps so. But at least they would have an honorable excuse.

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Collectivism in Social Theory

EDWIN HARWOOD*

There is no scientific sense whatever in creating for oneself some metaphysical entity to be called “The Common Good” and a not less metaphysical “State” that, sailing high on the clouds and exempt from and above human struggles and group interests, worships at the shrine of that Common Good.

—Joseph A. Schumpeter1

THE BELIEF THAT THE natural law framework of society is essentially corporative, that society requires a hierarchy of enlightened leadership with its most important social institutions receiving their legitimacy from a common ideological core and their operating directives from a central political directorate, has tended to unite social democrats, fascists, and even, it would seem, some religiously inspired neo-traditionalist thinkers. In the view of these, a government equipped with sufficient powers over human and material resources should be able to achieve a maximum of rationality and morality in society; and market-capitalism, which produces a division of political and economic powers, leads to the deterioration of a moral society.

It is too often forgotten that many liberal bourgeois social thinkers who were not socialists themselves have contributed to this critique of capitalism, partly as a result of their acceptance of that genre of social metaphysics alluded to above. In the case of the French sociological school, an essentially moral critique of capitalist industrial society was abetted by social scientific research and reinterpretation. Aiming to correct basic theoretical flaws in the atomisticutilitarian conception of human action and motivation, these outwardly liberal thinkers emphasized the coercive and regulatory functions of all social organization. They argued that it was necessary to recognize the importance of moral and cultural constraints in human action. As a member of society, man regulates his action in accordance with social values and tempers his hedonism with moral and religious considerations; in any case, his felicific calculus is as much the product of cultural tradition as it is of a basic schedule of biologically fixed needs.

This attack on atomistic utilitarianism (the psychological-methodological basis of English political economy and of its radical off-shoot, Marxism), received its major impetus from the French school of sociology, from men like Saint-Simon and Comte at an earlier period, and later from Durkheim and Mauss.2

It should be noted that while the French sociologists were hostile to capitalism and suspected that it was the chief cause of industrial civilization’s presumed moral anarchy, the French critique of utilitarian theory did not derive from their ideological principles, but rather it rested on the accepted canons of scientific investigation alone. On the other hand, it is clear that if a good case could be made for theories which stressed the social determinants of human action and which asserted that man’s nature is nothing if not social, then societies which appear consistent with the utilitarian analysis would be more likely to appear unnatural; that is, historical aberrations to be corrected by a generous corporative impulse. Hence, there is indeed an ideological bias in the early French sociological theorizing.3 In the writings of Comte, Mauss, and Durkheim one finds many concrete recommendations for a corporative social order, and they attempted to support these recommendations with their scientific studies.4

AMERICAN SOCIOLOGY of the 1930’s manifests a strong imprint of French concepts and the anti-capitalist bias discussed above. This may have been understandable in view of the solid empirical contributions of Durkheim and his students; but the task of carrying forward their program of research on the industrial order and its disabilities extended to more than just scientific considerations. It included, in addition, adapting the French assault against “chaotic capitalism” to the American social terrain of the 1930’s—admittedly a time which was not exactly propitious to theories favorable to capitalism, especially among social scientists not trained in economics. The separation of the moral and political order of society on the one hand from the operations of the market on the other, a separation which is never complete even in advanced capitalist societies, was one of the “natural aberrations” which the French fulminated against. This theme was soon taken up by a group of American sociologists and social-anthropologists, some of them men of indisputably great stature, like Elton Mayo and W. Lloyd Warner. In their work one finds the same admixture of political critiques with scientific explanation. Both of these writers write eloquently about the need for society to re-integrate itself in the interest of all contending factions. Their recommendations for a more rigid and unified hierarchy, and for a greater coordination of economic interest groups by political institutions is consonant with the corporative conception outlined above;5 but if social peace and quiet are such vital needs, why not recommend the proscription of those political freedoms and that type of parliamentary squabbling and naughtiness which—at least in the view of right- and left-wing authoritarians—only serve to magnify and exacerbate rather than resolve existing tensions and social antagonisms! Why not leave off with the terminological trepidation. Call it what it properly is: a fascist solution.

What had been with the French and certain of these American social scientists a critique of existing capitalist society and an argument for a corporative social order, one in which the economic sector of society would again be put to a moral harness, became transformed into a highly general theory of social organization.

INSTRUMENTAL IN THIS development was the work of Talcott Parsons. In a brilliant early work, The Structure of Social Action, Parsons continued the dialogue with utilitarian individualist thought which the French had spearheaded. Ten year later, in The Social System, he developed a distinctive theory of his own. Emphasis in this theory, which was not meant to be a theory of any one type of social system but of all social systems, was given to the postulate of shared values, of norms held in common by the inhabitants of a political community. Basic social antagonisms based on class and political divisions were secondary phenomena which had to be explained but were not of central relevance. What is the difference here between Parsons’ extrapolation of French sociological thought and what the French themselves believed? Parsons’ theory does not allow for distinctions between types of social systems, distinctions which are essential to a proper understanding of different societies at different stages of historical development. There was, for example, no attempt to distinguish between actual ongoing corporate states on the one hand—socialist and feudalist societies are similar in terms of the heavy-handed political centralization and statist natural law premises they advance—and capitalist society with its institutionalized independence of economy from polity. The French recognition of the fact that capitalist society differed from what they conceived of as a more natural social order was lost sight of in the emerging general theory developed by Parsons.

Parsons wanted to talk about society in general. This led him to the kind of pitfalls which I intend to discuss now. We shall consider one application of his general theory, his explanation of social stratification: the way in which men come to differ in terms of income and prestige. This theory of stratification is erroneous because it derives from a wholistic conception of social life and such a conception, I argue, is not at all adequate to the task of describing capitalist societies.

Parsons assumes that the reward and prestige which a given occupation garners depend upon “society’s” evaluation of the contribution of that occupation to the survival needs of the society. Occupations felt to be vital to the continuation of society will receive much more prestige and income than occupations which are not so vital. Sufficient consensus exists, in Parsons’ view, to insure that the income of a position will not be discrepant with its social value. A moral order being common to all men within the social system, such consensus about the relative ranking of services and occupations would never be problematic; but if a discrepancy should occur, if occupations of great importance were to receive less income than would be warranted by their importance, serious strains would be engendered. Some agency would have to intervene to insure that the important occupations received their due share of the economic distribution.6

That is the theory in a nutshell. It assumes that social systems have stable ideological cores from which unambiguous rankings of different occupations can be derived. It assumes that men come to a uniform evaluation of the survival needs of their societies—indeed, that societal survival is foremost in their minds when it comes to ranking jobs and allocating material rewards. It assumes, further, that situations in which a discrepancy exists, as for example in the case of jobs or trades which have high income but are morally reprehensible, can be considered abnormal and productive of social strain. Then, of course, they must be “corrected.” Is it not possible, however, in contrast to Professor Parsons’ view, to think of a market which does not follow the moral guidelines of some social elite, but allocates income to those who best provide for the wants of the mass of consumers?

These individuals may not measure up to the standards of the cultural elitists. They may actually provide services and goods felt to be petty and trivial; but the financial power of the consuming public is a basically democratic power, and it lies at the very roots of those discrepancies between the presumed moral attributes of an occupation and that occupation’s income which are more the rule than the exception in healthy capitalist states. It is often only the elitist intellectuals who must perceive a harmony of social functions where harmony does not in fact exist; and it is usually the intellectuals and the unsuccessful who feel that things moral and material must be brought back “into line.”

IN COLLECTIVIST societies a general consensus regarding the relative worth of different social functions, if it does not actually exist among the populace at large, can indeed be enforced by the intellectual, military, or feudal elites. Only this type of society, approximated by contemporary socialist states and feudalist regimes, can attempt to coerce the flow of income into channels which maintain consistency between the income and the presumed moral worth of a given occupation or social position. It is well known that a market freely organized can be frustrated in its effective allocation on the basis of demand, and thus the central administrative apparatus of the state can assign wages and salaries on the basis of criteria irrelevant to economic efficiency. In feudal and socialist regimes, merchants, entrepreneurs, tradesmen, and kindred social types of the third estate usually do not receive the material rewards that they would otherwise receive for their services in a democratic capitalist society.

Since a free market would have provided these social types with income felt to be inappropriate to the economic worth of their social functions, kings and comrades must have recourse to measures which will bring income into line with social prestige or what they feel to be society’s needs. Heavy taxation continually enforced, as in Bourbon France, or capriciously, as in the England of Charles I, sumptuary legislation—now, with changing fashions, referred to as “rationing”—and downright expropriation are among the measures which a social elite can employ to make certain that income will be allocated on the basis of political or “moral” criteria. I must confess that the socialist elites have carried out their task in this matter with much greater efficiency than the former Western monarchs and feudal princes; but I think that in terms of the ideal-typical distinctions I am trying to draw in this paper, it is safe to contrast feudal and socialist social systems on the one hand with capitalist societies on the other.

Professor Parsons and those sociologists who have followed him in this theory of social stratification never made these crucial distinctions between capitalist societies on the one hand, and socialist and feudal regimes on the other. They are not advocating a return of control over economic operations to a social and political elite—in short, a transformation of capitalist society into a socialist order—because they believe that there are no crucial distinctions. I am not saying that they are not personally aware of important differences. I am arguing that their explanation of social stratification does not take these differences into account.

I CANNOT DEAL WITH all of the underlying assumptions in this theory, in particular, with the assumption that society has a set of survival needs which are clear to most men in society, and which, when clearly understood, give rise to a uniform set of occupational evaluations. I leave this assumption for more versatile metaphysicians than myself to grapple with. The belief, however, that widespread social consensus exists with respect to the value of different economic services and social roles, that men not only agree upon the relative ranking of different social functions but in addition, experience strain and distress when they perceive how occupations and other social functions of high prestige receive modest incomes, strikes me as being contrary not only to common sense but also to historical experience. Consider the social and political upheaval in seventeenth century England. The enclosure movement which developed in the wake of the Tudor Reformation, as a response to the sale of monastery lands to enterprising nobles and burghers, created concern among the highest ruling elements of the society, Church and Crown.

The greater efficiency of the monastery lands, after having been sold to enterprising private individuals, increased the pressure on other landholders to raise rents and rationalize agricultural practices. There were other factors at work here, among them the decline in the purchasing power of the coinage, while rents in many cases had remained unchanged since feudal times. Nobles and gentry responded by jacking up rents, and by turning a large part of their lands into pasture for the production of wool. The lower ranks of the peasantry, the copyholders in particular, had a difficult time defending their rights to their private plots as well as to the commons in manor courts run by the very nobles and gentry they were up against. The Crown was disturbed by the growing social dislocations in the countryside. The rationalization of social relations between peasant and manor brought about by the commercialization of land was felt to undermine the power of the Crown—although Henry’s sale of Church lands and the campaign against the private feudal armies of the nobility were themselves factors in the decline of manorial paternalism.7

In the end, of course, the anti-capitalist measures of Laud, the High Commission, and Charles’ Privy Council were put to the block as squarely as was the Archbishop’s head. The combined triumph of agricultural capitalism in alliance with urban mercantile capitalism meant far more than just the end of a corporate feudal society. It meant, in addition, the end of a coerced consensus on the relative moral worth and prestige of different social functions. It meant that low-born bourgeois would obtain the full value of their economic contributions. They would also have more wealth than many of the high-born, and in time, more power too. Parliament, in denying the Crown’s right to impose arbitrary taxes, in particular, to sell and grant exclusive franchises which interferred with the efficiency of the market system, abolished in the process the use of political power for the control of economic life, for the diverting of the flow of goods and income away from the strata to which they would normally be destined under free market conditions. The sundering of the polity from the market meant—and this is most important for understanding the inadequacy of sociological theories of stratification like Parsons’—that the prestige which some elite judges to be merited by a social function will not necessarily correspond to the income received by that function in a capitalist society. There is also an absence of consensus about the relative importance of different social functions in capitalist society. Leftist intellectuals do not think as highly of businessmen as the latter do of themselves; ward-heelers are thought very highly of by lower-class, ghettoized immigrants, but that doesn’t assure them entry into clubs and upper-class salons.

In seventeenth century England, on the other hand, the nobility and court had sufficient social and political resilience to continue to determine what style of life and family background constituted high social worth, but they lost the ability to insure that the stream of goods and material comforts would correspond to this other dimension of social class. Capitalism’s triumph was not postponed because it had a falling out with some presumed “common-value” system which had assured consensus on the relative worth of different social functions. It triumphed because certain strata, fortunately aided by an aristocratic element with strong commercial interests, the Tory Radicals of their age, took the political initiative in seeing that the market system worked without Stuart political and religious fetters. England attained this goal much earlier because its bourgeoisie was much more advanced. It was favored over France and the other continental countries for a number of other reasons which John U. Nef has dealt with at length in his Industry and Government in France and England: 1540-1640. That work is among the best I know for gaining an understanding of why parliamentary democracy and capitalism triumphed so early in England.

WE HAVE DEALT AT some length with the myth of a “common-value” system, at least as applied to capitalist social systems, and I think that in the process we have learned why collectivist sociological theories apply to collectivist societies and not to the more pluralistic democratic capitalist system. If one considers, for example, R. H. Tawney’s political tracts, Equality and The Acquisitive Society, or Karl Polanyi’s The Great Transformation, one finds a quite stubborn awareness of the fact that capitalist civilization is neither a moral unity with a common ideological core nor a system that assures that income and prestige will follow what these anti-capitalist intellectuals consider to be their proper channels. These men are advocating a unified, morally integrated society, one in which a centralized political directorate would have the power to determine the moral value and “functional contribution” of various occupations and services. Although I heartily disagree with the ideas of these two thinkers, I must confess that they have a more acute understanding of the nature of social class and stratification in capitalist society than non-socialist social scientists such as Parsons and his followers. That the general theory of social stratification advances conceptions unsuited to the contours of capitalism is most clearly revealed in the statement made by two of Parsons’ followers regarding the dilemma of private property and inherited wealth:

. . . as social differentiation becomes highly advanced and yet the institution of inheritance persists, the phenomenon of pure ownership emerges. [By this I assume they mean ownership without unsubtly obvious functions.] In such a case it is difficult to prove that the position is functionally important or that the scarcity involved is anything other than extrinsic or accidental. It is for this reason, doubtless, that the institution of private property in productive goods becomes more subject to criticism as social development proceeds towards industrialization.8

This seems to be a striking admission. Having noted the obdurate legal fact of inherited wealth, Davis and Moore are arguing that with time people will come to reject the right of private ownership of productive firms and will insist that such material reserves be re-allocated on the basis of some more valid criterion of social contribution. This may or may not be an accurate description of current historical tendencies. It is clearly an admission of the inadequacy of their theory to account for the dynamics of class and stratification in capitalist states. What they are saying really is that with time, social reality will “catch up” with the propositions of their theory, the day when some Ministry of the Moral Order will insure that large blocs of wealth do not go into the hands of rentiers—Captains of Non-industry, if I may pervert somewhat a phrase coined by David Riesman; but will go to those who make the most important contributions to that somewhat mysterious and elusive end, societal survival.

These men pretend not to advocate but only to describe what is. The advocates of a collectivist society, however, are not only honest advocates but clearly cognizant of the important differences between the dynamics of class and stratification under capitalism on the one hand, and the mechanisms which operate in collectivist states on the other. I do not care for the collectivist goals of the French sociologists or the Marxian mecca of orthodox socialism; but I am concerned to see that the distinction between corporative and capitalist societies be fully understood for what it is, rather than being submerged by a general theory which admits of no important differences.

For this reason, I tend to feel that the older political polemics which recognize these differences have more scientific relevance and analytic clarity than altogether inapplicable abstractions about society in general. The latter have attained the orthodox scientific goal of universality with the result that we understand not more but less about the functioning of modern western societies.

Justice, “Needs,” and Charity

ROBERT L. CUNNINGHAM*

And for bonnie Annie Laurie
I’d lay me down and dee
(William Douglas, Annie Laurie)
Each heart recalled a different name
But all sang “Annie Laurie”
(Bayard Taylor)

DEFINITIONS ARE generally regarded as the best and most effective means of ensuring that our use of words is exact and clear. The advantages of following the recommendation: Define your terms! are seldom questioned; but to define a term like “justice,” a word that combines a strong eulogistic flavor with a wide ambiguity of meaning, is to engage in a dangerous occupation, for one is implicitly engaged in recommending an ideal, and thus any definition given is inevitably persuasive. There may be no agreement on the application of “justice,” no agreement on the criteria which ought to determine its use, there may be an inconsistency of application which reflects confusion of thought, but there will be unquestioning adherence to the proposition that justice is a good thing. When it proves possible to shift the application of a term like “justice” (or “democracy” or “liberty” or “socialism”) one may very well have won an important battle, for, implicitly, interests are thus redirected, values legislated in or out of existence, and the range of relevant “explanatory” information changed.

That such a shift in the application of “justice” has occurred is not really in doubt. “Justice” now usually refers not so much to a moral habit some individuals have and others, more or less, lack, but to a sort of institutional arrangement which it is the goal of political programs to achieve. Part of the load of favorable connotations formerly carried by “charity” (now redefined and carrying somewhat dyslogistic overtones), “love,” and “mercy” have been shifted to “justice.” Commutative justice is “out”; distributive or social justice is “in.” “Social justice” and “universal prosperity” or “happiness” are often used coextensively.

I shall attempt to show that if this shift has occurred, it has considerable importance for men of intelligence and good will: for it is an analytical proposition that men of good will and intelligence will strive for justice. A few centuries ago, a somewhat analogous shift occurred—a shift in the meaning of “selfish” which led men to accept as true the proposition: “All action is really selfish”—with the result that many were seduced from attending to their duties; fortunately a Bishop Butler was then available to make the appropriate distinctions and to show that the proposition was true only when “selfish” is used in a trivial and uninteresting sense.

JUSTICE HAS traditionally been considered to be a necessary modality of government action. If one says, “that’s unjust,” one has implicity said, “government has no business doing that”; and if one can justifiably say, “doing that will promote or foster justice,” one has given a good (though not necessarily a sufficient) reason for saying, “government ought to do that.” Now, one way of broadening the legitimate range of government activity is to broaden the scope of “justice,” and it does appear true that certain sorts of activity hitherto attached to “charity” (love, sympathy, affability, kindliness, spontaneous likings, friendliness, friendship) are now attributed to “justice”—usually social justice (the very best things these days are characterized as “social”). There are certain advantages to this broadening of “justice.” “Justice” connotes rationality, austerity, rigor, and admits of being pressed into fixed formulae and codes. The virtue of justice counteracts the crude egoism of the individual, but only in a minimal way, for it demands that all men be treated equally—and there are only a limited number of ways in which men are equal. “Charity,” and “mercy” even more so, connotes sentiment, softness, the glorification of instincts and whims, non-rationality. There is this difference too between charity and justice: Justice calls for treating A and B equally, whether A is a friend and B an enemy, or A one’s mother and B one’s mother-in-law. “A judge who respects the person is unjust.” Justice calls for the methodological exclusion of charity; but charity does not call for treating A and B equally. We love what is like ourselves and since some are more like us than others are, we love them more than we love the others. There are gradations of love or charity, but not of justice: We can love one more than we love another, but cannot treat one more justly than we treat another. As Joseph Pieper has written, “If love says: ‘Whatever belongs to me should belong to the one I love, too,’ justice proclaims: ‘To each his own.’ ”1

When strict (commutative) justice is called for by the situation, it must never be overruled or replaced by charity. If I borrow fifty cents from a friend, promising to repay fifty cents the next day, it would be unjust of me not to repay what I owe when it is due: to refuse to do so (when able) is a paradigm of injustice. It would also be morally unreasonable to strike an attitude of generosity and, when the money is due, say: “Here, take the fifty cents: you need it more than I do”; or out of “charity” to say: “I won’t keep the fifty cents, nor will I give it to you; I’ll give it to some poor person who needs it more than either of us.” Nor is it true that the claim to justice and to mercy are of equal weight. “There is,” James Martineau says, “a vast interval between the obligation which I have openly incurred in the face of my neighbor’s conscience and that which is only privately revealed to my own.”2 But if charity be brought under the aegis of social justice, then it may well be that some will argue that social justice ought to overrule commutative justice. The exquisite charity of the saint scarcely permits his justice—hardly different from that of the honest tradesman—to appear; and similarly, scarcely will social justice allow commutative justice to appear.

Notice also another limitation on the rectification of “justice” to designate what was traditionally designated by “charity.” Ordinary language is a few paces behind the verbal redistricting that has gone on. “He needs it more than I” justifies giving another charity, but hardly justice; and it makes sense to say, “I owe you $50 for the suit I got from you,” but hardly any sense to say, “I (we) owe you $50 because you are unemployed.”

WHY NOT, HOWEVER, broaden the designation of “just” to include much of what was hitherto included under “charitable”? If government will now promote charity, mercy, love—why not? For a very simple reason, indeed: because government has no goods of its own to distribute in charity and mercy. What goods it has it obtained from others who were (implicitly) threatened with violence if they did not pay what they “owe.” There is all the difference in the world between helping the poor by a free gift, and being ready to take away from the rich what he would otherwise unjustly—by the criteria of social justice—retain and then giving this to the poor. “Christ’s bidding to the rich is most imperative. It is necessary to stress that while He urged the rich young man to ‘distribute unto the poor,’ He did not tell the poor to take upon themselves to redistribute by taxation the rich young man’s wealth. While the moral value of the first process is evident, that of the second is not.”3 Though the (individual) moral duty of charity logically presupposes that of strict justice—since even when exercising charity to the highest degree, one can give only what is one’s own—if government is acting as a charitable agent, its charity can now be seen as demanded by social justice.

One tends to be struck, over and over again, with the unreal, not-in-this-world atmosphere in which many philosophers tend to discuss justice. The problems that seem important to solve have to do with distribution—there is no discussion of costs. The underlying model seems to be one in which there exists a mountain of goods to which individuals come with claims of various sorts, and government’s job, with the advice and consent of the philosopher, is to judge which and how many of these goods are to be distributed to A, to B, to C. In such a world the only problem is that of a just distribution—how this mountain of goods got there is irrelevant, or at least uninteresting; for this model does not even permit the raising of the issue of whether or not these goods already belong to someone, whether it is private property that is being (re-) distributed. W. K. Frankena, for example, asks us to consider the notion of comparative allotment as central to distributive justice. Suppose, he says, “society” is “alloting” goods to people. Then society may be justified in “giving C a banjo, D a guitar, and E a skin-diving outfit.”4 Note well the paternalistic model: Surely these are the gifts a father would give his children, say at Christmas; and note that the question of how it is that the father raises the money to pay for these goods does not arise. Nor does the question of how it is that one knows just what is good for each child arise; but is it appropriate to use the actions of a wealthy and wise father as a model for government action?

MERCY IS AN EVEN more unseemly sort of virtue than charity in our modern world. The man who practices it places himself above his neighbor, who is put in the position of receiving alms, in the position of dependence on an overlord. Can anything less democratic be imagined? Nor is mercy a radical virtue. the merciful man tends to deal with symptoms rather than root-causes, and is guilty, as Aurel Kolnai puts it, of “wishing to relieve the pain of the incurably sick instead of eliminating sickness from the world.” One can see that if the “mercy of the rich and powerful” can be eliminated from the world—by being made unnecessary as a result of the substitution of systematic social justice—the world will have gained in objectivity, rationality, and human dignity.

Notice also another advantage of broadening the extension of “justice”: those who receive what they “need” are no longer put in the position of one who receives charity or mercy, but of one who receives his just due. “Means tests” are out, for they were appropriate only when a man could not have been said to “deserve” help. It was argued traditionally that the fact that each person is not due the fulfillment of his “needs” follows directly from the proposition that “neither can it be affirmed a priori that there exists in the external world a sufficiency of goods for the needs of all, nor can it be affirmed a priori that one’s needs constitute a sufficient title to claim from others what belongs to them.”5 Now the “logic” of the word “need” is interesting. If I say “I need X,” there is, by contrast with my saying “I want Y,” a connotation of constancy, absoluteness, definiteness, a suggestion that what I say I need is almost physiologically demanded, and a suggestion that costs are irrelevant; the things I “need” are things that surely benefit me, but what I “want” may not do so. I can compare, for instance, my wife’s telling me, “I want a new rug” with her saying, “We need a new rug.” The connection between “X needs Y” and “X (morally) ought to have Y,” though not an entailment, is not purely contingent; but it makes sense to say “X wants Y, but maybe he (morally) ought not to have it.” In English we speak not of urgent, critical, crying, vital, or essential wants—but of urgent, critical, crying, vital, or essential needs (and this is so even though the noun “want” connotes the stability of “need”—a connotation not at all present in the use of the verb “want”). To speak then of an economy as potentially capable of satisfying all our “needs” is to imply that there is a constant and unchanging set of goods and services called “our needs” and also that a finite amount of wealth will enable us to satisfy these needs. But as economists point out over and over again, the notion of “need” is not an analytically useful one.

We are inclined to say that we need too many sorts of things, from more protein in our diet or a longer vacation, to a new car, more highways, more and better teachers, more missiles, more water in California. This is to say that “need,” like “want,” is a vague word, connoting constancy and definiteness but denoting, in many of its uses, nothing more definite than “want.” “I need” is used persuasively to say “I want.” When someone says: “I (or more usual, we) need X,” one should, I think, follow the suggestion made by Alchian and Allen and respond: “You say you need X, but in order to achieve what? At what cost of other goods or ‘needs’? And at whose cost?”6 These questions are obviously relevant when someone says “I want X”; they are no less relevant when someone says “We need X.” The only practical way, of course, of distinguishing “wants” and “needs” is to give some authority the power to define what are to be counted as “needs” and what are to be counted only as “wants”—but this course of action would have some rather obviously undesirable consequences which need not be discussed here.

D. D. RAPHAEL ARGUES that unequal treatment can be justicized on the basis of different needs: “We think it right to make special provision for those affected by special needs, through disability, such as mental or physical weakness, or through the slings and arrows of outrageous fortune. . . . Here, it would seem, we go against nature, and think ourselves justified in doing so.”7 Nonetheless, would we not find it strange to say: “He’s a just man because he gave more attention to the poorer students than to the average students”; or to say: “He’s a just man because he helped the child the bigger boys knocked down.” It may be right to give greater attention to poorer students, or to help the injured child—but is it just (that is do we now say that it is “just”)? It may be right “to meet these special needs . . . [by] an attempt to bring such people up to the normal level of satisfactions, or as near to it as we can”—but is it just to spend more on some than on others? Mortimer Adler once argued that if it takes two or even three times as much money to educate the less intelligent to an acceptable norm, the money should be spent. Perhaps; for maybe there are good (possibly utilitarian) reasons for doing so—but are they justicizing reasons? It may be right for a father to spend a great deal of money to send a crippled child to special schools, but if the other children question the justice (or “fairness”) of this procedure, can the father give good justicizing reasons? Though charity never overrules justice, one may—and perhaps the crippled boy’s siblings morally ought to—give up that to which one is justly entitled; but ought government to use the threat of coercion to achieve the same goal?

If a man asks for a dollar for a bed for the night, few would say I ought to give it in justice; but if that man votes himself a dollar from me, do I now owe it to him in justice? It is hard to see that the fact that he now has the government at his back to enforce his “claim” makes all the difference between a request for mercy and a demand for justice.

There may be a sense in which college professors “deserve” higher pay (everyone might be better off if abler men were attracted to teaching, etc.); it might be right to “work for” higher pay; but is it unjust that people have not chosen to spend a greater amount of their wealth on education?

One may well be able to defend the proposition that “private property has a social function”; but is this appropriately interpreted to mean that if you have more property than I, you ought in justice to give me some? This is egalitarianism with a vengeance and, as Kolnai says, “the trouble with the true egalitarian is precisely that he is unable to see a fat person beside a lean one without being tempted to assume that the former must have fattened on the flesh and blood of the latter.”8

It is conceivable that robbing Peter to pay Paul (the model of the welfare state?) may sometimes, in marginal situations, be justified; but never justicized. It is a considerable step from “the pursuit of happiness” to a claim to happiness rationed out by a government which guarantees social justice—aside from the fact that here as in all other cases where scarce goods are rationed, the goods tend to disappear.

Is it not odd that people will “fight” to raise social security benefits with all the solemnity proper to the performance of a religious duty? One is reminded of the Marxist prophecy which “required from its disciples no other belief than that in the force of bodily appetites and yet at the same time satisfied their most extravagant hopes.”9 What used to be called “selfishness” is made out to be not only permissible but a moral duty, the motive power behind the achieving of world social justice. “The ‘divine discontent’ that makes me crave for three rooms instead of two and two radios instead of one is a revolutionary force which deserves not only to be acknowledged but venerated.”10 If striving after limited equality is justice, then striving after total equality is striving for the consummation of justice.

IT IS NOT, I THINK, irrelevant to note parenthetically that there is good reason to believe that when legislators respond to popular demand for “public services” solely on the basis of “needs” criteria, overinvestment tends to result. This is also the case when government provides “private” goods to individuals without the use of pricing. It is doubtless true, as Kolnai writes, that we may be ready to dispense with “the fine connoisseurship of delicious dukes if in compensation we are relieved from the presence in our midst of illiterates, uncared-for consumptives, and persons ignorant of the use of soap.”11 But the means we choose, whether “just” or not, often fail to achieve their goal. Milton Friedman has argued, successfully I think (pace Galbraith: “Public services have . . . a strong redistributional effect. And this effect is strongly in favor of those with lower incomes.”12 ), that with the exception of direct transfer payments to the poor, all types of social welfare measures have the effect of taxing the poor to help the rich.13 This is to say that there is a net transfer from the poor to the rich when measures such as those making education “free” to the poor are passed (mainly at the higher, but even at lower, educational levels); freeways (not tollways) are built; “public housing” is provided (more housing than is built is first destroyed, and so the average cost of the housing available is raised); areas are “redeveloped”; “medicare” legislation is passed (the very poor are already well taken care of); “social security” is passed (benefits are, partly, paid for by a regressive tax); and legislation is passed to help farmers, only some of whom are poor (but raising the price of food for everyone else); or to help “senior citizens,” only some of whom are poor; etc.

The way the poor are dealt with is reminiscent of the way wolf packs are dealt with by the Eskimos. They plant razor-sharp knives clasp down in the ice and rub the blades with a little seal blood. The wolves, attracted by the blood, lick the knives, cutting their tongues. They are greedily delighted by the seemingly unending supply of nourishing blood they can lick off the knives. They stand there licking until they drop in their tracks from the loss of their own blood, then freeze to death in the snow.

Gregory Vlastos argues that “since humanity has lived most of its life under conditions of general indigence, we can understand why it has been so slow to connect provision for special need with the notion of justice, and has so often made it a matter of charity; and why ‘to each according to his need’ did not become popularized as a precept of justice until the first giant increase in the productive resources. . . .”14 But is this not a rather odd position? In the past, when we could not satisfy needs adequately, it was the function of charity (sympathy, pity, generosity) to provide help to the needy; today, when most people are not needy, charity is no longer called for, but we must in justice bring the few needy who remain up to par. When there are a great many needy people, pity them; when there are only a few who are not really so needy—in advanced countries, for in most of the world many people are still (biologically) needy—give them justice. Few would want to deny that with the passage of time sensitivity to the demands of justice can increase (or decrease), or that sensitive, pitying awareness of human misery can increase (or decrease). Yet is it not simply obfuscation (though persuasive) to confuse the two verbally, to say what was called for by “charity” on one day is called for by “justice” on another; and that the extent of remediable misery is sufficient to call for the verbal transmutation of “charity” into “justice.” We must give justice to our poor fellow-Americans, but need give only charity to the rest of the world’s poor.

Ceteris paribus, all of us would prefer a state of affairs where social rewards, privileges, wealth, power, and prestige were proportional to the individual’s use of his talents. We would like to see reward proportioned to “merit,” not only in heaven, but here and now on earth. What holds people back is the recognition that they lack divine knowledge and power (recalling the old saw of what would heaven be like if God sometimes put people in the wrong mansions?) Most political theorists also feared that some man or group of men might acquire the power to decide what another’s status ought to be, and that therefore freedom would be diminished.

ALTHOUGH IN UTOPIA reward should correspond to merit, and not necessarily to performance (which may dedepend on luck), we cannot very well judge merit. We may, however, feel that there are ways to get an idea of motivation; and for anyone influenced by Kant, motivation may be thought to be the near-equivalent of merit. From this viewpoint, it appears that businessmen are inspired mainly by the profit-motive, when we should prefer them to be motivated by a desire to promote the “common good”; but since there is no logically necessary connection between performance and income, we can, by interfering with the market system, attempt to establish some sort of correlation between preferred motivation and high income.

This sort of thinking is, however, moralistic, and leads only to confusion between the end of the activity and the end of the actor. Yet certainly what is done should count for more than why something is done: a Torquemada does no less harm for being nobly motivated. Should we no longer interest ourselves in the finality of an activity but only in the finality of the agent, we shall find highly motivated activity driving out highly beneficial activity. “Let us stop talking about people’s motives. I don’t care what people’s motives are. I want to know what they are doing and what the effects are, and which ones are good and which ones are bad. I don’t care why you hold this office or why you run this business. It will always be true, I should think, that people will go into business to make money. What is wrong with that?”15

Is it not better to strive for less than “(re-) distributive justice”—namely, for visible and evident commutative justice which does not directly count the personal effort of a man’s work but only the result—realizing that moral value, while the highest, is not the sole value, and is the least measurable by empirical methods. It is better to give up a dream for the perfectly just society—which, as a matter of fact, the unsuccessful would find more unbearable than now, when chance and fortune so clearly have enormous roles to play and they can blame luck rather than lack of merit for their condition. Given the climate of opinion about the very wealthy—whether based on envy or not—a man is unlikely to choose commerce and industry unless the material rewards are relatively great. The only way a “philistine” has of knowing whether his efforts have any merit is by his profit-and-loss account. If this standard of successful service is scorned, the function of the market in allocating resources to successful producers is destroyed. Running a department store well is not the noblest of all humanly befitting activities, a bonum honestum, and the best people know it. (The Greeks called such activity banausic—“the man at the stove.”

The lower the possible “profits,” the less the interest in putting one’s economic life on the line. The losses are as great as ever, and speculative economic investment of the sort that, when successful, means great service to the consumer and so great wealth to the entrepreneur, is stillborn. How far we have departed from the attitudes reflected in Samuel Johnson’s remark that “there are few ways in which a man can be more innocently employed than in getting money”! As long as it appears desirable to raise the general standard of living, if not for oneself then at least for one’s fellows in one’s own country and the rest of the world, one had better make sure that those who engage in productive pursuits are not deprived of sufficient material rewards to encourage them to continue their useful other-serving activity, even though whole-hearted moral approval cannot be given them. The envious man who for “moral” reasons refuses to pay the price asked for the services he demands (“How can any man be worth a million dollars a year?”) will shortly find these services are unavailable. One must not forget, as Hayek reminds us, that in a sense all of us are striving to achieve the status of the “idle rich,” those whose activities are not governed by desires for material gain.

What is true of the wealthy with respect to the poor is true also to wealthy nations vis-à-vis poorer nations: One may, by redistribution, kill the proverbial goose. Further, if it is “just” to re-distribute the “profits” of the wealthy to the poor in one’s own country, is it not quite as “just” for people of poorer countries to claim that the goods of the wealthy nations ought to be redistributed among them? Is not “social justice” being violated in a world in which an American auto worker belongs to that two per cent of the earth’s population whose income is highest?

COMMUNICATION:

The 1964 Election

[1 ] P. Smith, I’ll Take My Stand; the South and the Agrarian Tradition, by 12 Southerners (New York: Harper Brothers, 1930).

[2 ]Ibid., p. 8.

[3 ]Ibid., pp. 15-16.

[4 ]Ibid., p. 338.

[5 ]Ibid., pp. 343-345.

[1 ] Let us look at a special example which should serve to define the issue. Will anyone reasonably contend that the money which has been expended by the Rockefeller Foundation on education and research would have accomplished as much if it had passed through the hands of publicly elected officials? The fact that it was a privately managed corporation able to define what it wanted and above all, able to wait for long-term results, has made possible its great contribution.

[* ] George J. Stigler, an Editorial Advisor to NEW INDIVIDUALIST REVIEW, is Walgreen Professor of American Institutions at the University of Chicago, and President of the American Economic Association.

[1 ] For example:

“Although competition can bear some admixture of regulation, it cannot be combined with planning to any extent we like without ceasing to operate as an effective guide to production. Nor is ‘planning’ a medicine which, taken in small doses, can produce the effects for which one might hope from its thoroughgoing application. Both competition and central direction become poor and inefficient tools if they are incomplete; they are alternative principles used to solve the same problem, and a mixture of the two means that neither will really work and that the result will be worse than if either system had been consistently relied upon. Or, to express it differently, planning and competition can be combined only by planning for competition but not by planning against competition.” (p. 42)

And again:

“Yet agreement that planning is necessary, together with the inability of democratic assemblies to produce a plan, will evoke strong demands that the government or some single individual should be given powers to act on their own responsibility. The belief is becoming more and more widespread that, if things are to get done, the responsible authorities must be freed from the fetters of democratic procedure.” (p. 67)

Such passages are, however, warnings of the consequences of comprehensive socialization rather than arguments that it is inevitable.

[2 ] For a recent restatement of this view by a person not identified with “conservative” views, see the essay by K. E. Boulding, “The Dimensions of Economic Freedom,” in E. O. Edwards ed., The Nation’s Economic Objectives (Chicago: University of Chicago Press, 1964) esp. pp. 119-20.

[* ] Ralph Raico is the Editor-in-Chief of NEW INDIVIDUALIST REVIEW.

[1 ] Frank S. Meyer, ed., What is Conservatism? (New York: Holt, Rinehart and Winston, 1964), 242 pp. $4.95.

[2 ] Meyer, “Freedom, Tradition, Conservatism”; Evans, “A Conservative Case for Freedom.”

[3 ] Gerhard Niemeyer, “Risk or Betrayal? The Crossroads of Western Policy,” Modern Age, Spring, 1960, p. 124. The context makes it clear that Prof. Niemeyer regrets the passing of this conception of government

[4 ] Ludwig von Mises, Human Action (New Haven: Yale University, 1949), pp. 149, 715.

[5 ] For a broader discussion of the fusionist position, see the forthcoming article by Ronald Hamowy in Modern Age: “Classical Liberalism and Neo-Conservatism: Is a Synthesis Possible?”

[6 ] In what follows, I shall be using the terms “classical liberalism,” “liberalism,” and “libertarianism” interchangeably.

[7 ] In a footnote to his essay (p. 232), Evans asserts that he is using “libertarian” to mean “the chemically pure form of classical liberalism,” including the “acceptance of [an] anti-religious philosophy.” Presumably he has abandoned this terminology in the passage quoted here. For if he has not, then the assertion of the anti-religiousness of the libertarian would be merely an uninteresting tautology, entailed by Evans’ personal terminology, and, moreover, the passage would then have to read: “The libertarian, or classical liberal, necessarily denies . . .”

[8 ] It is difficult to see why Evans modifies the term “God-centered moral order” with the clause, “to which man should subordinate his will and reason.” Presumably, the assertion of the existence of any moral order entails that one should subordinate one’s will to it. As for the subordination of reason to this order, I take this to imply that God’s moral order is not knowable by reason alone. Why such a view, even supposing that the typical libertarian maintained it, should be thought to be associated with freethinking and atheism, it is impossible to say. For it appears to be precisely the position of the Catholic Church: “Whilst therefore the Catholic believes that the moral law is knowable to man by sheer reason and experience, being the law of man’s very nature, he believes that the fulfilment or non-fulfilment of it has more than natural implications.” Thomas Corbishley, S. J., Roman Catholicism (London: Hutchin’s University Library, 1950), p. 57 (ital. added). Since I cannot see that this clause could lead to anything but a confusion of the issue, I feel justified in ignoring it.

[9 ] While it is logically possible for one to be a Christian and at the same time to have some other “center” than God for one’s moral system, still the rule has been that those professing Christianity have attributed to God the central role in their ethical systems. I am therefore taking the Christian faith of a classical liberal as prima facie disproof of Evans’ assertion.

[10 ]Harmonies of Political Economy (Edinburgh: Oliver and Boyd, 1870), Part II, p. 150. Emphasis in text.

[11 ] G. M. Trevelyan, The Life of John Bright (Boston: Houghton Mifflin, 1914), p. 104.

[12 ]Social Statics (New York: Appleton, 1880), pp. 83-84.

[13 ]Utilitarianism, On Liberty and Representative Government (New York: Dutton, 1950), p. 16.

[14 ] At times Evans implies that, not only are libertarians moral relativists, but that, in consequence of this, they do not even hold that anything is immoral! E.g., (addressing the libertarians): “If there were no objective standards of right and wrong, why object to tyranny? If murder and theft are not immoral, why object to them either singly or in the mass?” (p. 72; ital. in text). We will, however, deal only with the first claim.

[15 ] Richard B. Brandt, Ethical Theory (Engelwood Cliffs, N. J.: Prentice Hall, 1959), pp. 271, 154.

[16 ] I am Ignoring those very few cases in which the net utility of two different courses of action will be exactly the same.

[17 ] Edouard Laboulaye, Le Parti Libéral: son Programme et son Avenir (Paris, 1871), pp. 121-22.

[* ] William H. Nolte, Assistant Professor of English at the University of Oregon, has contributed articles to the Southwest Review and Texas Quarterly, and has a forthcoming study of H. L. Mencken.

[1 ] See the excellent preface to The Puritans (New York: Harper & Sons, 1938), edited by Perry Miller and Thomas H. Johnson.

[2 ] H. L. M., “Variations upon a Familiar Theme,” The Smart Set, Dec., 1921, p. 139.

[3 ] H. L. M., A Book of Prefaces (New York: Alfred Knopf, 1917), pp. 197-198.

[4 ]Ibid., p. 200.

[5 ]Ibid., p. 201.

[6 ]Ibid., pp. 203-204.

[7 ] Guy J. Forgue, ed., Letters of H. L. Mencken (New York: Alfred Knopf, 1961), p. 271.

[8 ]A Book of Prefaces, pp. 212-213. It should be unnecessary to remind the reader that today many high government officials are waging, by their own frequent admissions, a “moral” war against the infidelity of Communism. Of course, the Communists are themselves fully aware of the effectiveness of moral judgments against the enemy. In his long introduction to Patriotic Gore, Edmund Wilson composed a devastating indictment of all those who employ morality as a justification of or cloak for acts which are clearly motivated by self-interest. Although he does not exempt other nations from this disease, Wilson concentrated on the American’s extraordinary ability in this particular form of causistry.

[9 ]A Book of Prefaces, pp. 214-215.

[10 ]Ibid., pp. 217-218.

[11 ]A Book of Prefaces, pp. 224-225.

[12 ]Ibid, pp. 227-229.

[13 ]Ibid, pp. 231-232.

[14 ] U.S. vs. Bennett, 16 Blatchford, 368-9 (1877).

[15 ]Idem, 362; People vs. Muller, 96 N. Y., 411; U.S. vs. Clark, 38 Fed. Rep. 734.

[16 ] U.S. vs. Moore, 129 Fed., 160-1 (1904).

[17 ] U.S. vs. Heywood, judges charge, Boston, 1877. Quoted in U.S. vs. Bennett, 16 Blatchford.

[18 ]A Book of Prefaces, pp. 263-265.

[19 ] The chief sufferers from this conflict are the authors of moving pictures. What they face at the hands of imbecile State boards of censorship is described at length by Channing Pollock in an article entitled. “Swinging the Censor,” in the Bulletin of the Author’s League of America for March, 1917.

[20 ]A Book of Prefaces, pp. 273-274.

[* ] Reprints of this article are available from New Individualist Review. Single copy, 15 cents. Ten or more copies, 10 cents each.

[* ] Yale Brozen is Professor of Business Economics at the University of Chicago and an Editorial Advisor to New Individualist Review. He has contributed numerous articles to professional journals.

[1 ] Herbert Spencer, The Man Versus the State (New York: Appleton, 1897), pp. 338-39.

[2 ] G. J. Stigler, Five Lectures on Economic Problems (London: Longmans, 1948), p. 1.

[3 ] L. von Mises, Human Action (New Haven: Yale University Press, 1949), p. 715.

[4 ] A letter received by the author is typical: “The only theoretical treatments of the minimum wage laws I have seen suggest that they are unfavorable to the economy as a whole. But somehow I find it hard to believe that the law could be passed and extended and the level raised several times if it is supported by nothing more than wishful thinking.” October 26, 1964.

[5 ] G. J. Stigler, “The Government of the Economy,” G. J. Stigler and P. A. Samuelson, A Dialogue on the Proper Economic Role of the State (Chicago: University of Chicago Graduate School of Business, Selected Papers no. 7, 1963), pp. 3-4.

[6 ] National Opinion Research Center, A Personal Interview Survey of College Economics Teachers (mimeographed).

[7 ] Chase Manhattan Bank. “321 Economists Comment on Key Public Issues,” Business in Brief, Nov.-Dec., 1963.

[8 ] J. R. Meyer, M. J. Peck, J. Stenason and C. Zwick, The Economics of Competition in the Transportation Industries (Cambridge: Harvard University Press, 1959).

[9 ] James C. Nelson, Railroad Transportation and Public Policy (Washington: The Brookings Institution, 1959).

[10 ] P. W. MacAvoy, Trunk Line Railroad Cartels and the Interstate Commerce Commission 1870-1900: A Case Study of the Effects of Regulation on Price (multilithed).

[11 ] Reported by Dr. George Hilton at the Conference on Regulated Utilities, June 15, 1963, at the Center for Continuing Education, University of Chicago.

[12 ] For a concise discussion of the CAB see S. Peltzman, “CAB: Freedom from Competition,” New Individualist Review, Spring 1963, pp. 16-23.

[13 ] M. R. Colberg, D. R. Forbush, and G. R. Whitaker, Business Economics (Homewood, Ill.: Irwin, 1964), pp. 130-31.

[14 ] A. R. Ferguson, E. M. Lerner, J. S. McGee, W. O. Oi, L. A. Rapping, and S. P. Sabotka, The Economic Value of the United States Merchant Marine (Evanston: Northwestern University Press, 1961).

[15 ] R. W. Gerwig, “Natural Gas Production: A Study of the Costs of Regulation,” Journal of Law and Economics, V (1962), 69-92.

[16 ] G. J. Stigler, “The Government of the Economy,” in Stigler and Samuelson, op. cit., p. 6. See also: G. J. Stigler and C. Friedland, “What Can Regulators Regulate? The Case of Electricity.” The Journal of Law and Economics, V (Oct. 1962), 1-16.

[17 ] D. G. Johnson, “Labor Mobility and Agricultural Adjustment,” in E. O. Heady, H. G. Diesslin, H. R. Jensen, and G. L. Johnson ed., Agricultural Adjustment Problems (Ames, Iowa: Iowa State College Press, 1958), pp. 163-72.

[18 ] D. G. Johnson, “Output and Income Effects of Reducing the Farm Labor Force,” Journal of Farm Economics XLII (Nov. 1960), 779-96.

[19 ] Cited by Professor Joel Segall in a paper presented at Rockford College, December 2, 1962, from Chicago Housing Authority sources. A published study by The Chicago Housing Authority (Rehousing Residents Displaced from Public Housing Clearance Sites in Chicago, 1957-58) showed that the median rent paid by 161 families occupying housing destroyed by the Authority in 1957 was $51/month in the destroyed housing. After relocation, these families paid a median rent of $77—an increase of 51 per cent.

[20 ] J. M. Peterson, “Employment Effects of Minimum Wages, 1938-50,” Journal of Political Economy, LXV (Oct. 1957), 412-30.

[21 ] D. E. Kaun, Economics of the Minimum Wage: The Effects of the Fair Labor Standards Act, (Ph.D. Dissertation, Stanford University, 1964).

[22 ] Y. Brozen, “Minimum Wage Rates and Household Workers,” Journal of Law and Economics, V (Oct. 1962), 103-9.

[23 ] U. S. Bureau of the Census, Statistical Abstract of the United States: 1964 (Washington: U. S. Government Printing Office, 1964), p. 109. For information on the relation of education to income, see Ibid., p. 115.

[24 ] M. Friedman, “The Demand for Money; Some Theoretical and Empirical Results,” Journal of Political Economy, LXVII (Aug. 1959), 327-351; M. Friedman and D. Meiselman, “The Relative Stability of Monetary Velocity and the Investment Multiplier in the United States, 1897-1959,” in Commission on Money and Credit, Stabilization Policies (Englewood Cliffs, N. J.: Prentice-Hall, 1963), pp. 165-268. M. Friedman. “The Monetary Studies of the National Bureau,” The National Bureau Enters Its Forty-Fifth Year (New York: National Bureau of Economic Research, 1964), pp. 7-25. Annual Report. M. Friedman and A. J. Schwartz, A Monetary History of the United States (Princeton: Princeton University Press, 1963).

[25 ] R. F. Wallace, “The Use of the Progressive Discount Rate by the Federal Reserve System,” Journal of Political Economy, LXIV (Feb. 1956), 59-68.

[26 ] L. Currie, “The Failure of Monetary Policy to Prevent the Depression of 1929-32,” Journal of Political Economy, XLII (April 1934), 145-77.

[27 ] M. Friedman and A. J. Schwartz, A Monetary History of the United States, 1867-1980 (Princeton: Princeton University Press, 1963), pp. 543-45.

[28 ]Ibid., pp. 604-610.

[29 ] “Bank Reserves, Bank Credit and the Money Supply: 1951-1963,” Federal Reserve Bank of St. Louis Review, XLV (Oct. 1963).

[30 ]Ibid., pp. 4-5.

[31 ]Federal Reserve Bank of of St. Louis Review, Loc. Cit.

[32 ] George J. Staller, “Fluctuations in Economic Activity: Planned and Free Market Economies, 1950-1960,” American Economic Review, LIV (June 1964), 385-95, shows that the eight planned economies of the European Communist Bloc were more unstable than the free market countries composing the Organization for Economic Cooperation and Development in the period of the fifies.

[33 ] For example, J. A. Schumpeter, History of Economic Analysis (New York: Oxford University Press, 1954), has referred to the reluctance of economists to recognize that bank loans create deposits. He remarks, “This is a most interesting illustration of the inhibitions with which analytical advance has to contend and in particular of the fact that people may be perfectly familiar with a phenomenon for ages and even discuss it frequently without realixing its true significance and without admitting it into their general scheme of thought.”

[34 ] Carl Schurz, in one of his writings.

[35 ] See E. Sohmen, “Competition and Growth: The Lesson of West Germany,” American Economic Review, XLIX (Dec. 1959), 936-1003. J. Hennessy, V. Lutz, and G. Scimone, Economic “Miracles” (London: Andre Deutsch, 1964).

[* ] Gordon Tullock is Associate Professor of Economics at the University of Virginia. His latest book is The Politics of Bureaucracy; he is coauthor of The Calculus of Consent.

[1 ] Marbury v. Madison, 5 U. S. (1 Cranch) 137, 177 (1803).

[2 ] 5 U. S. (1 Cranch) at 178.

[3 ] 5 U. S. (1 Cranch) at 180.

[4 ] 5 U. S. (1 Cranch) at 180. (Italics in original.)

[5 ] 5 U. S. (1 Cranch) at 180.

[6 ] 74 U. S. (7 Wall.) 506 (1868).

[7 ] Massachusetts v. Mellon, 262 U. S. 447, 488 (1923).

[8 ] 5 U. S. (1 Cranch) at 178.

[* ] Denis V. Cowen is currently Professor of Law at the University of Chicago Law School. He was formerly Dean of the Law Faculty at the University of Cape Town.

[1 ] See, e.g. “Call for a Dialogue in South Africa,” New York Times, May 17, 1964, Sec. 6, p. 19 et seq. The Foundations of Freedom (Oxford: Oxford University Press, 1961). Liberty, Equality, Fraternity Today (Johannesburg: South Africa Institute of Race Relations, 1961).

[2 ] P. Mason, “South Africa and the World, Some Maxims and Axioms,” Foreign Affairs, Oct. 1964, p. 150.

[3 ]New York Times, July 10, 1964, p. 2.

[4 ]New York Times, Dec. 11, 1964, p. 33.

[5 ] My own formula for a non-racial, fully democratic federal form of government, with a court-enforced bill of rights—elaborated at length in my book Foundations of Freedom—is one of several proposed “alternatives” to the present dispensation, which as yet has made no serious impact.

[6 ]New York Times, Dec. 15, 1964, p. 16.

[* ] Benjamin A. Rogge is Professor of Economics at Wabash College and an Editorial Advisor to New Individualist Review. He is co-author of the college textbook Introduction to Economics.

[1 ] See William A. Rusher, “Suite 3505: The Inside Story of How, When and Where the Goldwater Candidacy Was Conceived and Launched,” National Review, Aug. 11, 1964, pp. 683-86.

[2 ] J. M. Keynes, The General Theory of Employment, Interest and Money (New York: Harcourt, Brace, 1936), p. 383.

[3 ] F. A. Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1944), particularly the chapter on “Why the Worst Rise to the Top.”

[* ] William S. Stokes is Senior Professor of Comparative Political Institutions at Claremont Men’s College. He is a leading authority on international relations and a leading specialist in Latin American affairs.

[1 ] L. Erhard, Prosperity Through Competition (New York: Praeger, 1958), p. 116.

[2 ] T. Heuss, “German Character and History,” Perspective of Germany, Atlantic Monthly, March 1957, p. 103.

[3 ] L. Snyder, German Nationalism: The Tragedy of a People (Harrisburg, Pa.: Stackpole, 1952), pp. 521, passim.

[4 ] G. Schröder, “Germany’s Position and Germany’s Future,” The Bulletin (Bonn: Press and Information Office of the German Federal Government), April 7, 1964.

[5 ] My statements here are based on personal observations in East and West Germany, East and West Berlin, summer, 1960.

[6 ] W. H. Chamberlin, “The Twilight of the Planners,” The Freeman, May, 1964, pp. 23-24.

[7 ] Military Government of Germany, Monthly Report of the Military Governor U. S. Zone: Reparations and Restitutions, No. 9 (April 20, 1946), p. 1.

[8 ]Die Welt (Hamburg), Aug. 24, 1959.

[9 ] Office of the U. S. High Commissioner for Germany, Report on Germany, Sept. 21, 1949-July 31, 1952 (Washington, D. C.: U. S. Government Printing Office, 1952), p. v.

[10 ]Ibid., p. 49.

[11 ] Military Government of Germany, Monthly Report of the Military Governor, U. S. Zone: Manpower, Trade Unions and Working Conditions, No. 8 (March 20, 1946), p. 8.

[12 ] Office of Military Government for Germany (U. S.), Economic Developments Since Currency Reform, Special Report of the Military Governor, November, 1948, p. 2.

[13 ] Military Government of Germany, Monthly Report of the Military Governor, U. S. Zone: Report of the Military Governor, No. 2 (Sept. 20, 1945), p. 10.

[14 ] Military Government of Germany, Monthtly Report of the Military Governor, U. S. Zone: Public Welfare, No. 2 (Sept. 20, 1945), p. 3.

[15 ] Military Government of Germany, Monthly Report of the Military Governor, U. S. Zone: Report of the Military Governor, No. 6, (Jan. 20, 1946), p. 5.

[16 ] Office of the U. S. High Commissioner for Germany, 1st Quarterly Report on Germany, Sept. 21-Dec. 31, 1949 (Washington, D. C.: U. S. Government Printing Office, 1950), p. 34.

[17 ] Military Government of Germany, Monthly Report of the Military Governor, U. S. Zone: Food and Agriculture, No. 20 (March 1, 1946-Feb. 28, 1947), p. 1.

[18 ] Military Government of Germany, Monthly Report of the Military Governor, U. S. Zone: Report of the Military Governor, No. 13 (Aug. 20, 1946), p. 16.

[19 ] Erhard, op. cit., p. 10.

[20 ]Ibid., p. 14.

[21 ]Ibid., pp. 32-33.

[22 ]Ibid., p. 35.

[23 ]Ibid., pp. 39, 41.

[24 ]Ibid., p. 39.

[25 ] Office of Military Government for Germany (U. S.), Economic Developments since Currency Reform, pp. 3-4.

[26 ] Office of Military Government for Germany (U. S.), Monthly Report of the Military Governor: Report of the Military Governor, No. 36 (June, 1948), p. 6.

[27 ] Erhard, op. cit., p. 13.

[28 ] Office of Military Government for Germany (U. S.), Economic Developments since Currency Reform, p. 3.

[29 ] Office of the U. S. High Commissioner for Germany, Report on Germany, Sept. 21, 1949-July 31, 1952, p. 233.

[30 ] F. A. Lutz, “The German Currency Reform and the Revival of the German Economy,” Economica, XVI (May, 1949), 122-42; E. Sohmen, “Competition and Growth: West Germany,” American Economic Review, XLIX (December, 1959), 986-1003; D. M. Wright, Post-War West German and United Kingdom Recovery (Washington, D. C.: American Enterprise Association, 1957); W. Röpke, Economics of the Free Society (Chicago: Henry Regnery Co., 1963), esp. pp. 246-50.

[31 ] Röpke, op. cit., p. 248.

[32 ]Ibid.

[33 ]The Bulletin (Bonn), Jan. 17, 1961, pp. 1-2.

[34 ] Office of the U. S. High Commissioner for Germany, 7th Quarterly Report on Germany, April 1-June 30, 1951 (Washington, D. C.: U. S. Government Printing Office, 1951), p. 80.

[35 ] For an account of the drafting of the Bonn Grundgesetz from the German point of view, see P. H. Merkl, The Origin of the West German Republic (New York: Oxford University Press, 1963), p. 269.

[36 ] Office of Military Government for Germany (U. S.), Monthly Report of the Military Governor: Report of the Military Governor, No. 41 (November, 1948), pp. 87-88.

[37 ] See W. Brandt, The Ordeal of Co-existence (Cambridge, Mass.: Harvard University Press, 1963), p. 112, passim.

[* ] Robert M. Schuchman received his LLB from Yale Law School, where he was an Earhart fellow in economics. He is currently with the law firm of Casey, Lane, and Mittendorf in New York City.

[1 ]Smith v. Holiday Inns of America, Inc., has been affirmed by the Court of Appeals for the Sixth Circuit. 336 F.2d 630 (6th Cir. 1964). The Court noted that the Civil Rights Act of 1964 would plainly render the motel’s policy of racial exclusion illegal, but, since neither party raised mootness as a defense, they considered the case on its merits.

The motel operator attempted to bring the case outside the rule of the “sit-in” cases by contending, on appeal, that the excluded Negro failed to prove that the motel’s actions were “under color of any state law, statute, ordinance, regulation, custom or usage.” The Court rejected this argument, stressing that this motel was part and parcel of a large, significant, and continuing public enterprise, i. e., the urban redevelopment project. Thus, state action exists and the exclusion of Negroes in this context violates the Fourteenth Amendment.

Despite this holding, the Court emphasized that “We do not hold that the mere fact that a State agency once held title to a piece of property affects private title forever after with some public quality.” It will be interesting to see if the Supreme Court adheres to this admonition.

[* ] Benjamin A. Rogge, a faculty advisor to New Individualist Review, is professor of political economy at Wabash College, and is currently at work on a book on the economics of discrimination.

[1 ] The findings may or may not be relevant to elementary and secondary education. At the very least, this relevance would have to be established by a study specifically directed to those two stages in the education process. In this regard, the reader’s attention is called to an article in the New Individualist Review. Vol. III. Number 1, Summer 1963, by Robert L. Cunningham, “Education: Free and Public,” in which he discusses a system of publicly financed but privately managed elementary and secondary educational institutions.

[2 ] A study of various collections of data reveals that the revenues from tuition charges cover from 15 per cent to 25 per cent of the costs at publicly-controlled institutions and from 45 per cent to 55 per cent of the costs at privately-controlled institutions.

[3 ] College faculties usually give enthusiastic endorsement to this rationing principle. Could this be because they find it easier and more pleasant to interest the already interested, to seem to produce growth in those destined to grow anyway? This in an understandable feeling, but it seems something less than sufficient as a justification for the principle.

[4 ] Adam Smith, The Wealth of Nations (Modern Library Edition), pp. 717-18.

[5 ]Ibid., pp. 719-20.

[6 ] Thus, Howard Mumford Jones of Harvard University writes, “It is a misleading function when the concept of learning is, as is too often the case, sacrificed to the concept of teaching; when, for example, adolescents are solemnly asked to rate mature scholars in terms of their entertainment value in the classroom, and an administration in turn seriously accepts these callow judgments as a factor in the keeping and promoting of scholars.” H. M. Jones, “The Service of the University,” ACLS Newsletter, Winter, 1956-57, p. 12.

[7 ] G. J. Stigler, “The Economic Theory of Education,” an unpublished manuscript.

[8 ] An interesting reason for one advantage of the college graduate over the non-college person is to be found in the comment of an executive of one of the large steel companies. He says that his company hires so many college graduates each year in its executive development program, not because they have found college graduates to be clearly superior to non-graduates, but because the union rules on seniority prevent them from advancing the really good men from the work force into positions of responsibility. The same rules do not govern the young college graduates hired directly into the management group, and from this follows the company’s search for college graduates!

[9 ] T. L. Hungate, A New Basis of Support for Higher Education (New York: Bureau of Publications, Teachers College, Columbia University, 1957), p. 7.

[10 ]Ibid.

[11 ] H. M. Jones, op cit., pp. 9-10.

[* ] Philip B. Kurland is the editor of The Supreme Court Review, and a professor of law at the University of Chicago. He is a frequent contributor to law reviews.

[1 ]E.g., Brown v. Board of Educ., 347 U.S. 483 (1954).

[2 ]E.g., Reynolds v. Sims, 377 U.S. 533 (1964); Lucas v. Colorado General Assembly, 377 U.S. 713 (1964).

[3 ] 347 U.S. 483 (1954). In retrospect, the importance of Brown inheres as much in the fact that it shook the equal protection clause completely loose from its moorings in history as in its substantive ruling. This is not to suggest that theretofore history had been a controlling factor in the application of the equal protection clause, but only that it had not been, as it would now seem to be, totally irrelevant except in its more fictionized versions.

[4 ]E.g., Peterson v. Greenville, 373 U.S. 244 (1963).

[5 ]E.g., Hamm v. City of Rock Hill, 379 U.S. 306 (1964).

[6 ] On the question of the meaning to be assigned the term “equality” see Wollheim, “Equality,” in Proceedings of the Aristotelian Society, 1955-56, London, LVI, p. 281; I. Berlin, “Equality,” ibid., p. 301. On the question of the appropriate resolution of conflict between “liberty and equality,” compare R. H. Tawney, Equality (4th ed.; New York: Capricorn Books, 1952), with F. A. Hayek, The Constitution of Liberty (Chicago: Univ. of Chicago Press, 1960). The comparison is not intended to suggest that “liberty” is the watchword of conservatism and “equality” the battle cry of revolution.

[7 ] Bell v. Maryland, 378 U.S. 226 (1964)

[8 ] Arthur J. Goldberg, “Equality and Governmental Action,” 39 N.Y.U. L. Rev. 205, 207 (1964)

[9 ] “The Supreme Court, 1963 Term, Foreword,” 78 Harv. L. Rev. 143 (1964).

[10 ] N. A. Rockefeller, The Future of Federalism (Cambridge, Mass.: Harvard Univ. Press, 1962), p. 29.

[11 ] K. C. Wheare, Federal Government (4th ed.; New York: Oxford University Press, 1964), p. 14.

[12 ] Schneider v. Rusk, 377 U.S. 163 (1964).

[13 ] Aptheker v. Secretary of State, 378 U.S. 500 (1964).

[14 ] A. M. Bickel and H. Wellington, “Legislative Purpose and the Judicial Process: The Lincoln Mills Case,” 71 Harv. L. Rev. 1, 3 (1957).

[15 ]The Spirit of Liberty (2nd ed.; New York: Alfred A. Knopf, 1953), p. 164.

[16 ] P. A. Freund, “To Amend—or Not to Amend—the Constitution,” New York Times Magazine, December 13, 1964, pp. 33ff.

[* ] G. Warren Nutter, professor of economics at the University of Virginia, is an authority on economic planning in the Soviet Union, and the author of Growth of Industrial Production in the Soviet Union.

[1 ] N. Balchin (pseud. M. Spade), How to Run a Bassoon Factory; or, Business Explained and Business for Pleasure (London: H. Hamilton, 1956).

[2 ] In fact, to my knowledge the only scholar to devote himself in earnest to this task is Eugene Zaleski of the National Center of Scientific Research in France. To anyone who wants to know the true mechanics of the Soviet planning process. I strongly commend Zaleski’s treatise Planification de la croissance et fluctuations économiques en U.R.S.S., a work to appear in three volumes. The first volume was published in French in 1962, and an English translation is now in press. I will try here merely to sketch, in boldest outline, the basic characteristics of the process- at least, as I understand it.

[* ] Edwin Harwood did his undergraduate studies at Stanford University, is currently a graduate student in the department of sociology at the University of Chicago, and has published several articles in scholarly journals.

[1 ] J. A. Schumpeter, “The Communist Manifesto in Sociology and Economics,” The Journal of Political Economy, LVII (June 1949), 208.

[2 ] A good critique of the wholistic presuppositions of the French school of sociology can be found in F. A. Hayek, The Counter-Revolution of Science (New York: The Free Press of Glencoe, 1964).

[3 ] A. Gerschenkron has given an interesting economic explanation of the attraction which corporative and mildly socialistic ideological currents had in France, even among the entrepreneurial and financial bourgeoise. “Economic Backwardness in Historical Perspective,” in B. Hoselitz, ed., The Progress of Underdeveloped Areas (Chicago: University of Chicago Press, 1952).

[4 ] Cf. Emile Durkheim, “Preface to the 2nd edition,” The Division of Labor in Society (New York: The Free Press of Glencoe, 1964).

[5 ] E. Mayo, The Human Problems of an Industrial Civilization (New York: The Macmillan Co., 1933), Chs. 6-8; W. L. Warner and J. O. Low, The Social System of the Modern Factory (New Haven: Yale University Press, 1951), pp. 181-196.

[6 ] T. Parsons, “A Revised Analytical Approach to the Theory of Social Stratification,” in R. Bendix and S. M. Lipset, eds., Class, Status and Power (New York: The Free Press of Glencoe, 1963), pp. 92-129.

[7 ] See R. H. Tawney, The Agrarian Problem in the 16th Century (New York: Longmans, Green and Company, 1918); C. Hill, The Century of Revolution: 1603-1714 (Edinburgh: Thomas Nelson and Sons, Ltd., 1962).

[8 ] K. Davis and W. E. Moore, “Some Principles of Stratification,” American Sociological Review, X (April 1945), 242-49. W. L. Warner’s Social Class in America develops a similar theory of stratification. (New York: Stratford Press, Inc., 1949), p. 8.

[* ] Robert L. Cunningham, professor of philosophy at the University of San Francisco, is a contributor to philosophical journals, and currently engaged on a major work on social justice.

[1 ]Justice (New York: Pantheon Books, 1955), p. 58.

[2 ]Types of Ethical Theory (New York: Macmillan, 1886), II, p. 122.

[3 ] Bertrand de Jouvenal, The Ethics of Redistribution (Cambridge: Cambridge University Press, 1951), p. 14.

[4 ] “The Concept of Social Justice,” in R. B. Brandt, ed., Social Justice (Engelwood Cliffs, N.J.: Prentice-Hall, 1962), p. 7.

[5 ] Gustavo del Vecchio. Justice (New York: Aldine, 1952), p. 142.

[6 ] University Economics (Belmont, Calif.: Wadsworth, 1964), p. 72.

[7 ] “Justice and Liberty,” Proceedings of the Aristotelian Society, 1950-51, London, LI, reprinted in M. Minitz, ed., Modern Introduction to Ethics (Urbana, III. University of Illinois Press, 1958), p. 468.

[8 ] “The Common Man,” Thomist, XII (1949), 285.

[9 ] Michael Polanyi, The Logic of Liberty (Chicago: University of Chicago Press, 1951), p. 105.

[10 ] Kolnai, op. cit., p. 303.

[11 ]Ibid., p. 295.

[12 ] “Let Us Begin: An Invitation to Action on Poverty,” Harpers, March, 1964, p. 24.

[13 ] Cf. New York Times Magazine, October 11, 1964; Capitalism and Freedom (Chicago: University of Chicago Press, 1962), Chs. 11, 12.

[14 ] “Justice and Equality,” in R. B. Brandt, ed., op. cit., p. 42.

[15 ] John Courtney Murray, The Corporation and the Economy (Santa Barbara, Calif.: 1959), p. 43.

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WEAVER ON SOCIETY, PAST AND PRESENT: - Ralph Raico, New Individualist Review [1961]

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WEAVER ON SOCIETY, PAST AND PRESENT:

I.

THE SOUTHERN TRADITION

2.

THE HUMANITIES IN A CENTURY OF THE COMMON MAN

Reflections on the Loss of Liberty

The Fusionists on Liberalism and Tradition

H. L. Mencken and The American Hydra

NEW BOOKS AND ARTICLES

AS A MAGAZINE . . .

VOLUME 3, NUMBER 4, SPRING 1965

EDITORIAL STAFF

EDITORIAL ADVISORS

COLLEGE AND UNIVERSITY REPRESENTATIVES

IN MEMORIAM Robert M. Hurt

The Revival of Traditional Liberalism*

Constitutional Mythology

Prospects for South Africa

COMMUNICATION: Note on the Election

Economic Liberalism in Post-War Germany

Property Law and Racial Discrimination

NEW BOOKS AND ARTICLES

DeGaulle and Erhard Who are the men behind them?

Lyndon Johnson Got 130% of The Votes Needed to Lose!

VOLUME 4, NUMBER 1, SUMMER 1965

EDITORIAL STAFF

EDITORIAL ADVISORS

Financing Higher Education in the United States

Trends in the U. S. Supreme Court

How Soviet Planning Works

WHAT YOU CAN DO TO HELP NIR . . .

Collectivism in Social Theory

Justice, “Needs,” and Charity

COMMUNICATION: The 1964 Election

*The Revival of Traditional Liberalism**

COMMUNICATION:

Note on the Election

COMMUNICATION:

The 1964 Election