Willmoore Kendall, Irascible Drunken McCarthyite, YES; Brilliant Scholar, NO. Part I. Socrates, Mill, and Free Speech

 

I've spilled considerable ink to date on Carl Schmitt, having reviewed several books on the Nazi jurist/theorist and mused about his lasting effects on subsequent right-wing movements. I've also spent a little time talking about Curtis Yarvin, a monarchist who is currently a darling of the new right. Now, in anticipation of reviewing a fairly recent biography of Willmoore Kendall, I intend to devote a few blog entries to that "conservative" hero, who was a teacher, close friend and colleague of William F. Buckley, and who also seems to have been accepted by nearly everyone who has read him as a formidable thinker who was, unfortunately for political theory, derailed by his inability to pass on any available drink or attractive woman.

The Man and the Myth

Kendall was born in Oklahoma in 1909. His father was a radical preacher, whose blindness is said to have made him resentful and tough on his precocious son. Willmoore graduated high school at 13 and then enrolled at Northwestern, but things didn't work out for him there, and he transferred to the University of Tulsa. In 1932 he became a Rhodes Scholar, spending  a couple of years studying under the historicist R.G. Collingwood at Oxford. 

He metamorphosed from Trotskyite to majoritarian liberal during the years before he completed his dissertation on John Locke at the University of Illinois at Champaign-Urbana in 1940. Reportedly, it was covering the Spanish Civil war for the United Press that resulted in his shift toward the vehement anti-communism he maintained for the rest of his life. 

Kendall got a couple of brief professor gigs before the Second World War, at which time he started doing intelligence work for the U.S. Government, particularly in Latin America. (I can't help but think of him as one of the characters duped by  Mr. Wormold, the "atomic" vacuum cleaner salesman in Graham Greene's Our Man in Havana.) After the war he got a very nice position at Yale where it is said that his students loved him and everybody else hated him. (Yale eventually bought him out of his tenure for a tidy sum.) One of his students in New Haven was William F. Buckley, and the two conservatives took to each other almost immediately. Buckley was very rich, which allowed him to start The National Review after graduating, and he brought his old mentor on board (where Kendall again fought with everybody, came to meetings drunk, and had numerous affairs). Along with Buckley, Kendall was one of the few "intellectuals" to stick with Congressman Joe McCarthy regardless of the latter's often absurd and cruel accusations according to which anybody who had ever befriended a socialist should, at the very least, lose their livelihood.

In 1963, Kendall launched the Department of Politics and Economics at the University of Dallas, and remained there until his death in 1967. He had, at the time at time of his passing at 58, never written the "big book" everybody had expected of him for so long.

I consider his dissertation, which was later published as a book, to be the best thing he did complete. It focusses on a legitimate issue: the tension between Locke's democratic majoritarianism and his belief in natural rights. I won't discuss that issue at present, however, but will save it for Kendall Part II. Here, I will concentrate on Kendall's use of Plato's Crito and Apology dialogues--and of the execution of Socrates generally--to argue against free speech and "open societies."

Plato, Yes; Socrates, No

As indicated above, Kendall liked to fight, and in his 1959 paper, "Was Athens Right to Kill Socrates?" he starts by complaining that pretty much everybody who has ever written about Crito seems to have ignored what it actually says.#  He accuses them of ignoring close study in favor of using the tragedy of Socrates' sentence as a propaganda device. These faux scholars were all taken to claim that the moral to these esteemed dialogues is that there should never be any limitation to freedom of speech. (Because, after all, if Socrates' right to annoy Athenians by questioning them had been unabridged, there would have been no charge, no conviction, no sentence, and no drinking of hemlock.) 

Now, it is of course true that if Athens did not want to limit speech, Socrates would not have been poisoned as a result of this case. But even if we agree on both of these: 

• It would be a good thing if Socrates had not been poisoned by Athenian authorities; and

• If Socrates had been provided with absolute freedom of speech in Athens, there would have been no poisoning of Socrates by the city; 

We cannot derive the conclusion that:

• Therefore, there ought to have been no limitations on freedom of speech [and, maybe try to give the impression that we can also conclude that there should be none anywhere]. 

Logical Shortcomings

Why does this conclusion not follow? There are several important reasons. First, while we may agree that Socrates' conviction was a downside of the Athenian laws at that time, there may have been a number of worse outcomes if their speech laws had been looser than they they were. That is, even if everybody agreed that Athens was a better place before Socrates was snuffed out (which, of course, they didn't), that particular outcome was just one particular, well-known consequence of the applicable laws--and one that may have been swamped by numerous others. 

That point is made (though somewhat confusingly) by Kendall, but either he never realized or preferred not to mention that Mill would certainly have agreed with it. A confirmed consequentialist himself, Mill argued for freedom of speech only to the extent that it wouldn't result in net harm to any jurisdiction. I will not enter  here into the matter of just how free speech should be in order for "utility to be maximized." My point is rather that this question remains open, however one feels about Socrates' conviction and punishment.

Second, as Kendall himself seems to understand and acknowledge at the beginning of his article, laws and morals are not identical. As he puts it,

 "Ethical inquiry is prior to and different from political inquiry...and, in consequence, certain to call for its own techniques and procedures, as, in its turn, political inquiry...will." 

So, even if all were to agree (which, of course, we don't) that Socrates' punishment was immoral, it might still have been required by law. In that case we might hold that while it was (legally) correct to put this troublemaker to death, there is nevertheless a moral obligation to change that law. Obviously, if (i) there is no conflict between putting Socrates to death and any known moral principle(s) (something which, presumably, Kendall believed in spite of his late turn toward Christianity); and (ii) the applicable laws indicated that whatever the jurors conclude should done to  the accused is acceptable, we again have no reason for restricting speech. For surely correctly passed laws that are not evil should be obeyed. One might, again, be sad about Socrates' passing, but there need be nothing essentially wrong with either the sentence or its effects, from either moral or legal standpoints. It would be no different from sorrow being produced by attending the sentencing of a murderer one happens to be in love with.

Because there are various ways to understand "good" in our first premise and "ought" in the conclusion above--morally, prudentially, and legally, the argument needs much more to be successful. Kendall is very unclear about this, but this critique of the above argument is consistent with everything he says, and there is little doubt that he would assent to it. The problem is that he accuses both all those who don't think Socrates should have been put to death and all those who believe in the liberalization of speech laws of being fooled by this equivocal syllogism--without providing a single example of either a political theorist or Plato scholar who was confused in this way.

Again, as Mill understood this morality, there was  simply no ethics apart from utility. We have seen that Kendall distinguishes morality from legality, and in various parts of this paper he also at least seems to distinguish prudential from moral reasons. However, no reason he adduces for allowing societies to be impermissive is free of the utility claims. Indeed, he simply seems to agree with Mill that an absolutists stand regarding speech would result in net harm. Perhaps there were numerous "lefties" in the 50s who went farther than Mill on this matter, but Kendall doesn't mention anybody else who ever opined on speech in this paper except for Karl Popper. 

But Popper also didn't believe that it was never right for a government to limit speech. In his The Open Society and Its Enemies he specifically warns that unlimited tolerance of certain types of speech could, paradoxically, lead to speech suppression, which is, incidentally, also an argument that Kendall makes in his paper. The difference, of course, is that Popper thought the Athenians had made the wrong choice, claiming that Socrates was not himself an intolerant type, and, as a result, total utility was severely impaired by his being put to death. 

I have no brief to file for either party on the matter of either the net utility costs/benefits or the strictly moral culpability of this execution. My interest here is solely in showing the deficiencies of Kendall's paper. And in that regard, it must be pointed out that Popper was no more a "simon-pure" free speech absolutist than Mill--or Kendall himself.

But there is more, a Third problem with the syllogism above. And it is a problem that should be evident to any good majoritarian. It is that there is actually a reason for requiring or prohibiting various activities that involves neither morality nor (ex post) utilities. A resolute democrat will hold that most--though not all--government policies should be those that the citizens want, even if they are wrong in their estimates of net utility effects. If this democrat also believes in an objective morality that allows her to know that some majority desired policy is wrong, that may be a good reason for a limitation. For such a democrat, citizen wants will take precedence over arguments for constraints stemming from utility estimates claimed to be better or more expert. But moral considerations may be given the final word.

My Own Take on Democracy*

For what it's worth, I am not such a theorist. I doubt the infallibility of my "moral sense" at least as much as I do the "expertise" of sociologists, economists and other pundits regarding what we should expect if a vote goes one way or another. 

But I believe in the applicability of another category of constraints. In my view, certain limitations are imposed on what a society may enact by the nature of democracy itself. For example, real democracy requires equality of votes and voters, so certain types of prejudice or unequal treatment may not be passed into law. In addition, there can be no real democracy without free political speech, association, assembly and press. (How and the extent to which those must be protected are difficult issues.) 

So, I add yet another type of "good" and "ought." to the premise and conclusion of the simple argument above, which, of course, makes the fallacy of equivocation even more likely. And it might be argued that Socrates' activities should have been protected by those limiting factors, though that argument would not be a simple one. Again, I won't be making any such claim here. I would simply present my democratic principles and, given their acceptance, leave the matter of Socrates' execution to Plato scholars. For two things I am not are historian and Plato scholar. 

In spite of his self confidence (not to say arrogance), Willmoore Kendall closely resembles me in also being neither historian nor Plato scholar. I will leave to my readers the determination of whether he was much of a political philosopher. I just hope their assessment will not be based on the praise lavished on him in right-wing organs or the assumptions elsewhere that such praise, being so widespread, must have been merited.

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# It's worth mentioning that Kendall says much the same thing in his dissertation about prior Locke scholarship--that not only has nobody ever fully come to grips with Locke until Kendall, but most people who've written on Locke must not have bothered to read him. I will also note that he doesn't mention the name of a single allegedly confused Plato scholar in this Socrates paper (unless Karl Popper is thought to have been one).

* The most complete statement of my views on democracy can be found in my book and in these two papers: 1 and 2. But for those who are interested there is also a paper on voting rules and one on Eckstein and political stability. And, of course, there's a ton of additional (less thoroughly baked) material on this blog.

What is "Direct Democracy"? What is "More Democracy"? What is Less?

 

The dawn of the 21st Century in the U.S. resembled the opening of the 20th in producing an explosion of interest in participatory democracy. This was true particularly on the West Coast, where "the Oregon System" got going around 1902 and the Schwarzenegger Party of One took over in 2003. Both eras were fueled by a desire for direct democracy--The Initiative, The Referendum, and The Recall--to take its place alongside (if not entirely supersede) government by elected or appointed representatives of the people.

If we think that arrangements according to which citizens make policy themselves is necessarily more democratic than those in which others make it for them it will seem obvious that use of initiatives (where "the common folk" write their own laws rather than relying on legislatures and executives) must make a jurisdiction more democratic.

But, to quote Ralph Fiennes's Laurence Laurentz in Hail Caesar, "Would that it were so simple." 

Is it the making of the law or the opportunity to be involved that counts? Suppose that, on average, about 60% of a populace votes in their legislative elections but only 20% vote on some ballot question. If we know in advance that those are the likely levels of participation, will we still say that a law enacted via initiative is the result of a more democratic process than one enacted by a legislature?

Or take term limits. It is often argued that without relatively short terms of office we cannot have real democracy, because of "the power of incumbency." If incumbents almost always win, the results of elections can seem predetermined. On the other hand, barring a favorite candidate from running simply because she has already had the job seems the opposite of system in which the electorate can get what it wants.

These "paradoxes of democracy" can even stymie well-known experts in the field. For example, in his review of three books on California's move toward a "hybrid democracy" of legislature and the people working side-by-side, Rick Hasen concludes that although voters are judicious in the types of things they think should be passed by ballot initiatives, they "might be used to enact political reform....Though the public policy of the state cannot be directed primarily by the voters through plebiscitary democracy, voters can take steps to improve the system by which the legislature and governor make policy....This is, perhaps, a more modest version of hybrid democracy, but also one that is a more realistic vision of what voters can do at the ballot box."*

While that may be an encouraging take on the matter, it seems to me to reflect Hasen's own sanguine attitude rather than sound logic. It seems to me, on the contrary, that if there is a single area that ought to be off-limits to voters, it is that within which electoral rules are made. For democracy can be restricted as easily as enlarged. While Hasen certainly seems to want democracy increased (without saying precisely what that would mean), surely some majorities would like it lessened. Basic electoral principles and systems must therefore be enshrined in constitutions in ways that prevent alteration....or democracy will always be imperiled.

It seems, then, that we need to provide a few definitions, even if a couple of them turn out to be stipulative, or we will never make any progress in determining what provisions make a scheme more or less democratic. We can start by laying down this basic principle:

A. A population P enacting a law L is more democratic than representatives of P enacting L.   

Obviously we will need to be more specific about what it means for a group to actually enact something. So let us add that 

B. A population P has enacted a law L whenever every adult in P has been given the easy opportunity to either accept or decline L and, pursuant to a basic constitutional provision setting forth the manner in which prospective laws may be put before the people, a majority of those voting have opted to accept L. 

(I do not here attempt to define "easy opportunity.")

Now, here are a few relevant (and I hope uncontroversial) facts:

1. Elections cost money. 

2. Any particular period of time chosen within which it is assumed that voters will not have changed their minds since last making a choice on an issue will be arbitrary.

3. There is such a thing as voter fatigue: constant elections may result in decreasing interest regardless of the relative importance of the issue(s) involved.

4. Signature requirements for forcing a special election vary quite substantially among jurisdictions. That is because, other than a majority requirement for success (which is a simple function of the assumed equality of voters and their votes) any particular percentage used in an election rule (e.g. of voters in the last election or of registered voters or to override a veto) will be arbitrary--a mere matter of convenience rather than a basic axiom of democracy.

5. Paying residents enough to encourage substantial increases in electoral participation is likely to be costly.

5. Making electoral participation compulsory is unpopular, and even if it is associated with fines for failure to vote may also be costly to administer.

With these definitions and factual propositions stipulated, we can safely claim that even if successful initiatives are "more democratic" than traditionally enacted statutes, there may be reasons for opposing such changes anyways. That is, even for a democracy zealot like me, there are other considerations that likely come into play. We may know, for example, that few people will vote in a given initiatives, or that that an initiative is more likely to be dominated by special interests than would be an enactment of the same provision by a legislature. Again, we may understand that numerous policy issues are much too complicated to be correctly handled via initiative, or that ballot questions provide insufficient opportunity for deliberation and may nevertheless be wildly expensive. We may even understand that signatures may easily be bought. 

As we actually DO know all of those things. I think we should conclude that even if initiatives provide more democracy than conventional methods of passing bills, they are a bad way to run a railroad. 

But what about recalls and referendums? They also require special elections, so many (if not all) of the same hurdles seem to arise. To determine the democratic value provided by those mechanisms, I think we will need to agree on an additional principle. 

C. It is essentially undemocratic for a populous to put up with either a provision of law or an elected official that the majority disapproves of for more than one year, and this is the case even if the law or the official has been put in place by democratic means.

No doubt, picking one year for all terms of office is arbitrary. But perhaps it will be agreed that one day is too little and six years too much. In addition, it seems obvious (especially today) that an incredible amount of damage can be done by a single unpopular leader within a year. Because of the above financial and other costs of special elections mentioned above, I believe that if recall elections are allowed within a year, an extremely high signature requirement should be required: even perhaps something like more than the votes received by the recalled individual when elected to the office in question. That, seems so high a bar, that shorter terms of office might be a preferable alternative.

While the democratic shortcoming of being stuck with an unliked representatives for a long periods can be handled either by allowing for recall elections when some percentage of the people demand it, or simply by shortening terms of office, that is not the case for many provisions of enacted policy. Not all sorts of statutes or regulations may allow for "sunset" provisions--rough equivalents of term limits. Thus, authentic democracy seems to require the possibility of repeal by referendum, which is a rough equivalent of recall. 

It will be argued that we should have the same concerns with respect to referendums regarding participation levels, domination by special interests, opportunity for deliberation, and high costs that were set forth above for initiatives? I don't think that is correct, however. In some important ways, NO is different from YES. 

Few regular citizens, if any, may have a very good sense of what will be produced by a successful initiative.# The situation is quite different with referendums: the populace may know quite well that they don't like what has been foisted upon them. After all, a new law may be having clearly deleterious affects on them personally. Furthermore, as repeal will put them in the position they held prior to the statute's (or regulation's, or executive order's) enactment, there need not be the same "What the heck are we doing?" anxiety surrounding the proceeding.

Of course, many bills are constantly being made into laws: in some jurisdictions the process is nearly continuous. As mentioned above, elections may be tiresome, costly and corrupt, and signature requirements are sure to be random. My (perhaps not even half-baked) suggestion here would be to allow for repeal votes at annual, scheduled elections, on any matter enacted within the prior eighteen months, so long as such referendum is requested by a small number (say, two hundred) registered voters. This might subject many policies to referendum, but, not only could those who dislike "radical democracy" ignore every question that doesn't interest them, if all terms of office were reduced to one year, and initiatives abolished the public could be relieved of dealing with more volatile ballot questions entirely.

------------------------------------------------

*Rick Hasen, "Assessing California's Hybrid Democracy," California Law Review, October, 2009.

# In fact, one canny observer, after moving to Oregon eventually decided that the most prudent course of action would be to vote NO on every ballot question regardless of its subject matter. I'm referring here to Richard Ellis, who came to have no use at all for initiative petitions, but, in my view wisely brings no similar case against referendums or recalls. See his 2002 book Democratic Delusions: The Initiative Process in America.

A Psychological Interlude (Or: Let Me BE the Constant Dancer)*

 

Something different today: I will dump little or no democratic theory on anybody, and hold off on my discussion of Recall until next time. Instead, here is a quick muse on the psychological toll that living in a country that is now so obviously corrupt, power-hungry, and simply evil may take--even on those who were never under any illusions about their country ever being particularly altruistic. 

I have written here before about the current administration causing me to hide under my bed,  but I should admit that was partially based on the theory, formerly held by J.D. Vance, that Trump might be America's Hitler. That, along with my half -Sephardic (Damascus), half Ashkenazy (Munich) bloodlines and the "Jews will not replace us!" business scared me. (My father was a Holocaust survivor, my mother's family was expelled in a Syrian pogram.) 

But the close Roy Cohn, Jeffrey Epstein, Stephen Miller connections  seem to have held. In any case, I have come to doubt there will be much danger from the current Administration on the anti-Semitism front. Maybe every dark-skinned or foreign born resident has good reason to worry, but it seems pretty clear to me that there is no imminent personal danger to me or my non-observant family.

As indicated, though, my bed-burrowing was only partially a result of that particular fear. Most of it stemmed from constantly watching, reading or seeing news or commentary that clearly demonstrates how awful we have become as a nation. So, maybe not Hitler, but Putin or Netanyahu. Worse than Orban or Berlusconi anyhow. 

This has not merely been mildly troubling to me, but painful, just as it is to a number of my friends. And some of these poor souls have entirely given up watching  or reading news. Of course, these decent folk likely have better--or at least less obnoxious--reasons for their psychological state than I do. Many of them think--or thought--that the U.S. was special: a beacon of decency in the world. They admired our post-WWII activities as well as our Constitution and now suffer from what they consider a precipitous fall from virtue. However we may be doing personally, as a nation pretty much everything that can be ruined has been ruined.

But how were we as a nation prior to the current thuggery? I have never been particularly knowledgeable about U.S. foreign policy myself, but have had the pretty clear sense that, at least since Vietnam, it has quite often been contemptible. And, as any regular readers of this blog will know, I think our Constitution is, in a word, terrible. Maybe OK for its day, but nearly useless today. So....why am I so upset every time I now hear the word "Greenland" or "Midterms" on the news now? And why do I (just as the asswits on Fox News accuse me each day and night) take no pleasure from any new high reached by any stock exchange or a promise of checks soon being sent to every poor citizen? 

Certainly, at least part of my response has a noble element: I don't want my (the? this?) country to hurt more people, to discriminate further or to accelerate its abuse to Earth's fragile environment. That aspect seems defensible. But honestly, my psychological torment mostly doesn't stem from anything so noble. And I recognize that the country has never been much like a real democracy, so I don't--and shouldn't--have any feeling of personal responsibility for the terrible things the U.S. is now up to. It's them, not me.

Could it be that others, both here and abroad nevertheless find each American culpable--at least to some minute degree--for the country's current degradation, and I am pained by that? It's possible, but I really don't think so. My friends, along with most people with any sense anywhere, realize that MAGA is not the U.S. 

Well, what is it then? 

Let me say first that I have no idea who the kind and likely masochistic people are who read this blog (Thanks, btw). I note that I have begun forwarding these posts to Substack, where one's reader list is public. Here, there's not even a whiff of a hint of a clue available to me, just a numeric total. So there's no way to know, e.g., if any of my readers here also (at least occasionally) listen to a bit of my music. For all I know, every one of you is a poli-sci student in the Balkans who is required by his/her instructor to read at least one example of bad American political philosophy once every two months. Or maybe it's just to help recognize awkward English.

I wonder about this, because the (also teensy, of course) number of people who do care to take in a bit of my musical rants once in a while may know that my improvs have been pretty melancholy of late. Consider this and this. Those dear souls will therefore recognize my inflamed state and may already have attributed it to things I have denied above. 

Well then, what the heck is causing it? If it's not either a fall from prior grace or a fear that others may think I sympathize with the evil, stupid grotesqueries of Trump and his associates? And if it's also not anything that is likely to personally affect me or my family or friends in the near future, what is producing my increased sickness unto death?  Am I really more altruistic than I let on? Feverish about the harm being done to those I don't know and will likely never meet?

Well, if anybody cares, I think I may have figured it out; and in my own particular case (I absolutely make no accusations about anybody else!) I have to admit that it isn't very flattering. I believe it is the result not just of hyper-polarization, which, of course, is affecting pretty much everybody in the world at present, but mostly results from what is simply an unappealing personality trait of mine. 

I want MAGA supporters to suffer, and it pains me deeply when they prevail on any matter. This, I believe, is partly a matter of wanting to be right, even hoping that a little harm befalls those who disagree with me. So, e.g., when the Dow goes up, or Hegseth kills some poor fisherman, or we "annex" another country, and this makes MAGA gleeful, I am consequently desolate. 

In my defense, while this way of reacting is sure to be more a function of childish habits of handling conflict than anything one ought to be proud of, it is also deep-seated and not anything that it would be easy for any septuagenarian to "fix."#

Again, I don't mean even to hint that more than the tiniest fraction of my fellow-sufferers share this unseemly characteristic. But in my own case, I can't deny a long-standing proclivity to revel in the failure of those with views adverse to mine, and to agonize over their successes. 

Anyhow, even if you are wildly different from me with respect to this unattractive characteristic--as you almost certainly are!--you too may benefit from figuring out precisely why the nightly news pains you so much. If, e.g., it is purely altruistic in your case, that is something you can be proud of. Perhaps that will help.

Whatever may be the causes of your own feelings of helplessness, I sincerely hope that you can benefit from a similar investigation into their emergence. (And maybe in your case--unlike mine-- attending protests or having discussions with like-minded others will help.)

So, hang in there!!  IT may not ever get better, but YOU can.

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* I apologize for not trying to explain this cryptic title, but tbh, I don't really understand it myself. It came to me in a dream....even with an accompanying tune! (And it may actually have been "ready" rather than "constant" and/or "player" rather than "dancer.")

# In a way this sort of flaw isn't very different from my rooting for opponents of the New England Patriots football team. It's partly anti-homer, partly anti-favorite, partly anti-Kraft. Undeniably, there is a nasty, contrarian streak in me that results in my rooting not just for underdogs, but against those who identify with favorites. 

Ah, Why Can't All Self-Proclaimed Democracy Advocates Just Get Along?

 

I mean, Prof. Charles Beitz of Princeton wants more and better democracy, and I want more and better democracy. He says our system is badly broken, and I agree. We both think Blacks, Latinos, and the poor are discriminated against in electoral proceedings. You'd think that would be sufficient to produce a close alliance. Furthermore, my tendency to quibble with distinguished political scientists over similar matters is hard to deny. Perhaps a dozen of my "Hornbook" reviews focus on the same stuff. Am I the problem?

The thing is, the many agreements between all these poli-sci mavens and me hide a basic disagreement regarding just what democracy is--and why anybody should want it in the first place. I generally want more democracy, while my adversaries, seeing many of the same current flaws, often claim that additional Madisonian constraints will provide the solution. 

FWIW, I've lately come to think that the best way of determining (through my own idiosyncratic dark glass) who are and who are not authentic democrats, rather than supporters of new constraints on representative majoritarianism, is whether the subject can support a robust recall provision. If they think such provisions "would likely cause more trouble than they're worth," I am likely to conclude that they have a problem with majority rule, generally. If they say that recall is actually contrary to democracy, because it allows for the overturning of fair elections, they seem to me not to have considered that constitutional provisions can (and should be) changed precisely to remove any such alleged contradictions by beginning to explicitly contemplate recall. Why is this crucial? Because people change their minds, and when they do, democracy requires that those alterations in citizen desires have real effects on government. No congruence or responsiveness--no democracy.

Anyhow, God bless the early 20th Century Progressives, who got more of this stuff right than anybody has since.

                  W. S. U'Ren (1859-1949)

Oh, and you can find my new review of Beitz's recent Tanner Lectures (along with a dozen other bellicose screeds of mine) here.

Matthew Kramer's Book on H.L.A. Hart

Once you get the Austin/Kelsen/Schmitt/Hart/Fuller/Finnis/Dworkin bug, it's pretty hard to get over it. Where do laws come from? Why should we obey them if we don't agree with them? What if a law is particularly onerous--should we still obey it, or is civil disobedience then in order? If statutes require constitutions, what, if anything, do constitutions require in order to come into being themselves? If it's some sort of mysterious "constituent power," what is it that make a particular group of people a "constituency"? 

Oh, and if vehicles are prohibited on the boardwalk, does that mean we can't skate there??

It's great stuff. And at times like now, when the entire world is rapidly descending into hell in a moth-eaten handbasket that is (unsecurely) wrapped in a smelly, rotten blanket, these questions--as well as some of their near- and distant-relations (including some in-laws!)--provide lovely distractions. [NB: to be really safe under our present dire circumstances, it may be wise to continue to hold your noses while you read.]

Anyhow, the fact that the subject matter is so fascinating is a great reason to read Matthew Kramer's 2018 book on Hart's theory of law, which I just happen to have reviewed here. 

A Distressing Realization for a Democratic Theorist

It's not particularly fun to get old. But for those of us lucky enough to have a comfortable home, sweet, patient partner, awesome doggie, regular visits from (healthy) kinder, sufficient income to live on, and all the other Maslow stuff, it isn't too awful--especially if one's health allows for continuing research in areas of interest, places to publish rants, working synthesizers, people to play music with, etc.

But, but, but...

For at least the past decade, my main academic interest has been democratic theory: what makes a system good or bad, what can be done to improve a mediocre one, and so on. The point is that I have come to realize in my dotage what many of my readers likely have known for many years. It is this:

While I suppose that a return to something like the “democracy” we had prior to Trump remains (distantly) possible, I have begun to believe pretty firmly that that any move to a more authentic or radical democracy in which each vote and person is treated equally and minorities receive appropriate voice is preposterous, an utter impossibility. And this is not just in the U.S. but everywhere that doesn’t have something that at least approximates some sort of fair majoritarianism at present (if there be any such jurisdictions).

I mean, various wealthy elites plus Madison-recognized cross-cutting obstacles of size and diversity have worked to keep something like a liberal republic in place for a couple hundred years in the U.S. and several similar “democracies,” but because of the growth of the internet, the multiplication of media sources, AI, the complete sorting of the two parties, etc., etc., it is hard to see how any future flourishing of democracy could be anything but a silly dream.

Here's why.

People of all stripes have items that are particularly important to them—say a "fair" distribution of wealth, or white Christian supremacy, or the exclusivity of a single tax on land, or a woman’s unrestricted right to choose an abortion, or complete deregulation of medicine or currency, or whatever the hell.

Stuff like that is what groups most want. You can just ask them and they will tell you. Maybe it's free health care or free guns. Maybe it's something to do with gendered bathrooms or trans athletics.

Some of these groups may join with others to make up their political parties. But getting more democracy cannot be included in their bundle of desiderata since each group can be expected to be OK with the idea of additional self-rule only if they expect that change to promote their more precious goals. And, of course, it will not do so as often as it will.

That's why the two major parties in the U.S. go back and forth on things like the Senate Filibuster: they like it when it helps them stop laws or other changes they don't want, and they dislike it when it helps their opponents do the same thing. That it (and the Senate itself!) is ALWAYS an essentially undemocratic institution is irrelevant. What's most important to most people is winning, so they want procedures that will make victory more likely.

Now, I don't deny that there could be a party devoted to real democracy (though perhaps the “Democratic Party” should not be its name). Maybe FairVote or CES will start one. But such a party can succeed only in such times and places in which it receives the approbation of those with alternative primary goals. And these other groups will always remove their support for the (real) democracy party whenever majoritarianism seems to them to present a barrier rather than a quicker road to what they REALLY want.

I’m afraid that this means that whatever electoral reform is your favorite—RCV, Approval, MMP, multi-party parliamentarianism, or even something really cuckoo, say an imagined eccentricity like “Only Unanimity Now!”—can never succeed in any significant area for any substantial period of time.

There is therefore absolutely NO ROAD for any such group...which I suppose is why the old "progressives" and "pops" never made anything but short-term, limited-area headway with their attempted reforms.

In sum, work hard enough (or cheat or get lucky) and you may eventually get your Nozickian anarchy or your Trotskyan version of Marxism or your Flat Earthism, or your militaristic MAGA homogeneity, or your Sharia, or even your Georgeism (though I really doubt the last one), but, tragically, what you will never, never get is real democracy; for that would require a majority of the people to accept that they may never get what they most desire.

Ah well.

If it's any consolation to you (it is to me, certainly), I intend to keep writing about this stuff anyhow. I mean, it remains diverting. And heck--without my studies I might never have finally learned THIS!

Schmitt IV: An Important Book, An Additional Democratic Constraint, and My Error in Schmitt III

My latest review over at the 3:16 AM Magazine “Hornbook of Democracy Book Reviews” is of Lars Vinx’s generous helping of translations of fascinating works by the Weimar-era legal scholars Hans Kelsen and Carl Schmitt on issues surrounding constitutional guardianship. Readers can watch in admiration as these two men battle over what constitutions are and what organ of “the people” should be charged with preventing them from being little more than dead letters–just a bunch of important sounding proclamations to which nobody has to pay much attention. (Saying how much you absolutely love your own particular constitution, or how amazingly brilliant the “Founding Fathers” were doesn’t count here.) Because of the many echoes of the breakdown of Weimar democracy in today’s world (for a good overview of similarities, see this), and because both Schmitt and Kelsen have very deep and interesting things to say about law, democracy, and society, Vinx has given us a very timely book. 

While his work is sure to provide intellectual benefits to nearly everyone interested in the issues discussed, I hope my readers will forgive me for taking a moment here to note that I have personally received a particular reward from reading this book (if learning of one’s errors count as a reward). 

In a blog entry here in September of 2023 (Where does the time go?!?), based on the idea of "CHOICE Voluntarism" that I developed in my book on democratic theory, I wrote that “humanness might be thought unnecessary as well as insufficient for voting status.” I elaborated this thought using the alien Vuvv found in M.T. Lawrence’s Landscape with Invisible Hand. My thought at the time was that, not only should Schmitt not have limited vote-entitled citizens to “friends” with nearly identical ethnic (etc.) characteristics who agree with each other about pretty much everything, but that there is no good reason to leave out aliens (or porpoises) so long as they have sufficient cognitive abilities. I thought (probably patting myself on the back as I did so) that even persons who disagree in and about almost everything ought to be treated equally: none should be thought better or worse than another and, therefore, all may share voting rights in the same group.

However. Reading Kelsen–and watching Vinx’s four excellent lectures on his book that are available on YouTube–caused me to come to think that I had been mistaken on that point. It’s not so much a moral issue, or that aliens (and porpoises) ought to be instantly counted as “enemies.” It’s not even a consequence of the “persistent minority” problem that suggested to Kelsen that the Hapsburg Empire, with its patchwork of languages and cultures, might not make a very good single democratic polity. It’s that the concept of equal treatment–something required by any authentic democracy–seems to depend on the similarity of average (organic) needs.

It's fine for some folks but not others to prefer pushpin to poetry, or as Everett Hall put it, to have different ideas about the relative merits of reading Bertrand Russell and enjoying a steak dinner; it’s that there may just be no commensurability regarding what various species need to survive–even for a moment. So, for example, if we imagine a quite kindly and intelligent alien (like the one depicted in the picture above) that simply could not continue to live without the daily consumption of 100 human beings, it's neither a moral nor an intellectual disability that's the problem: it's simply that there’s no good way to provide the sort of equal protection and equal treatment that every authentic democracy requires.

Live and learn.

A Shared "Solution" to a Problem Basic to Both Epistemology and Political Theory

 

A couple of hundred years into the Common Era, a skeptical philosopher named Sextus Empiricus wrote this:

Those who claim for themselves to judge the truth are bound to possess a criterion of truth. This criterion, then, either is without a judge's approval or has been approved. But if it is without approval, whence comes it that it is trustworthy? For no matter of dispute is to be trusted without judging. And, if it has been approved, that which approves it, in turn, either has been approved or has not been approved, and so on ad infinitum.

This claim that a "vicious circle" or "wheel" is utterly destructive of human claims to knowledge was popularized in the late 16th Century by another important skeptic, the essayist, Michel de Montaigne. As famously paraphrased by (one of my old grad school professors) Roderick Chisholm in 1973, Montaigne's "Problem of the Criterion," was this: 

To know whether things really are as they seem to be, we must have a procedure for distinguishing appearances that are true from appearances that are false. But to know whether our procedure is a good procedure, we have to know whether it really succeeds in distinguishing appearances that are true from appearances that are false. And we cannot know whether it does really succeed unless we already know which appearances are true and which ones are false. And so we are caught in a circle. 

For example, in order to have faith in anything like Descartes' trust that "clear and distinct"  ideas can be trusted, we must have prior knowledge that the clear and distinct notions are always true. But to know THAT, we'd have to already know some truths. And the skeptical claim is that we can't know any truths without first having some procedure by which to test beliefs. So, in order to get the method, we need to have access to some truths, but in order to get the truths, we first need a trustworthy method.#  

Why bring any of this up in a blog devoted to political theory? Well, it seems to me there is a closely analogous problem for political authority. It too has been around forever, but it was made famous by Carl Schmitt in the 1920s. Here, the question isn't What do we really know? but rather What really has the force of law?  

 

In this arena, we can also find those who, like Descartes, believe that we must get the procedure--or method--right to be comfortable with the authority (rather than the truth) of the edict. So, a proceduralist will be inclined to say that we don't have a legitimate law unless all the correct procedures, starting with the constitution if there is one, have been carefully followed. But the decisionist (like the particularist in epistemology) will be quick to point out that a decision about the authority of the constitution (and/or other "norms" relied on) will then have to be assumed. After all, what makes this constitution so special? If it's claimed that the right procedures were followed when it was enacted, what made those procedures the "right" ones? 

So, Schmitt and other decisionists held that at some point there will be no alternative but to confess that a decision simply had to be made. On this view, ultimately, nothing but decision-makers and their decisions have any real force.## And, among epistemologists, Chisholm--although he maintained that any solution to the problem of the criterion must assume what it seeks to prove--was a "particularist," feeling (as I do) that we just do know certain commonsense things.###

I think we can put the analogy this way: 

• Rejection of Normative Primacy

1. Both Schmitt and Chisholm challenge the idea that a universal, abstract system (be it legal norms or epistemological criteria) can be established in a vacuum. They argue that such a system is, in fact, dependent on prior, foundational acts or beliefs.

• The "What" Precedes the "How"

1. Pursuant to Schmitt's Decisionism, the sovereign's decision on the "state of exception" comes first. This decision is not based on existing law; it creates the legal order. The content of the law (the "how") is a result of the sovereign's ability to act and establish order (the "what"). As Schmitt famously stated, "Sovereign is he who decides on the exception." The decision thus takes precedence over the norm of law.
2. According to Chisholm's Particularism, the epistemologist begins by identifying what we know (the "what") and then uses those instances of knowledge to formulate a general theory of how we know (the "how"). He argues against the "methodist" position, which insists on first defining the criteria for knowledge before claiming to know anything. Chisholm's particularist approach starts with the immediate, undeniable experience of knowing and uses it as the bedrock for all subsequent theorizing.

To this bushel of striking similarities, we probably can add that there are particular "goods" associated with appropriate moves in both epistemic and political realms. Whether each is an intrinsic good or both are only instrumental (likely prudential) values, need not be investigated here. But it does seem clear that it's somehow better both (i) to have beliefs that are true; and (ii) to obey only those ostensible governmental commands that are legitimate.

With all this going for our analogy, one may wonder why it has received so little attention before now. (No doubt it will be assumed by my devoted readers that this must be attributed to the unmatched brilliance of the blogger. But, alas, I don't think that's the reason.) I believe it's because there are also crucial differences between particularism and decisionism as solutions to their respective criterion crises.

First, while only one of the solutions is essentially about individual knowledge, they are both inextricably connected with it...but only particularism gives any assistance on that front. What I mean is this: Even if you have settled on decisionism as the basis for legal legitimacy, you will need to know just whose decision is the one to attend to. Suppose a dozen individuals or groups are claiming to be the appropriate deciders: it doesn't seem like the belief that it's this one rather than that is much like "I am" or "2 + 2 = 4." With particularism, we have our "intuitions" regarding what seems true to guide us, but there may not be any reliable ones in the political realm. In a word, while it makes sense to be comfortable that "These are my hands" is true just because it seems to be, it also seems that we need criteria for settling on the appropriate decider.

Second, some of us may feel there is an additional "good" in play when it comes to political decision-making. (I certainly do.) It involves a recognition of the intrinsic value of self-government. Because of that factor, an autocratic decision--legitimate or not, fostering the overall good of the polity or not--must always lack what authentic democracy can provide. I suppose Cartesians may hold that what can only be provided by God's banishment of deceiving demons or dreams, is equally important. But that is a matter that remains within the same epistemic wheel. The value provided by real democracy seems to me irrespective of whether or not only democracy can give a polity "legitimate authority."

Another way of putting this is that while the decisionist approach may be thought to provide a solution to the problem of legitimacy, it does nothing for any goals involving other sorts of values. (And this is true even if we ignore justice, as I am inclined to do myself). The value of democracy, in my view, is not that it provides a more solid grounding for law, a role that arguably can--perhaps even must if Schmittians are right--be filled by a singular, founding decision, but rather that it provides the additional intrinsic good of self-governance, of most people getting what they want when the wants of each person are treated equally. And that is something that decisionism cannot do.

********

#Obviously, this isn't the place for a detailed discussion of the problem of the criterion. But for those interested in the issue, I recommend a terrific paper by (another old Professor of mine) James Van Cleve called "Foundationalism, Epistemic Principles, and the Cartesian Circle" (1979).

##Schmitt actually backed away a bit from his earlier, strict decisionism in the mid-thirties. In his On the Three Types of Juristic Thought he argued that legal theory depends on "concrete order"; i.e, that something like social practices, institutions,or normal situations must underlie applicable decisions, making them not purely extrinsic to all norms. However, his view remained antithetical to Hans Kelsen's picture, according to which every legitimate edict must ultimately be deriveable from what Kelsen called a Grundnorm or ultimate rule.

###My own views on the purely epistemological matters discussed here can be found in this paper.