Having considered the modern nation-state as a unique subject of historical and political inquiry, we turn to the widely popular notion that we are right now living amidst a “Long Peace,” characterized by falling rates of war and violence more generally. Among the intellectuals notably associated with this thesis is the Harvard cognitive psychologist Steven Pinker, who argues that wars between the world’s great powers have steadily declined, and that even the nightmarish violence and genocide of the last century was, population sizes properly weighed, a move in the right direction. We have described the emergence of the modern state as a process “of centralization, concentration, and absorption,” in which other sources of power in society were consolidated, the state eliminating rivals. This process, a violent one, is among the historical facts generally ignored or downplayed by the Long Peace thesis. As Reinhart Kössler notes, “the pacified environment provided by the modern state (at least, according to its own pretensions), rests on a history not only of violent disarmament of competitors and elimination contests, but also of the equally violent process of disciplining people.” Or as Peter Kropotkin observes of England under Henry VIII, the state forcibly expropriated and supplanted the network of voluntary associations and guilds that had grown up over the course of centuries, robbing them in broad daylight “without bothering with formalities or procedure.” Such episodes, largely forgotten in any case, are not deemed violence or coercion by the contemporary defender of the modern state, who tells us that it ushered in a new age of peace. The acknowledgment or retelling of such crimes doesn’t fit a narrative that sees the birth of the Westphalian nation-state as a propitious event for human liberty and prosperity. To understand the problems with the Long Peace argument thus requires a close reassessment of the bureaucratic state: though today regarded as the benign vehicle of qualified, scientific expertise, this new form of total government creates the preconditions for the worst, most thoughtless exterminations of human beings in the world’s history.
The principle of bureaucracy, Kropotkin says, “destroys everything,” because through it is enforced a suffocating pattern of uniformization, the determined elimination of foci of social power outside of the state and the active preclusion of their reemergence—as well as the erasure of the popular memory of these cooperative alternatives to state power. This accession of unrivaled, anomymous power (and the anonymity of the bureaucratic state is important in this discussion) brings along with it a system of incentives creating a fertile ground for the germination and growth of the mass-murder state. Mary McCarthy has a famous quote on bureaucracy: “Bureaucracy, the rule of no one, has become the modern form of despotism.” The modern nation-state’s characteristic bureaucratic form seems to have made possible the mechanized mass slaughters it has carried out since its appearance. For if no one rules, then no one really kills—that is to say, no one must take responsibility for killing, the murder of millions becoming an exercise in bureaucratic anonymity and detachment, everyone mechanistically following orders, no one choosing.
Political modernity, incarnated in the nation-state, seems, then, to admit the fundamental libertarian truth that no one could attain the right to rule. But instead of treating this as a good reason to subject the state to a searching analysis, it accepts social contract theory’s counterfactual and concludes that we are the authors of our own oppression. As the great liberal Benjamin Constant wrote, the social contract theory articulated by Rousseau is “the most terrible auxiliary of all kinds of despotism,” for it operates to remove all constraints on political power. There can, after all, be no limits on political power in principle if that power only an expression of the citizen’s own will.1
And indeed the twentieth century was an experiment in limitless political power. The internal logic of the modern nation-state reaches its conclusion in authoritarian political systems like Italian Fascism, German National Socialism, and Chinese and Soviet communism. As I’ve discussed previously, defenders of the modern state have attempted, against the weight of available evidence, to read such brutal, murderous regimes out of the modernist project, to distinguish them as deviations from or deliberate reactions against the dominant trend. Detlev Peukert argued compellingly that in fact German National Socialism “pushed the utopian belief in all-embracing ‘scientific’ final solutions of social problems to the ultimate logical extreme,” stamping out genuine social ties in favor of a bleak coherence derived from “bureaucratic procedures.” An examination of the familial connection between Progressivism and National Socialism reveals that the “logic of segregation and exclusion” was always there, latent in the very Progressive ideas that had been the foundation of the Weimar welfare state.2 Making matters even more ridiculous, the horrors of the twentieth century transpired during a period in which the nation-state was supposedly in decline, in which the growth of international organizations (both business corporations and treaty organizations like the League of Nations and, later, the United Nations) grew in power. Premised on the idea that there is a rationally discoverable natural law preceding positive law, international law does, at least in principle, posit a challenge to the sovereignty and authority of the state. But as historian Quentin Skinner has observed, reports of the death of the state have been greatly exaggerated, as states have arguably become “more aggressive of late, patrolling their borders with increasing attention and maintaining an unparalleled level of surveillance over their own citizens.” Skinner further notes that states intervene decisively in the economy (to rescue failing banks, for example), print money, tax and imprison their citizens, and “legislate with an unparalleled degree of complexity.”3
The Devastation of Modern War
Still, notwithstanding the unique power of the modern state and the bloody history of the twentieth century, is it possible that Pinker and others trumpeting the “Long Peace” are right? Will Wilkinson of the Niskanen Center recently assured me that “advent of the Westphalian nation state brings in its wake plummeting death rates from war.” This seems, however, to be far from the truth—indeed, the empirical record shows us that just the opposite is true. In the roughly four centuries since the Westphalian treaties were signed, the world has played host to a series of bloodbaths that would have been inconceivable before the modern era and its unique political institution, the state (on which more below). But during the relevant period, the number of human beings on the planet skyrocketed, from little more than half a billion in 1648 to nearly 8 billion today. The Long Peace theorists argue that “even if wars have become deadlier in absolute terms,” those deaths account for a smaller percentage of the population.
This seems a strange way to think about the destructiveness of war, for we don’t ordinarily believe that the value of one person’s life is reduced by the mere fact that there are more people currently alive on earth. The inexpressible value of any given individual has not been diminished as the global population continues to climb. Human persons are not fungible cogs that can be readily substituted for one another, void of unique characteristics. This kind of statistical analysis reduces the human person to a commodity, a mere chattel. It is, at this juncture, important to point out that this relative vs. absolute debate is a philosophical one, a question that by definition cannot be decided on the basis of the raw data alone (even assuming that the data themselves were perfectly validated and not subject to any meaningful disagreement). The philosophical question precedes, and must precede, the data-analytical question, as any interpretation of the data will assume certain philosophical priors. While proponents of the Long Peace thesis see it as obviously true that we should use the relative standard, this is not at all obvious, and there are compelling reasons that favor the absolute standard when we’re talking about something like the lives of individual human beings. We can’t mitigate the loss of one life with the substitution of another, i.e., by gesturing at the existence of additional other persons. The loss is fundamentally immitigable, because each individual is irreducibly unique. If your empirical approach is telling you, roughly immediately following the bloodiest century ever, that there’s been a “Long Peace,” then that approach is broken at a fundamental level. That this is not immediately obvious reveals much about the normative philosophy that today’s intellectuals use to frame their definition of empirical rigor. Mao’s communist government alone was responsible for approximately 70 million peacetime deaths. Pinker, and his defenders like Wilkinson, apparently mean us to believe that such a staggering, almost unimaginable, death toll is reconcilable with a general downward trend in violence because, well, China has lots of people.5
Setting the matter aside, war-related deaths actually increased in absolute terms more than they should have given population growth alone, with exponentially more such deaths in “modern organized societies” than in primitive nomadic societies. Further still, as we shall see, the twentieth century saw a uniquely high death toll, even if we (1) employ the relative/per capita standard preferred, I think implausibly, by the supporters of the Long Peace thesis, and (2) include only deaths in conflicts (see Max Roser’s graph “Global deaths in conflict since 1400”). To reckon that the world has grown more peaceful in the centuries after the Peace of Westphalia, we must define “peace” in a way that can accommodate the liquidation of millions in what is in fact an extremely short period.
Indeed, some estimates of World War II casualties are as high as 120 million, with World War I as high as 65 million. Political scientist Rudolph Rummel, who coined the term “democide,” observes that even looking solely at the number of conflict-related deaths as a share of global population (as opposed to the absolute standard of total conflict-related deaths), the twentieth century comes out on top as compared with the four centuries immediately preceding it; he notes, too, that the conflict-related values do not “take into account the massive democides accounting for about 170 million deaths,” which largely occurred in “peacetime”—for example, the mass murders perpetrated by the Soviets and the Chinese Communists. Rummel later remarked that “this total could even reach near 341,000,000 killed.” Democidal governments have “murdered 6 times more people than died in combat in all the foreign and internal wars of the [twentieth] century.”
There are still other problems: Steven Beard argues that even if we forecast using the data from the more peaceful period following World War II, it is still not at all clear “that that this recent peaceful period represents a long-term decline in interstate war.” Beard goes on to explain that the changes we observe in the data “appear to be either temporary or random variation around a flat base probability.” The idea that we’re living in a uniquely peaceful time is simply not grounded in what we know. We should expect the waxing and waning of war deaths, and thus we don’t yet have sufficient reason to believe the current apparently-peaceful moment is sui generis. Ohio State political scientist Bear Braumoeller agrees that Pinker’s identification of a trend is premature, noting that his research found no “downward trend in the incidence or deadliness of warfare. If anything, the opposite is true.” Braumoeller says that the “escalatory propensity of war is the scariest thing [he] found” in his research, finding a fairly good chance that the world could, within the relatively near term, see a war that kills 70 million. He further points out that war follows what is called a power-law distribution, meaning that while there may be many small wars, random chance can turn one into a catastrophically deadly event—an event “unbelievably huge even by the standards of other unbelievably huge things” (emphasis added). Braumoeller’s work suggests that it would be “frighteningly easy” for humankind to walk a path that is even more violent than ever.
What, then, explains this absurd claim that the Westphalian state has ushered in a new era of peace? Simple myopia provides perhaps the best explanation: that very recent history has been particularly peaceful seems to have left some neoliberal optimists with the misimpression that this as yet short-lived peace represents a sea change. It has simply become too easy for people today—particularly those living in the rich West—to forget both the history of the modern state’s emergence and the horrors it has left in its wake. Exemplifying this myopic, overly sanguine view, Steven Pinker cites a falling rate of deaths in war over the last 25 years in support of his claim that there’s been a “long-term historical trend” of declining violence. Pinker and other such committed Pollyannas have either forgotten the horrors of the last century or are completely immune to evidence. As anthropologist Dean Falk remarked in 2017, even the decades that have passed since the end of World War II represent “a proverbial drop in the bucket compared with the five [million] to seven million years humans and our ancestors have been around.” It is furthermore important to point out that the character of war has changed in the years since World War II, with wars between the great powers being replaced by proxy wars and civil conflicts, the frequency of which have increased.
It must be granted that the Long Peace argument is certainly not without appeal, as another attempt to claim that we have arrived at the end of history. Alas, this is just too easy a story. The modern state was born of and designed for warfare, and it has delivered on the promise of its roots. As Charles Tilly notes, “Preparation for war has been the great state-building activity,” this process continuing largely without interruption for the last 500 years. Christopher W. Morris writes similarly, “The nature and scale of modern wars are made possible by the modern state, and what the future threatens may be worse than what we have already experienced.” Let us hope that Morris is wrong and that a Long Peace does in fact await us. I’m afraid I do not share Pinker’s optimism.
We reject the idea that some people are born superior to others, with a right to rule them. What, then, if anything, justifies a state’s power over its citizens?
In any American election, the vast majority of people don’t vote. Even among the portion of the American population that is eligible to vote, less than three-fifths turned out for the 2012 presidential contest, with over 90 million eligible voters staying at home on that November day. For those who do vote, the risible scene of the American electoral circus presents them with a choice between two wings of a fundamentally unified political establishment — an apparently indomitable welfare-warfare machine devoted to enriching corporate cronies and stifling the needful spontaneity of genuine freedom. Worse still, in national elections, no individual vote could really matter, and even assuming a single vote were somehow able to impact an election result, our collective electoral decisions extend only to an infinitesimal tip of the iceberg. As Jeffrey Tucker observed last November, “we elect about 0.02 percent of the overall number of people who rule us.” As we bring this picture into focus, we may begin to doubt the authenticity of the claim that ours is a “government of the people, by the people, for the people.” We may even start to see the actions of the government as essentially usurpatory, as robbing individuals of their right to self-determination.
After all, the state’s advocates frequently cite our right to vote as proof of (or at least evidence supporting) the proposition that we as a whole society collectively consent to being governed. For Rousseau, through the idea of the “general will,” each and every “citizen gives his consent to all the laws, including those which are passed in spite of his opposition.” According to Rousseau’s theory, his idea of the social contract, voting is an essential part of the process through which we arrive at this general will, the will of each separate individual being both a part of it and subordinate to it. But if casting a vote is as meaningless a gesture as some of the facts above seem to suggest, then we might have reason to question a social contract theory that relies so heavily on suffrage. Moreover, suppose we accept the argument that voting legitimates the state; we might nevertheless see this, as many libertarian theorists have, as among the best reasons not to vote. As George H. Smith argues, “Libertarians should oppose the vote in principle — they should oppose the mechanism by which political sanctification occurs.” If voting so much as tends to redeem the inherently unjust, coercive state, then arguably sane, peaceful citizens should take all reasonable steps to avoid the voting booth. In condemnatory language similar to Smith’s, the great libertarian polemicist Benjamin Tucker wrote that “[e]very man who casts a ballot necessarily uses it in offense against American liberty, it being the chief instrument of American slavery.” Read the rest at libertarianism.org.
Often claimed by modern socialist anarchists, Benjamin Tucker fits better in the libertarian tradition.
There existed, for a time, an alignment between labor reform and socialism on the one hand and individualism and free-market libertarianism on the other. Benjamin Tucker famously called socialists and anarchists “armies that overlap.” Today, however, the idea that anti-statism and socialism are somehow related is likely to strike most readers as deeply confused, for government ownership and management seem to be at the heart of socialism. We have examined Tucker’s voluntary or libertarian socialism, which explains this idea of “armies that overlap”; the unique case of Tucker is also of interest in our consideration of the relationship between anarchism and libertarianism as historical phenomena and movements. The question naturally arises: were Tucker alive today, would we find him at libertarian conferences or anarchist book fairs?1 While we will never know for sure, Tucker’s words offer clues, many of them quite clear, given his deliberate style of communication. As we shall see, once we properly account for the nuances of Tucker’s individualist anarchism, many of the putative distinctions between it and contemporary “capitalist” libertarianism—the distinctions that render it intolerable to today’s social anarchists—either break down completely or else don’t seem capable of bearing the weight anarchists would place upon them.
Contemporary social anarchists have been willing to claim Tucker as one of their own insofar as he was “squarely in the libertarian socialist tradition,” opposed to both the state and capitalism. The authors of the Anarchist FAQ commendably took the time to understand Tucker’s thought and his view of markets: “Once capitalism was abolished, the market would be able to reach its full promise and become a means of enriching all rather than the few.” The Anarchist FAQ states, “the fundamental socialist objection to capitalism is not that it involves markets or ‘private property’ but that it results in exploitation. Most socialists oppose private property and markets because they result in exploitation and have other negative consequences rather than an opposition to them as such.” This matter-of-fact claim—that private property and free markets result in exploitation—is extremely tendentious (especially insofar as we’ve never had anything like the system of private property and free markets that either the individualist anarchists or today’s libertarians espouse); as it happens, so is Tucker’s inverse claim that free competition would necessarily destroy the supposedly exploitative economic phenomena of which he disapproved. All parties seem to be overselling their predictions about the kind of world and social relationships a free market system would produce, the predictions always seeming to align with the predictor’s normative goals and preferences.
Robert Anton Wilson was born Robert Edward Wilson on January 18, 1932, in Brooklyn. That distinctive middle name, Anton, was the first name of his maternal grandfather, who left Trieste — today Italy, then the Austrian Empire — to escape military conscription, which Wilson considered a courageous and heroic act. When he took Anton as his middle name, Wilson believed he would return to his given name when he had one day amassed the prestige necessary to write serious literature. Thank goodness Wilson never became quite so serious.1 In the Brooklyn of his youth, Wilson was raised in a kind of poverty and want few Americans alive today would recognize. To make matters worse, when he was only two years old Wilson was diagnosed with polio, which his doctors said would leave him unable to walk. If we believe his account, the Sister Kenny method saved young Robert, even as the establishment medical community and its licensing cartels damned the controversial treatment. This early experience with the controversial and unorthodox left Wilson with little use for conventional wisdom of any kind, little trust in the expertise of the properly credentialed.
Wilson sought others interested in far-out and dissentient ideas, and he found them. His ventures off the beaten path led him to one Ralph Borsodi, a self-sufficiency guru and homesteader who abandoned an urban life of corporate work, congestion, and filth for a different and, in his view, better way. Already inclined toward anarchism and the politically unconventional more generally, Borsodi’s School of Living was the conduit through which Wilson encountered the ideas of Benjamin Tucker and others in the individualist tradition. Those ideas, in turn, had come to the School via its association with second-generation anarchist Laurance Labadie, with whom Wilson would share countless conversations on anarchist theory. It was a fortuitous turn that the School of Living’s newsletters and periodicals should have reached Labadie in Detroit, half than a century or more before the presence of the internet made connecting with like-minded individuals relatively effortless and instantaneous. As Borsodi’s closest associate at the School, Mildred Loomis, observed, despite Borsodi’s curiosity as an “inveterate seeker,” he “had somehow missed America’s individualist anarchists until he met Laurance Labadie at Lane’s End in the early 1950s.” If, as Jeff Riggenbach reflects, understanding Wilson’s thought requires understanding Borsodi’s, then certainly both owe a great deal to the Keeper of the Flame, Labadie. Much as Tucker had pressed readers of Liberty, Labadie pushed Borsodi and Wilson to follow their anti-authoritarian instincts to their logical endpoint.
Wilson assumed the editorship of the School’s magazine, Balanced Living, rechristening it as the more libertarian-sounding A Way Out in an effort, he said, to “attract a younger, hipper readership.” Wilson also persuaded Norman Mailer to contribute several poems, which he hoped would draw the attention of “the intellectual world.” Other notable contributors at the time included Paul Goodman, Murray Rothbard, Sidney E. Parker, Frank Chodorov, and Robert LeFevre. Together with other movement eccentrics like Labadie, Wilson was a living bridge between an older, left-flavored individualist anarchist current and the present-day libertarian movement. As Brian Doherty observes in his definitive history of the movement, Wilson “was one of the last of the pure Benjamin Tuckerites,” though Wilson would undoubtedly have bristled at being labeled a pure anything.
Wilson’s worldview affirmed life and repudiated anything he saw as an unhealthy obsession with death and “the deathist philosophy.” But Wilson was never moralistic or ideologically committed. Max Stirner’s consciously amoral egoism, filtered through Benjamin Tucker, apparently left its mark on Wilson, who rather defiantly insisted that he would do anything, murder included, to avoid leaving his children in poverty and added, “I regard morality and ideology as the chief cause of human misery.” Stirner’s language, in particular his burning desire to shatter all “fixed ideas,” became a conspicuous part of much of Wilson’s work, both fiction and nonfiction. Wilson described himself as “mildly puzzled all the time,” his natural curiosity preventing him from settling on any absolute truth, motivating him constantly to revise and update. Thus did he maintain a position of “neurological relativism.” He derided True Believers of all kinds, holding that the “reality maps” to which they clung so inflexibly were all equally wrong—or, at the very least, equally limiting. Wilson therefore counseled and practiced what he termed “a state of generalized agnosticism,” that is, “agnosticism about everything.”
Captivated in the early ’60s by the communist anarchism of Peter Kropotkin—as elucidated in the Russian aristocrat’s famous Encyclopedia Britannica article on the subject—Wilson had since (owing in no small part to Labadie’s influence) revised his anarchism in a decidedly more individualistic direction. Yet salient features of Kropotkin’s thought remained with Wilson. Kropotkin’s article stresses, for example, that even an anarchist “society would represent nothing immutable,” that instead anarchism contemplates a social harmony resulting “from an ever-changing adjustment and readjustment of equilibrium between the multitudes of forces and influences.” In all of Wilson’s work we find the rejection of the rigid and immutable in favor of a spirit of skepticism and free inquiry.
Civil rights do not fare well in wartime, tested against the feverish jingoism of the martial spirit. As the old adage goes, inter armas silent leges — in war the law is silent. In the United States, liberty has too often been sacrificed (without hesitation, we might add) to the gods of wars, forced to prostrate herself before them, accede to their demands. But never completely is liberty’s light extinguished; undaunted and filled with righteous indignation — and, perhaps, naivety — a few idealists always stand as her partisans, prepared to sacrifice their own liberty in their own kind of war.
Eugene Debs, whatever his faults, was one of this kind, a true believer. He was born in 1855 in Terre Haute, Indiana, a town west of Indianapolis and near the Illinois border, the son of immigrants from the French region of Alsace. Far from steeping the young Gene Debs in left-wing radicalism, his parents owned a small grocery store and led a quiet life devoted to their many children. But Debs was curious, compelled toward literature, debate, and the world of ideas. From humble beginnings, he would go on to become, in the words of Max Eastman, “the spiritual chief and hero of American Socialism,” but he is important to the libertarian tradition, too, as a symbol of free speech. His trial in 1919 represents a travesty of justice, an egregious affront to the individual’s inviolable right to speak his mind. It also speaks to the fragility of mere words on a page, confronted with the power of a growing modern state in the hands of Progressives. Woodrow Wilson’s administration embraced centralized government power enthusiastically, seeing in it an expression of the true social organism.
Passed the year that the United States entered the fray in the Great War, the Espionage Act of 1917 was one of several successive attacks on liberty and the constitutional order during Wilson’s presidential tenure. Lest the title of the law cause confusion, it addressed itself both in theory and practice to a range of activities that few would readily associate with spying. Together with the Sedition Act, an addendum passed the following year, it gave the federal government broad discretion to prosecute virtually any speech critical of the government or the war. Under the statute’s vague, overbroad language, even the faintest criticism of U.S. participation in the war could be considered an attempt to aid the country’s enemies or otherwise hinder the war effort.
It was to this draconian law that Debs, outspoken in his anti-war convictions, eventually fell victim. Intellectually and morally abased by the hysteria of war, the American political and media establishment could conceive of no way one could be so unreservedly critical of the war without also being “an agent of a foreign power.” Distrust of foreigners in general reached new heights. The war rendered the nation amenable to the most extreme public-policy expressions of nativism and anti-immigration sentiments, already, in the words of Thomas C. Leonard, “a chronic, debilitating illness” in American public life. German-Americans, widely treated as a presumptively suspect other, were now the subjects of sweeping registration requirements, with thousands interned at camps across the country.
The biologist Stephen Jay Gould wrote that “[c]ategories often exert a tyranny over our perceptions and judgments,” adding that “[w]e do not ponder the bases of our classifications with sufficient scrutiny.”
Popular political debates have yet to fully appreciate this vital insight. Our political categorizations facilely conflate questions of fundamentally different kinds, leading to a conceptual confusion that hobbles constructive discourse. Clarity in this discourse requires a separation between two kinds of questions, those about means and those about ends.
Debates about the goals themselves are values questions, premised on our normative judgments, that is, our views on what ought to be—what makes a good society or political system.
These questions and our answers to them are importantly quite different from our arguments about the practical question of how to arrive at those goals once we’ve settled on them. And at a sufficiently general level of abstraction, there is actually a rather broad consensus as to ends, the goals at which public policy should aim.
In the United States, a citizen may sue the government. It is fortunate that it should be so, because, as libertarians like to point out, government is society’s single worst offender. The ability to hold it to account in the courts helps safeguard the rights of the individual, the consistent protection of which is the meaning of a free society. Robust judicial review of government actions is an expression of the idea that no one should be above the law, that ours is a country of laws not men, a principle enshrined in the Declaration of Independence and in the Constitution’s three-branch structure.
If justice is in fact blind, as we’re taught, then she cannot see that a defendant in court is an agent of the state, blazoned with its symbols of power. In practice, though, the eyes of justice are not only open to those symbols but impressed by them, content to acquiesce in government malfeasance. The War on Terror has aggravated the problem of judicial capitulation to an assumptive and autocratic executive branch. Since the events of September 11, the federal courts have been still more susceptible to executive-branch legal arguments and interpretations, giving the government a free hand to violate individual rights.
In its prosecution of the baneful War on Terror, the government has leaned heavily on the state secrets privilege, articulated in the Supreme Court’s opinion in United States v. Reynolds; this case has thus become one of the key legal instruments of injustice in the twenty-first century.
The Reynolds story begins at an Air Force facility in southeastern Georgia. In the early 1950s, the Air Force was testing new equipment on a Boeing B-29 bomber when the plane’s engine caught on fire, resulting in a crash that killed six of the nine crewmembers on board. The widows of three civilian contractors who died in the crash brought a lawsuit against the federal government and requested that it produce official Air Force accident reports.
The government’s first attempt to justify withholding the documents, based on an appeal to Air Force regulations, failed to persuade the trial court. As the Constitution Project’s Louis Fisher observes, the authority relied on was a 1789 “housekeeping” statute that merely instructed federal agencies to maintain official records; it neither “authorize[d] the withholding of documents from plaintiffs or the courts,” nor empowered the government to unilaterally determine which of its own records were privileged. The court held that the plaintiffs had demonstrated “good cause for production,” ordering the government to produce the subject reports. It was the government’s response, its subsequent refusal to produce, and the arguments attached thereto, that were the source of the Reynolds case’s notoriety.
Refusing to hand over the records, the government argued that they were the subject of a special evidentiary privilege, just as, for example, communications between an attorney and his client. Eventually reaching the Supreme Court and decided in 1953, the case marks a sweeping reformulation of the now-infamous state secrets privilege, so frequently invoked since September 11 to frustrate accountability and undermine the rule of law.
For years a consistent refrain in American politics has bewailed an increasingly polarized political atmosphere.
As the Pew Research Center observes, for the first time in almost 25 years, “majorities in both parties express not just unfavorable but veryunfavorable views of the other party.” Americans, the Pew study shows, now look across the aisle with fear, anger, and contempt, committed more strongly than ever to their respective teams. On college campuses, disagreements that might have been thoughtful, even friendly debates have erupted into violent melees, ending in injury and damaged property. Attacks and intimidation, it seems, have become a part of American political life.
But the conspicuousness of America’s political polarization belies a counterintuitive insight: the belligerents of the nation’s social and political war are actually very much alike. Culturally and aesthetically, the groups appear quite different, yet their political philosophies share a common heritage, rooted in the anti-Enlightenment ideas of the first half of the twentieth century.
Gripped by reductionist groupthink, a toxin generated by the United States’ acrid culture-war politics, left and right are moving — regressing, in fact — toward their most crudely authoritarian incarnations. Their declension recalls the totalitarian communist and fascist ideologies of the early twentieth century.
Every American learns in grade school of the three-part structure of the U.S. government: the legislative, executive, and judicial branches. In The Federalist Papers, No. 47, James Madison, called by many the “father of the Constitution,” remarked the accumulation of these powers in the hands of one party “may justly be pronounced the very definition of tyranny.”
The Constitution — at least, in theory — forbids any one of the three branches from delegating its powers or duties to another branch. But the Constitution has effectively been amended, albeit quite outside of the prescribed process. Today, a fourth branch of government, nowhere authorized in the Constitution, has, as legal scholar Philip Hamburger observes, “transformed American government and society” and “become the government’s primary mode of controlling Americans.”
How did such an abysmal change to the constitutional edifice come to pass so quietly? The story begins more than a century ago, when new assumptions about the role and configuration of government gradually superseded the classical liberal ideas of the founding generation. A look at the political thought of Woodrow Wilson provides a useful illustration of this new way of thinking about the state, now known as progressivism. Wilson believed the “science of administration,” which he saw as still in its nonage, must be adapted to accommodate widening “new conceptions of state duty.” To Wilson, “the weightier debates of constitutional principle” were passé, increasingly irrelevant to the more-pressing questions of running a large and complex government apparatus. The idea of limited government itself belonged to a simpler time.
Wilson’s answer to the admittedly “poisonous atmosphere” of corruption and confusion in government at all levels was an appeal to the “impartial scientific method.” Here, he was a product of his time. Successive breakthroughs in the natural sciences had convinced Wilson’s generation virtually everything, government included, could be understood and restructured in terms of fixed scientific laws; government and human nature were believed to be perfectible through science.
Wilson and the progressives accordingly believed bureaucrats were, through an august commitment to the common good, lifted above ordinary greed and self-interest. The federal bureaucracy would be their temple, a thing apart from partisan melees and their raucous debates. It was to be the cloistered, rarified world of trained subject-matter experts, objective and scientific, unmoved by selfish interests and unsoiled by politics. In principle, the modern administrative state, this new fourth branch of government, represents a forthright repudiation of the liberal Enlightenment principles upon which the constitutional order was premised. And the administrative state’s early exponents readily acknowledged as much. Government, they argued, should not be limited; it should be empowered, maximizing resources and latitude for credentialed experts. Progressivism, once it had subdued the liberalism of old, quietly adopted its name, leading to a lexicographical confusion that still confounds.
A consideration of the broad discretionary power of the modern administrative state would not be complete without discussing the Supreme Court’s decision inChevron v. NRDC and the destructive legal doctrine to which it gave birth. TheChevron doctrine has its origin in a legal challenge to the Environmental Protection Agency’s chosen means of enforcing the Clean Air Act. The petitioners argued a new regulation enacted in the first year of the Reagan administration was inconsistent with the statute as enacted by Congress. The plaintiffs named as defendant in the suit Anne Gorsuch, then head of the EPA and mother of current Supreme Court nominee Neil Gorsuch (who has been critical of Chevron).
Specifically, the lawsuit set forth a challenge to the agency’s implementation of the so-called “bubble concept,” whereby several distinct sources of pollution at a single plant could be grouped together — treated as under a single “bubble — for the purposes of compliance. The laxity permitted by this bubble rule, the petitioners argued, was at odds with the Clean Air Act, an abuse of the agency’s discretion.
The D.C. Circuit, in an opinion authored by Ruth Bader-Ginsburg, held the EPA’s new rule was impermissible. As an energy company, Chevron had standing to appeal, and the Supreme Court heard arguments in February of 1984. Reversing the D.C. Circuit, the Supreme Court concocted a new test for determining whether a federal agency’s rulemaking ought to stand. Confronted with a statute that is “silent or ambiguous with respect to the specific question,” the proper inquiry is whether the resolution provided by the agency regulation represents a “permissible construction” of the law’s language. Courts must defer to anyinterpretation that is reasonable — which is to say, that is not “arbitrary, capricious, or manifestly contrary” to the law — an incredibly low bar for the government. Calling up the Wilsonian ideal of a bureaucratic state run by qualified, disinterested professionals, the Court noted, “Judges are not experts in the field.”
As a matter of practice, the Chevron doctrine completely precludes judicial review of an administrative agency rule. The rule thus perverts the constitutional order by allowing the federal government to interpret the meaning of the law for itself, without any material check on its interpretations and, therefore, its power. Such total deference fundamentally undermines the vision of the federal government reflected in the Constitution.
Even if one agrees with an agency’s interpretation in a given case, this repositioning of authority is a dangerous subversion of the rule of law (the irony, of course, is that in Chevron, deference to the fourth branch happened to result in less bureaucratic meddling). Left free to police itself, the federal bureaucracy has naturally arrogated to itself more power and discretion, its regulatory reach stretching into almost every area of life. It has acted in accordance with its nature. The administrative state is at base the embodiment of ruling-class condescension, contemptuous of its benighted wards and their efforts at self-organization.
Ultimately, the Chevron case is much more than a mere curiosity of administrative law; it points to a deeper question about what kind of society and political culture we want to cultivate. In one direction is a country in which a thriving civil society means problems are solved at local levels, through the efforts of free individuals and their voluntary associations. In the other direction, that of the sprawling, nearly omnipotent, administrative state—an undemocratic, illiberal society, suffocated under the rules of faraway bureaucrats accountable to no one.
Laurance Labadie was the last true exponent of nineteenth-century Tuckerite anarchism.
Laurance Labadie was born in Detroit, in the summer of 1898, the son of the famously affable anarchist Joseph A. Labadie. Jo, as he was called, neither pressed anarchism on his children nor seems to have done very much pressing or parenting at all, preferring to allow the Labadie brood space to learn and grow on their own terms. That they, to his disappointment, never found much happiness or success suggests, perhaps, that the anarchist’s aversion to hierarchical relationships is ill-suited to the business of raising children into content and independent adults. Though certainly independent of thought and action, Joseph’s son Laurance was anything but content. Even to those who loved him and considered him family, the younger Labadie did not inherit his father’s easy, obliging way. In her book All-American Anarchist: Joseph A. Labadie and the Labor Movement, Laurance’s niece, Carlotta Anderson, writes that he “bitterly disappointed both parents,” never marrying or achieving career or financial success.
Laurance was, by all accounts, a classic curmudgeon, quick to find fault and disinclined to suffer fools gladly. Marked by a deep and pronounced contempt for his fellow man, Labadie’s political writings reflect his apparently lifelong feelings of depression and detachment. Aspects of Arthur Schopenhauer’s thought seem to have penetrated Labadie’s psyche rather deeply. Schopenhauer’s work emphasizes the human will, its arbitrariness and irrationality, from which came Labadie’s conclusion that individual lives and the projects attached thereto are pointless. Schopenhauer’s The World as Will and Representation brought to Labadie’s attention the rather “precarious position,” in Schopenhauer’s words, of being stranded “on one of those numberless spheres freely floating in boundless space.” Labadie wondered how human beings, products of a “moldy film” budding on one of these many planets, could have any significance at all, any cosmic importance. Labadie regularly returned to this, the nagging feeling that nothing matters or could matter.
When historian Paul Avrich interviewed him just months prior to his death, holed up in a disheveled stone house with only a stove for heat, Labadie referred to himself as a recluse and reiterated his lack of faith in the prospects for liberty and humanity. Despondent to the last, Labadie told Avrich that “anarchism is a pipe-dream,” unattainable for a human animal that is, in Labadie’s estimation, merely “an animated alimentary canal,” different “from the worm only by the appendages which have developed on him.”
Summarizing The Commonwealth of Oceana, James Harrington’s controversial mid-17th century work of political theory, Daniel Webster wrote that “power naturally and necessarily follows property.” A free society, Harrington argued, requires that property may be owned and alienated by all citizens, and accordingly, that property ownership be not confined either to one “sole landlord” or a few. His ability to own property free from the old fetters of feudal society is the common man’s bulwark against the determined encroachments of the total state; that is, private property provides the individual with a sphere of autonomy into which tyrannical state power cannot reach.
A man’s home, as the saying goes, is his castle. For socialists and even many progressives, however, private property is an obstacle to be overcome, the source of the capitalist’s power to exploit, a privilege that must yield to broader social justice concerns. Because their philosophy treats private property as inherently anti-social, their conception of the good polity requires proactive state limitation of individual property rights. The question naturally arises whether we should accept the premise that strong protections for individual property must divide us from one another and promote economic injustice. Classical liberals and libertarians submit that just the opposite is true: Genuine social cooperation and community are fundamentally impossible without private property.
If the left’s criticism of private-property libertarianism is that, today, property is unjustly concentrated in the circles of the rich and politically connected, then this is in principle no failing of private property itself. Widespread ownership of property was and is the ideal of classical liberalism and libertarianism, a result to be attained not through planning and redistribution — which will, in practice, always favor incumbents and insiders — but through the operation of voluntary market exchange and proper homesteading.
As John Médaille points out, socialism gathers wealth and property — and thus economic decision-making power — in the hands of the state’s small topmost bureaucratic class, analogous to the Inner Party in Orwell’s 1984. In his book Toward a Truly Free Market, he wrote, “When people hear ‘distribution of property,’ many automatically think, ‘Socialism!’ But nothing could be further from the truth. In a capitalist system, there are few owners of the means of production, but in a socialist system, there is only one, the state.”
Médaille’s book draws a distinction between capitalism as it currently exists — what many free-market conservatives and libertarians would distinguish as crony capitalism — and the ideal of a truly free market, in which property is more widely and evenly distributed.
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