Tuesday, October 04, 2016

Conservative schizophrenia about Oliver Wendell Holmes

Sandy Levinson

Oliver Wendell Holmes has become one of the key villains in the contemporary conservative critique of "Progressives" circa the beginning of the 20th century.  Randy Barnett and many others hate his Lochner dissent, which, of course, basically licensed untrammeled majority rule even if arguably "tyrannical."  His curt dismissal of "Mr. Herbert Spencer's Social Statics" represented a complete rejection of the notion that the Constitution was somehow a libertarian document.

This critique is not without at least some merit.  Most of us have become wary of Holmes's full throated majoritarianism and his suggestion that judges should basically be indifferent to the tyrannical aspects of government (save, perhaps, when regulating the speech at least of "puny anonymities," though not, say, Eugene V. Debs).  Barnett's critique of "minimum rationality" when used mindlessly to uphold rent seeking regulation like that in Williamson v. Lee Optical Co. or placing high barriers to entry by would-be florists is worth taking seriously.

But one should recognize that it is Oliver Wendell Holmes who is being channeled by those who blithely defend the the sociopath Donald Trump's behavior re the federal tax code, including such surrogates as former New York mayor Rudy Giuliani.  Both praise the sociopath's "genius" in apparently avoiding the payment of any federal taxes for a period of well over a decade.  Giuliani and his fellow enabler Chris Christie have pointed out, probably correctly, that the sociopath broke no laws in zeroing out his participation in helping to finance what the United States does.  What they are really arguing, though, is that their candidate is a Holmesian "bad man" who has no commitment at all to anything that might be called the welfare of his society and is motivated exclusively by the question "what's in it for me?"  That is one of the major points made in Holmes's The Path of the Law, which remains the most important single essay ever written by an American on law.  In it,  Holmes rejected any idealistic or moralistic definition of law in favor of his "predictive" theory, i.e., what courts (or other public authorities) would do.  But the real punch is that he suggested to his impressionable audience of Boston University students and their teachers in 1897 that the best way to understand the law is to adopt the perspective of the "bad man," who is interested exclusively in the possibility of suffering any sanctions for his behavior.  If the answer is no, then the bad man will obviously go ahead and do it.  Interestingly enough, the very nomenclature of the "bad man" suggests that Holmes, who was wounded three times during the Civil War (whereas we can be absolutely and completely confident that the sociopath, had he been alive then, would have taken advantage of the option of simply avoiding conscription by paying for a substitute), did not mean to valorize the bad man, but only to use him as an analytic construct, the same way that students learn in Economics 101 courses about an entirely asocial and amoral "economic man" (I use the gendered term advisedly) who wants only to maximize individual utilities and has no inherent regard for anyone else.  What has happened, of course, since 1897 is that this analytic construct, which indeed has its uses, has become accepted as a description of the way that sophisticated people should in fact behave, so that sociopathic behavior becomes normalized, so long, of course, as it doesn't "violate the law."

David Brooks, about whose column I'm extremely ambivalent, has what is in fact an excellent, albeit somewhat overwritten, column in today's New York  Times pointing out that the sociopathic candidate is in fact a terrible citizen even if one grants, for sake of argument, that he has hired brilliant accountants and others who have enabled him in essence to freeload off the taxes paid by chumps who in fact take seriously their duties (even if not always legally required) as a member of a society dedicated to the goals set out, say, in the Preamble of the Constitution.

Holmes is in fact, for better and worse, the "brooding omnipresence" over much of our jurisprudential and political discussion 85 years after his death.  At the very least, apologists for the sociopath should recognize that they are embracing and making normative what Holmes himself offered only as an analytic construct and that doing so promises only to make our country ever more of an Hobbesian nightmare where no one can be trusted to be anything other than a self-serving sociopath unless explicitly forbidden to do so by the law (which is in fact enforced and not merely "on the books").  It is often said, altogether accurately, that the scandal is not what is illegal (and done anyway), but what is perfectly legal and, as a matter of fact, probably more dangerous to the social welfare than is most illegal behavior.  We count on general social decency, for example, to refrain from taking full advantage of one's First Amendment liberty to say and do really terrible things.  The sociopath candidate cannot restrain himself here anymore than he can with regard to taking advantage of every possible self-serving reading of the tax code.  It would be one thing if, like Warren Buffett, he exhibited even a scintilla of embarrassment and, of course, actually used his alleged fortune to make genuinely charitable contributions.  He does not, though, which is precisely what makes him the quintessential "bad man."


Pence called out Kaine tonight for being a "career politician," which is a bit off (went into politics in the 1990s), even ignoring that Gov. (sic) Pence is no newbie.

James Madison was a "career politician." That alone -- long term experience in public service -- should not be deemed a problem. And, being a businessman isn't either though one can question correctly how much it provides the talent set to be President.

What has long been clear about Trump is that his specific breed of businessman and his personal character (from the beginning, something correctly deemed an important factor for public figures) is problematic. Some justify things he does as "just business" (sounding a bit too much like someone out of the Godfather if perhaps apt given some of his connections) though not accepting that line in respect to Hillary Clinton regarding her career in government. But, in both spheres, there are various ways to go. Some business persons are good, some politicians are. etc.

Trump by long practice, and those who report on him have said this for years, has fundamental problems, basically a sort of huckster that didn't advance the public good much (as many in business do) with serious personal issues (one need not call him a "sociopath" to note this as more than "fascist" isn't necessary to note his very troublesome authoritarian tendencies). A sort of proverbial "bad man."

Gaming the tax code alone isn't the issue here though the little window provided (given he doesn't want to follow the accepted mores of recent politics and release his taxes, even though given his lack of experience in government, a full accounting here is more important & his competitor is being challenged for hiding things) ... if Clinton did something like that, his supporters would be apoplectic) isn't charming. In effect, he risked, failed mightily and passed the cost on to others. Not a promising prologue for the presidency. By itself, it is more a data point. His whole career is what we should judge there.

Evidence of his actual deeds v. rhetoric on workers and trade:

Here's a link to Fortune's website for an article by Shawn Tully and Roger Parloff titled "Business The Trump Way:"

that includes Trump's references to his book "The Art of the Deal" as be boasted of his business acumen as qualifying him to be president. But The Donald in the course of his campaign failed to reference his $916 million loss in 1995 just recently reported on in the NYTimes. Many of Trump's base continually lauded Trump's successes as a business man before the recent NYTimes story - and the base continues to do so as Trump's Laurel & Hardy surrogates Rudy G. and Chris C. proclaim Trump a genius for his tax skills. The curtain of this Wizard of Oz has long been pulled back. Take away Trump's claims as a business success and what does that leave to qualify him as a President/CIC?

Thomas Edsall's NYTimes column today "Global Trade War, Trump Style" brought to mind Luddites of yesteryear. Has what Trump tapped into a modern luddite movement of sorts for a significant portion of his base? Should technology be limited to accommodate them in an isolated America? The needs of people who have lost good paying jobs due to globalization/technology must be addressed by government. Bipartisanship is required. Democrats used to respond but Republicans Administration going back to Reagan looked upon this as welfare and thus inappropriate. It isn't clear to me that the current Republican Party is any different despite its support of Trump's presidency.

Over time, many changes take place that have to be addressed. I was admitted to the MA bar in 1954. The practice of law has changed over that period of time. So has the medical profession. The free market/laissez faire cannot adequately address needs of people who suffer from changes. That's a role for government, good government.

I don't see that it takes a Holmesian bad man to write off income against losses when paying tax. A person who loses $916 million one year and makes $50 million the next year is obviously not in the same position to pay $20 million in federal income tax as a person who didn't lose $916 million the prior year. Now, if there's some doubt about the genuineness of the loss, that's another thing, but I'm sure such a large loss was extensively audited, and it's well-reported that Trump's businesses were massively failing at the relevant time.


The Democrats are speculating that Trump employed a basic precept of corporate income tax law where the corporation can calculate profits over time. For example, if Trump, Inc. lost $1 billion in year one, but made an annual profit of $100 million over years 2-11, then the net profit and taxes over that 11 year period would be zero. Nothing "genius," "bad" or remotely "sociopathic" about employing this rule. Corporations (including the Clintons and the NY Times in just the past few years) routinely employ this rule whenever they suffer losses.

Corporations which do not employ this rule after suffering losses are more than chumps. They are taking money from and thus arguably violating their fiduciary duty to their shareholders. This would be analogous to parents declining to take their personal and dependent deductions in the calculations of their personal income taxes and sending thousands of dollars they do not owe to the IRS rather than using this money to support their children. True sociopathy.


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