93 NWULR 1263
(Cite as: 93 Nw. U. L. Rev. 1263)
Northwestern University Law Review
SPEAKABLE ETHICS, NATURAL LAW
The Structure of Liberty: Justice and the Rule of Law. By Randy E. Barnett.
Clarenoon Press, 1998.
Glenn Harlan Reynolds [FNa1]
Copyright © 1999 Northwestern University School of Law, Northwestern
University Law Review; Glenn Harlan Reynolds
The central problem of the twentieth century has been this: that no matter where political power has been invested, it has been abused in greater or lesser degree by rulers who have been corrupt, power-mad, incompetent, or varying shades of all three. The extent of this abuse has varied according to circumstance, but even in its comparatively mild manifestations--for instance, the internment of American citizens of Japanese descent during World War II as opposed to, say, the depredations of Stalin, Mao, Hitler, and Pol Pot--it has been enough to make a mockery of the principles by which that investment of power has been justified. The result has been a growing worldwide disillusionment with politics and politicians, quite possibly prefiguring a significant postmillenial shift.
It may turn out that the nation-state, at least in its modern form, is on the way out. Certainly its track record should give even its most enthusiastic proponents pause: rather than preventing a Hobbesian war of all against all, modern nation-states have embroiled their citizens in a Hobbesian war of nation against nation. Furthermore, though aimed at policing smaller-scale varieties of oppressive behavior, such as unfair employment relations or family violence, the modern nation-state has by its very size and power facilitated larger-scale oppression, such as concentration camps, genocide, and mass conscription. As Assistant Secretary of State for Human Rights John Shattuck notes, "In the twentieth century the number of people killed by their own governments under authoritarian regimes is four times the number killed in all this century's wars combined." [FN1] While traditional oppression has always been bad enough, only the modern industrial nation-state, with its vast resources of control and coercion, could empower a Stalin or a Hitler. It thus seems time for real discussion of whether the experiment *1264 initiated by Otto von Bismarck and his contemporaries should be pronounced a failure.
Randy Barnett's The Structure of Liberty [FN2] should serve as an excellent springboard to such a discussion. Barnett's approach deserves high marks for both courage and humility. It required courage because, after Arthur Allen Leff's Unspeakable Ethics, Unnatural Law, [FN3] and Memorandum from the Devil, [FN4] it takes no small amount of bravery for a law professor even to mention natural law. And it required humility because Barnett's approach is far more modest than the bloated 1970s legal-philosophical tomes that Leff so brilliantly deflated. In truth, these two characteristics are intertwined: Barnett's piece is immune to Leffian attack precisely because it does not attempt to answer questions that Leff viewed as essential and unanswerable. Leff famously wrote:
I want to believe--and so do you--in a complete, transcendent, and immanent set of propositions about right and wrong, findable rules that authoritatively and unambiguously direct us how to live righteously. I also want to believe--and so do you--in no such thing, but rather that we are wholly free, not only to choose for ourselves what we ought to do, but to decide for ourselves, individually and as a species, what we ought to be. What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good and to create it.
I mention the matter here only because I think that the two contradictory impulses which together form that paradox do not exist only on some high abstract level of arcane angst. In fact, it is my central thesis that much that is mysterious about much that is written about law today is understandable only in the context of this tension between the ideas of found law and made law: a tension particularly evident in the growing, though desperately resisted, awareness that there may be, in fact, nothing to be found--that whenever we set out to find "the law," we are able to locate nothing more attractive, or more final, than ourselves. [FN5]
Leff's criticism was certainly on target. The desire to find substitute gods--generators of indisputable moral truths binding on all humanity--seems to have been widespread among scholars of his generation. Whether in the Rawlsian "original position," [FN6] in some branches of Utilitarianism, [FN7] or *1265 even in the particularly odd version of original intent scholarship championed by Robert Bork, [FN8] to name but a few examples, the scholarly enterprise has seemed rife with axiom-generators who purport to discover the right, good and true. Perhaps this is why Leff's challenge has seemed so intimidating to so many.
Barnett, however, has more modest aims. He explicitly disavows any notion that his "natural law" approach is intended to produce the sorts of answers--or commands--that Leff both requires and deems impossible. Leff maintained that any theory based on the importance of "X" could be answered by the "Grand Sez Who?" of "What's so great about X?" [FN9] Barnett answers as follows:
The idea of natural law is mysterious to us today. We are accustomed to thinking of law as the command of the legislature, or perhaps the command of a government official or judge, which is enforced by a government . . . .
But when we think of the disciplines of engineering or architecture, the idea of a natural law is not so mysterious. For example, engineers reason that, given the amount of force that gravity exerts on a building, if we want a building that will enable persons to live or work inside it, then we need to provide a foundation, walls, and roof of a certain strength. The principles of engineering, though formulated by human beings, are not a product of their will. These principles must come to grips with the nature of human beings and the world in which human beings live, and they operate whether or not they are recognized or enforced by any government. [FN10] Barnett later adds:
This natural law account of moral "principles of society" assumes, of course, that "happiness . . . peace, and prosperity" are appropriate ends . . . .
The normative force of natural law can therefore be seen as the imperative of "if-then." If you want to achieve Y, then you ought not to do Z. If you want to live and be happy, then you ought not jump off tall buildings or drink poison. If you want to facilitate the pursuit of happiness by those living in society with others, then you ought to adhere to certain basic principles. [FN11]
The Leffian response, I suppose, would be, What's so great about happiness, peace, and prosperity? Barnett's reply, in essence, is that the arguments *1266 and criticisms of those who do not value human happiness, peace, and prosperity, though not logically forbidden, are unlikely to prove persuasive to very many. Even Leff, after all, ultimately cries out that napalming babies is bad. [FN12] Barnett distinguishes between the sort of immanent moral theory that Leff calls for, and the more modest set of rules for interaction that he describes. [FN13] In short, Barnett's approach is instrumental, rather than based on moral absolutes. Those not interested in promoting human happiness and prosperity are free to look elsewhere.
Thus Barnett disposes of the "Grand Sez Who?" or, perhaps more accurately, takes up Leff's challenge to develop an ethical system not dependent on an ethical lawgiver outside the system. [FN14] I will discuss the degree of his success below. First, though, I will provide a short and unavoidably simplistic summary of his approach, sufficient to give a sense of the flavor of his analysis.
Barnett recognizes three classes of problems in human interaction: problems of knowledge, problems of interest, and problems of power. Problems of knowledge stem from inequalities of information. No person can know all the things that any other person knows, much less all the things that all other persons know. [FN15] This means that when one person tries to direct the actions of others--even in those others' best interests--the direction will be based on imperfect information and thus pose a substantial risk of going awry. This is what Barnett calls the "first order problem of knowledge"--the problem of configuring this "local knowledge" of others, which by its nature cannot directly be known, into one's actions. [FN16]
This problem of knowledge poses substantial challenges for the most popular theories of governance. One approach, which might be called the "New Soviet Man" approach, might be to ensure that everyone possesses more or less the same preferences and knowledge, minimizing--though perhaps not eliminating--the problem of different knowledge and preferences. Though this approach now seems tragically laughable in light of its history, it certainly seemed compelling to many for much of this century, and continues to exercise some sway. Indeed, as Barnett notes, the impulse to modify preferences and knowledge and force disparate individuals into a *1267 single mold is shared by both right- and left-wing thinkers today. [FN17] They disagree only on which characteristics they would eliminate or reinforce.
In contrast to the New Soviet Man approach is the majority -rule approach, favored by thinkers as different (or similar) as Robert Bork, [FN18] William Jennings Bryan, [FN19] and Akhil Amar. [FN20] Although majority rule has its place, Barnett disagrees with those who argue that "the subjectivity of preferences makes an order imposed by the majority the only alternative to the tyranny of a minority." [FN21] The real problem, notes Barnett, is action: even Robert Bork, after all, seems concerned not that people approve of having sex for pleasure, but that they are actually doing so. Controlling--or perhaps "ordering"--people's actions is certainly less daunting than controlling their thoughts, and Barnett notes two main ways of doing so: centralized and decentralized systems. Centralized ordering is the familiar hierarchical system used in the military and most other large civic institutions: top-down control. Decentralized ordering, on the other hand, delegates decisionmaking authority to lower-level entities, often individuals deciding for themselves. The market is a good example of such a system: no one decides how many cotton balls or aspirin tablets should be made, but pricing signals do the job at least as well as any planner could.
Barnett is careful not to denigrate centralized ordering. The very appeal of such approaches, he notes, is that they work well in many circumstances: the military, for example. On the other hand, the notion that a few *1268 people know better than everyone else--an essential assumption of centralized ordering--does little to solve the problem of knowledge in terms of creating a just society. Wendy's or McDonald's for example--and still less the United States Marine Corps--may have little interest in the unique preferences of those who flip their burgers or aim their rifles. However, such an approach hardly seems suitable to a just society. Certainly, running the nation in the same way that one runs the Marine Corps--or even Wendy's--is unlikely to maximize human happiness, much less prosperity.
Barnett thus favors decentralized ordering as the single most important aspect of a just society. Much of the rest of the book focuses on the important prerequisites for such ordering, such things as the right of private property and freedom of (and from) contract. As Barnett notes, although many think such rights are good in themselves, they are even more important in his conception because they allow the first order problem of knowledge to be solved. By delegating discretion over choices concerning resources, property rights allow individuals and organizations to act on the basis of personal and local knowledge. By allowing freedom of contract, they are empowered to exchange resources they possess for other resources that they want more. And by virtue of freedom from contract, their consent is required for any such transfers--something that not only respects their personhood but also forces the exchange of information about what those resources are worth to others. For instance, the statement "I'll pay you a million dollars" is far more informative than "Give it over or I'll kill you." [FN22]
Barnett also spends a great deal of time working through the implications of his principles. It is here, however, that I must make the standard apology and state that no book review of reasonable length can summarize all, or even many, of the careful and meticulous arguments and responses that Barnett includes. His reflections on criminal justice and restitution, in particular, are so extensive and well-argued that they almost merit a book of their own. Exercising the reviewer's prerogative, I will focus on the parts of the book that I deem most important or, based on my personal and local knowledge, most interesting. These are the problems that Barnett identifies as problems of power and interest.
II. Power and Interest
Though Barnett's description of the problems of knowledge is persuasive, I cannot help but feel that the driving force behind most political liberalization movements has been distrust of power or, more specifically, the belief that those wielding power will not advance any interest other than their own. [FN23] As Hannah Arendt reminds us, "It was not out of a desire for freedom that people eventually demanded their share in government or admission *1269 to the political realm, but out of mistrust in those who held power over their life and goods." [FN24]
Sadly, that mistrust has often been justified, which may account for why it is now so widespread. One small example may suffice: In November 1996 it was announced that former Senator Sam Nunn had received a $1 million grant to discover why Americans no longer trust their government as they once did. [FN25] Nunn might have saved the money, for at least part of the explanation became clear the following week, when Energy Secretary Hazel O'Leary publicly apologized for the government's having conducted experiments in which people in New York, California, Illinois, and Tennessee were secretly injected with radioactive uranium and plutonium without their consent. "It was a rotten thing to do," commented one of the plaintiffs. [FN26] Indeed.
Though the part that this particular episode played in the diminution of the public's trust in the government was rather small compared to, say, the Bay of Pigs, Watergate, or the many deceptions of the Vietnam War, [FN27] it illustrates the point. Something is wrong when government officials--even if they honestly believe that they are acting in the best interests of everyone-- run roughshod over the rights of individuals by taking actions that, had they been carried out in the course of a war, would have resulted in their prosecution as war criminals. Certainly we continue to reap the bitter fruit of such episodes as the Tuskegee Syphilis experiments, episodes that today foster conspiracy theories among African-Americans and others regarding public health schemes in general. [FN28]
Such mistrust may have been earned by the immoral and poorly thought- out actions of government employees. But in another sense, as Barnett demonstrates, it is almost inevitable. Government officials, after all, are merely human. And, as John Locke noted in a passage Barnett quotes, if we need a ruler to keep people's human flaws under control, what are we to do about the human flaws that the ruler possesses? [FN29]
Despite this rather obvious objection, Barnett notes that there remains considerable enthusiasm for what he calls the "Single Power Principle"--that is, the notion that in any jurisdiction there must be a single entity possessing *1270 a monopoly on coercive force. [FN30] His explanation for this enthusiasm is almost Leffian:
The almost irresistible nature of the Single Power Principle may stem not only from explicitly held ideological beliefs, but from a more deep-seated need for security and imposed order. Indeed ideologies of Left and Right may themselves be a product of such needs. For some, the Single Power Principle functions as a kind of religion in which people "believed in" a coercive monopoly of power as an earthly way to prevent bad things from happening and to right every wrong. For these persons, faith in the institutions of power becomes a nontheistic substitute for faith in God in an age where theism is thought by many to be unscientific and irrational, or when God is thought to be insufficiently interventionist in human affairs. [FN31]
If God is interested in us, we have one set of problems. [FN32] If He is not, we have another. But trying to substitute for God creates its own problems: "Whatever the functions it is believed necessary to perform, the Single Power Principle leads to a serious problem of enforcement abuse . . . ." [FN33] And that abuse can be significant. Since government officials are human, they possess human failings. That means that the power we entrust to them so that they may promote the general good may be exercised either wrongly--that is, mistakenly-- or wrongfully--that is, self-interestedly, reflecting what Barnett calls the "problem of interest." [FN34] Worse yet, by entrusting government officials with so much power, we may amplify the human frailties they possess. Adolf Hitler the mediocre painter may have been an unpleasant, even evil fellow, but it was his grip on the reins of power that allowed him to become a full-fledged monster. In short, Barnett says, "bad human beings are more dangerous with power than without it. The Single Power Principle, then, appears to aggravate the very problem it was devised to solve." [FN35]
One obvious move is to say that we won't empower any Hitlers. Barnett rightly discounts this argument. [FN36] The sheer plenitude of lousy rulers worldwide--forget such big-league villains as Hitler or Stalin and look at the far more typical Sani Abacha--suggests that they are hard to keep out of power. But Barnett also points out that if only some people are evil and corrupt then the need for a government to control the evil and corrupt people is that much weaker. And if all people are at least potentially evil or *1271 corrupt, then there is no way to screen out the potential Hitlers. They are, at least potentially, all of us.
Worse yet, even if we can somehow limit positions of authority to good people, we have to worry about bad people taking over. In a system organized around the Single Power Principle we can expect that evil and corrupt people will constantly be trying to outwit or overpower the selection process. If most of them fail, we still lose, because even an occasional Hitler is one too many. And that is just the beginning of our problems, because those who start out good may nonetheless be corrupted by the sheer opportunity for advantage- taking that comes with power.
Beyond these problems comes another: that rulers under the Single Power Principle are given a different status simply by being rulers. The government has the power to do things--take property, use violence, control people's choice of occupation or mate--that ordinary citizens may not. And rulers claim immunities for themselves and their agents--"executive privilege," or "good faith immunity"--that ordinary citizens lack. This is a fundamental source not only of corruption, but of inequality. Why should government officials--whom few in any nation would regard as morally or intellectually superior to the average citizen--possess power to do things that, if done by the average citizen, would be treated as crimes, particularly when their motives for doing so may be corrupt?
These are serious problems and, as Barnett notes, they have not gone unnoticed, though he suggests that they are all too often underappreciated. In fact, these problems have led to various schemes to control the exercise of power, though these schemes are themselves problematic. Voting and elections are complicated by state-sponsored electoral fraud and pork-barrel vote- buying. Federalism and separation of powers can create a mini-Hobbesian political war of all against all, where politicians promise each voter that they will cheat the other guy for his or her benefit. Secession or immigration tend to produce civil wars or Berlin Walls. The result, as our present sewer- like state of campaign finance suggests, is that serious constraint on wielders of the Single Power Principle is likely to be insufficient to protect freedom and equality over the long term.
III. A Polycentric Order
Barnett's response is to repudiate the Single Power Principle in favor of what he calls a "polycentric" order. A polycentric order, as defined by Barnett, is based on voluntariness and competition. Indeed, Barnett's two first principles are what he calls the "nonconfiscation principle" and the "competition principle." According to the *1272 first, "Law-enforcement and adjudicative agencies should not be able to confiscate their income by force, but should have to contract with the persons they serve." [FN37] According to the second, "Law-enforcement and adjudicative agencies should not be able to put their competitors out of business by force." [FN38]
The first of these principles respects freedom from contract: no one may be forced into an arrangement without her consent. As Barnett indicates, this also addresses the problem of interest. "As a practical matter," says Barnett the former prosecutor, "law-enforcement agencies and courts give priority to their own partial interests before the interests of others. Having the power to confiscate their revenue from others deprives law-enforcement and adjudicative agencies of a powerful incentive to be responsive to the requirements of justice and the rule of law." [FN39] Indeed, under modern asset forfeiture laws, such power may even provide a powerful incentive to be unjust. [FN40]
The principle of competition is an application of freedom of contract. It also serves to discipline the players in the market. Monopolists tend to grow fat, dumb, and lazy--and this problem surely isn't helped when their customers cannot choose to do without their services. Nonetheless, Barnett anticipates that the notion of voluntariness and competition in law enforcement is likely to be controversial:
Some think that law enforcement and adjudication are so important that we must make an exception to the background right of freedom of contract and permit a coercive monopoly to provide such services. Yet this argument is odd. If one had to identify a service that is the most central to social well- being, it would be the provision of food. Yet no one today, at least no one in the United States, seriously suggests that this service is "too important" to be left to a decentralized arrangement of private firms subject to the market competition. On the contrary, both theory and history demonstrate that food production is simply too important to be left to a coercive monopoly.
The more vital a good or service is, the more dangerous it is to let it be produced by a coercive monopoly. [FN41] To oversimplify, we would be better off if there were competition among law-enforcement agencies and among judges on the basis of service and effiency, in the same way that there is among, say, supermarkets. Barnett devotes a great deal of space to explaining how market competition would discipline a law enforcement and adjudication system in ways that would enhance both freedom and accountability. [FN42] I will not attempt to summarize *1273 his discussion, not only because most readers can probably imagine the outline of such explanations for themselves but also because my brief summary of Barnett's careful explanations would no doubt work an injustice of its own. Suffice it to say that Barnett's explanations are detailed and thoughtful, and that many will find them convincing or at least plausible and intellectually coherent. [FN43]
The biggest problem that Barnett's approach faces--in the real world rather than the academy--is not dealt with, and that is the possibility that the Single Power Principle exists not so much because people in general want it, but because rulers do. If one accepts that competition and voluntariness serve as an important source of discipline, then one might expect rulers to do precisely what business people do: try to escape competition and obtain a monopoly. Once they have done so, they could of course be expected to justify their monopoly in the usual terms: natural monopoly, a desire to avoid cutthroat competition and chaos, or the need for stability and predictability. But the real purpose would be to avoid precisely the discipline that the market provides.
Barnett does not completely ignore this problem. Indeed, he notes that the Western legal tradition began in pluralism, a situation in which the embryonic nation-state's apparatus was in competition with ecclesiastical courts, town and manorial courts, trade guilds, and even clan or mercantile organizations. [FN44] Barnett ultimately fails, however, to address the question of whether the move from pluralism to the Single Power Principle was brought about by those in power in order to avoid "market discipline."
Similarly, as Brannon Denning persuasively points out, American constitutional history has been marked by a steady consolidation of power in the hands of the federal government--and a steady consolidation of power within the federal government in the hands of the President. [FN45] Indeed, although the Constitution is not particularly friendly to the Single Power Principle, [FN46] even such allegedly "originalist" scholars as Robert Bork endorse *1274 a notion of federal power and, more specifically, executive power that seems far more Bismarckian than Madisonian. [FN47]
Nor is this surprising, in light of the human characteristics that Barnett describes. Even in a polycentric constitutional order marked by voluntariness and competition, corrupt and evil persons will desire to accumulate power. Right now, of course, such people are, by hypothesis, disproportionately attracted to government, because it provides a clearer path to power than, say, making widgets. But that does not mean that a world in which existing government agencies were replaced by competing voluntary nonmonopolistic agencies would be all that different. My local Bi-Lo supermarket is no threat to my liberties. In part, that is because it is disciplined by voluntariness and competition; if it offends me, I can always patronize Kroger's or, should things grow sufficiently desperate, even Food Lion. But if, say, the Bureau of Alcohol, Tobacco and Firearms had to compete the way that Bi-Lo does, there would still be differences. The folks at Bi-Lo do not have guns, and the kinds of people who are attracted to the grocery business are not the kinds of people who are attracted to the power-wielding business. This means that the two domains differ in their fundamental nature even when the operating principles are the same.
To put things another way, scientist Thomas Ray has suggested the following universal law: "All successful systems attract parasites." [FN48] The Single Power Principle might be interpreted as the end-stage of political parasitism. Notwithstanding the comforts of familiarity, Barnett's suggested approach may look more attractive than the reality of contemporary American politics. But is it more resistant to power-grabbers than the current system? That is less clear.
One answer, of course, is that any voluntary law-enforcement agency or adjudicator that becomes power-hungry or dishonest will be restrained and disciplined by its competitors. Barnett makes this argument in a slightly different form, [FN49] and it gibes with the general notion that cartels normally collapse on their own as members inevitably cheat. [FN50] But there is a difference. In "normal" cartels, the members mostly care about making money, and cheating on a cartel arrangement makes money. But where the players are motivated by power rather than by money, it is less clear what form the cheating might take. A member of an "ordinary" cartel can gain business by secretly lowering prices. Can a political leader accumulate *1275 more power by giving followers more freedom? No examples come readily to mind. Because the currency involved is different, it is not clear that a power-cartel would behave the same way as a money-cartel.
But that is pretty much the game. Though I find Barnett's arguments appealing, I can't help but think that competition can work two ways. Under the Single Power Principle, we have one government. Like all monopolists, it tends to be fat, lazy, and inefficient. If one views its function as serving the public, this is bad. But if, as some empirical evidence would tend to suggest, the real function of governments is to serve the political classes at the expense of the taxpayers, then laziness and inefficiency may not be so bad. Contrast this stagnant reality with an "evolutionary" scenario in which countless rival groups vie for power, gradually consolidating until only the fittest remains. The winner might emerge stronger and more ruthless for the struggle. Indeed, Hitler's rise to power amid the factionalized politics of Weimar Germany is not all that far removed from such an example. Nor, for that matter, is the rise of absolute monarchs from the polycentric order of feudalism.
I will admit that this represents a pessimistic view, but I can't help but feel that pessimism is justified in a world where four times as many people are killed by their own governments as die in war. On the other hand, perhaps in such a world we should give new theories like Barnett's a try, on the principle that anything is likely to be an improvement. The history of this century, however, suggests that things can always get worse.
Regardless of my pessimism, The Structure of Liberty is an insightful and meticulously thought-out book that deserves to be widely read and widely discussed. The ideal subject for a book review, at least in my jaded opinion, is a book that revolves around a single, preferably silly idea, and that propounds this idea with a fair amount of pomposity and no sense of self- criticism. By that standard, Barnett's book is not an ideal subject for a book review. Given the many political and social failures that have marked this unhappy century, it behooves us to think long and hard about how we might do better in the next. Barnett has done that, and I expect that The Structure of Liberty will do a great deal to advance political and constitutional thought for years to come.
[FNa1]. Professor of Law, University of Tennessee. Kristen Murphy provided her usual excellent research assistance on this piece. Thanks to Tom Plank, Barbara Stark, and Brannon Denning for their helpful comments.
[FN1]. Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L.J. 995, 1025-26 n.141 (1995) (quoting John Shattuck, Remarks at the Women's National Democratic Club (Sept. 12, 1993)).
[FN2]. Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (1998).
[FN3]. 1979 Duke L.J. 1229.
[FN4]. 29 Stan. L. Rev. 879 (1977) [hereinafter Leff, Memorandum]; see also Arthur Allen Leff, Law and Technology: On Shoring Up a Void, 8 Ottawa L. Rev. 536 (1976) [hereinafter Leff, Law and Technology].
[FN5]. Leff, supra note 3, at 1229.
[FN6]. John Rawls, A Theory of Justice 17 (1971).
[FN7]. See Leff, supra note 3, at 1236 (characterizing Richard Posner, Utilitarianism, Economics, and Legal Theory, 8 J. Legal Stud. 103 (1979)); see also Arthur Allen Leff, Economic Analysis of Law: Some Realism About Nominalism, 60 Va. L. Rev. 451 (1974).
[FN8]. See Robert H. Bork, The Tempting of America: The Political Seduction of the Law, 154-55 (1990). For a discussion of Bork's work in this vein, see Glenn Harlan Reynolds, Sex, Lies and Jurisprudence: Robert Bork, Griswold, and the Philosophy of Original Understanding, 24 Ga. L. Rev. 1045, 1096-1103 (1990).
[FN9]. Leff, supra note 3, at 1230 (quotation marks added for emphasis); see also Leff, Law and Technology, supra note 4, at 544.
[FN10]. Barnett, supra note 2, at 4.
[FN11]. Id. at 7.
[FN12]. See Leff, supra note 3, at 1249.
[FN13]. See Barnett, supra note 2, at 24-26.
[FN14]. "Oh, it's not so awful. If being isn't meaning, and it isn't, meaninglessness isn't nonbeing, either. You and the species get to live. It's just that you have to shape your living, and its meaning, all alone." Leff, Memorandum, supra note 4, at 888.
[FN15]. Such knowledge, of course, includes not only knowledge of facts, but also of preferences, needs, opportunities, and experience. See Barnett, supra note 2, at 31.
[FN16]. Id. at 35-36.
[FN17]. To be fair, sometimes the goal is not to make everyone alike but simply to produce the sort of preference falsification that makes attempts to overthrow the regime in power less likely. If each citizen thinks he or she is the only one on whom the "New Soviet Man" approach has unaccountably failed to have any effect, then he or she is likely to keep his or her mouth shut. See generally Timur Kuran, Private Truths, Public Lies: The Social Consequences of Preference Falsification (1995).
[FN18]. See Bork, supra note 8:
Suppose that the lawyer for Connecticut in Griswold argued that a majority, or even an intense and politically influential minority, regarded it as morally abhorrent that couples capable of procreation should copulate without the intention, or at least the possibility, of conception. Could the Court demonstrate that this moral view is wrong or that moral abhorrence is not an important and legitimate ground for legislation?
Id. at 227.
The law prohibiting the use of contraceptives impairs their sexual gratifications. The state can assert, and at one point in the litigation did assert, that the majority of Connecticut's citizens believes that that use of contraceptives is profoundly immoral. Knowledge that it is taking place and that the state makes no attempt to inhibit it causes those in the majority moral anguish and so impairs their gratifications.
Id. at 257-58.
[FN19]. See Edward J. Larson, Summer for the Gods: The Scopes Trial and America's Continuing Debate over Science and Religion 44-46 (1997) (quoting Bryan as saying that "no concession can be made to the minority in this country without a surrender of the fundamental principle of popular rule," and quoting Edgar Lee Masters as saying that for Bryan, "the desideratum was not liberty but popular rule").
[FN20]. See Akhil Reed Amar & Alan Hirsch, For the People: What the Constitution Really Says About Your Rights 3-33 (1998) (advocating constitutional amendment by a simple majority).
[FN21]. Barnett, supra note 2, at 42.
[FN22]. For Barnett's slightly less colorful description, see id. at 66- 67.
[FN23]. I do not mean to suggest that Barnett disagrees with this point.
[FN24]. Hannah Arendt, Between Past and Future: Eight Exercises in Political Thought 150 (Penguin Books 1993) (1961).
[FN25]. See Ken Foskett, Mending America's Social Fabric: An Urgency, Atlanta J. & Const., Nov. 14, 1996, at A16.
[FN26]. Shannon Tangonan, U.S. Pays Victims of Radiation Experiments, USA Today, Nov. 20, 1996, at 3A.
[FN27]. For a summary of these and other deceptions and their role in undermining public trust, see Peter W. Morgan & Glenn H. Reynolds, The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society 47-72 (1997).
[FN28]. See James H. Jones, Bad Blood: The Tuskegee Syphilis Experiment (1993).
[FN29]. See Barnett, supra note 2, at 242-43.
[FN30]. Id. at 240.
[FN31]. Id. at 243.
[FN32]. Just ask Job, or Lot's wife.
[FN33]. Barnett, supra note 2, at 243.
[FN34]. Id. at 135-49.
[FN35]. Id. at 245.
[FN36]. See id. at 244-47.
[FN37]. Id. at 258.
[FN39]. Id. at 260.
[FN40]. For celebrated descriptions of these problems, see Leonard W. Levy, A License To Steal: The Forfeiture Of Property (1995); James Bovard, Lost Rights: The Destruction of American Liberty 9-48 (1994) (describing problems with forfeiture law and incentives that such law provides for unjust law enforcement).
[FN41]. Barnett, supra note 2, at 271.
[FN42]. See id. at 271-74.
[FN43]. Most persuasively, Barnett argues that a polycentric order has the advantage of "compartmentalizing" the harm done by any single bad actor, while a Single Power System allows such a person to harm all within his or her reach. Id. at 307.
[FN44]. See id. at 272 n.3 (citing Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983)). Berman's term, "the competition of concurrent jurisdictions," aptly describes the dynamic that Barnett seeks to recreate. Berman, supra note 2, at 55.
[FN45]. See Brannon P. Denning, Constitutional Decadence (unpublished manuscript).
[FN46]. Indeed, one may understand the American constitutional system itself as a refutation of the Single Power Principle, though this is less appreciated than it used to be. As Sanford Levinson points out, Max Weber's notion of the State as the holder of a monopoly on the legitimate use of force is a European idea, not reflected in the Constitution or framing-era political thought. Rather, "it is a profoundly statist definition, the product of a specifically German tradition of the (strong) state rather than of a strikingly different American political tradition that is fundamentally mistrustful of state power and vigilant about maintaining ultimate power, including the power of arms, in the populace." Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637, 650 (1989).
[FN47]. See generally Bork, supra note 8.
[FN48]. See Kevin Kelly, Out of Control: The Rise of Neo-Biological Civilization 287 (1994). For more on political parasitism and its constitutional implications, see Glenn Harlan Reynolds, Is Democracy Like Sex?, 48 Vand. L. Rev. 1635 (1995); Glenn Harlan Reynolds, Chaos and the Court, 91 Colum. L. Rev. 110 (1991).
[FN49]. See Barnett, supra note 2, at 294-97. Barnett's example, however, involves a single rogue entity, not collusion among several such entities-- which, for reasons I suggest above, might well be more likely.
[FN50]. As an example of this phenomenon, consider OPEC.
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