Monday, June 11, 2018

Non-light reading for the summer of our discontent

Sandy Levinson

Remaining at home recovering from a (successful) hip replacement—though I’m eagerly awaiting a second replacement later this year—offers opportunity for reading.  I want to bring to your attention two extremely interesting books well worth your time and intellectual energy.

The first is Patrick J. Deneen, Why Liberalism Failed (Yale, 2018), which has gotten quite a bit of attention.  It is indeed as assault on contemporary liberalism (and on at least some of its theoretical underpinnings in such political theorists as Hobbes and Locke), in both its “strong state” aspect identified with contemporary Democrats and basically anti-social libertarianism that is increasingly prominent on the Right.  A plague on both their houses is his message, for he argues that both are founded on a common rejection of the kinds of communities necessary to human flourishing. A typical passage (p. 102) is that “A technological society like our own comes into being through a new kind of political technology—one that replaces the ancient commendation of virtue and aspiration to the common good with self-interest, the unleashed ambition of individuals, an emphasis on private pursuits over a concern for public weal, and an acquired ability to reconsider any relationships that limit our personal liberty.”  Though Deneen is described as “conservative” in today’s nomenclature, it should be clear that he provides little or no succor to most people who describe themselves as such in today’s world.  As his language suggests, he wants to revive a mixture of ancient and Christian theory that was supplanted, he argues, by Machiavelli and his successors, devoted to a polity of “the common good,” which necessarily require what is described as the “self-discipline” (or “virtue”) to subordinate one’s seeming selfish interests to that good.  Not surprisingly, he revives the distinction between “liberty” and “license.”  One might criticize him for paying insufficient attention to other philosophers writing today, including, most relevantly, Michael Sandel, who also preaches (and I use that word advisedly) a politics of the common good and a critique of John Rawls for promoting a view of human nature that refuses to recognize our "embeddedness" in pre-existing communities.  But Deneen isn't really writing a conventional scholarly book full of citations and response to the arguments of others.  That's all right.

My own view is that in many ways he has written a Port Huron Statement for our time.  That is, it contains much of the critique that Tom Hayden (who was originally Catholic himself) wrote of the alienated and alienating society that required the development of a genuine “participatory democracy” to replace reliance on an impersonal and bureaucratic state. Indeed, some of Deneen’s strongest passages are critiques of The Federalist (and the Constitution) for adopting a completely dessicated theory of citizenship that ultimately substituted the shallow pursuit of commercial interest for genuine concern about the good of the community.  

To be sure, there are, to put it mildly, tensions within his argument.  His encomia to the virtues of living locally and accepting the strictures (and structures) of existing communities pays only extremely limited attention to the discriminatory (and worse) aspects of many communities.  He acknowledges, somewhat reluctantly I think, the presence of unjustifiable racism and patriarchy, but spends almost literally no pages on the desirability of developing a state that is strong enough to overcome communities indifferent to what the Constitution calls “establishing Justice.”  It is also clear that he is unhappy with the latitudinarian policies now pervasive with regard to family (and reproductive choice).  

So there is clearly lots to argue about, but that’s the point.  In 198 pages he presents a strongly felt and argued polemic against the pervasive ideology of the contemporary West.  It would make a marvelous book for collective discussion, precisely because it is really impossible, when all is said and done, to label it as either “left” or “right” in contemporary terms.  It may be “reactionary” in the deepest sense of that term.

The other book well worth reading (and discussing) is Steven Brill’s Tailspin:  The People and Forces Behind America’s Fifty-Year Fall—and Those Fighting to Reverse It (Knopf, 2018). Even moreso than Deneen, it appears designed to produce genuine depression on the part of most of its readers.  That is, it sets out a comprehensive picture of the ways that the US is in a genuine tailspin (independently of, though certainly not helped by, the election of Donald Trump).  He begins with a fascinating chapter built around Daniel Markovits’s commencement speech (which perhaps Jack might have heard) to the 2015 class at the Yale Law School.  Briefly, it suggests that the replacement of traditional WASP hegemons by a “meritocracy” might have had significant costs as well as benefits.  After all, the winners of the meritocratic competition, typified by the Yale Law School, manage to convince themselves, with some exceptions, that they have earned their success and are entitled to prosper even if this means leaving many “losers” well behind.  Think only of Facebook, Google, and other high-tech companies, not to mention the financial services industry that Brill also spends a great number of pages on.  But the book goes on to describe many specifics, unlike Deneen, whose book is far more abstract, and it is impossible, I think, not to agree with Brill on most of his diagnoses.  He has an especially powerful chapter, for example, on the travesty that is American “infrastructure,” which almost undoubtedly poses far greater dangers to more Americans than all world-wide terrorists and which gets almost no attention even when bridges literally collapse or we discover what is happening to the Flint water supply (which he fails to mention specifically).  He places most blame, altogether deservedly, on the modern Republican Party, which is obsessively devoted to depriving the state of taxes necessary to provide for any vision of the common good other than an over-militarized state, but Democrats don’t come out that well either.  The reason is that both parties are increasingly dependent on big donors and protecting their interests.  One might argue that Hillary Clinton destroyed her candidacy when she accepted over $600,000 from Goldman Sachs for giving two speeches whose anodyne texts she resolutely refused to release.  This, I think, established her as the candidate of the status quo (fairly or not) far more than what Bernie Sanders correctly called “those damned emails.”  

One of the reasons that Brill was kind enough to send me a copy of his book was that he had seen my posting on Balkinization referring to the Supreme Court as “the running dogs of the capitalist empire” because of the conservative majority’s valorization of the Arbitration Act of 1925.  He is more temperate than I in his language, but he agrees that Lewis Powell’s 1972 memorandum about business mobilizing in behalf of corporate capitalism (and anti-unionism) was a key moment in American political and ideological history.  He certainly agrees that the Court has indeed done Powell proud, nowhere more than in the arbitration cases, whose costs to a decent society that protects the most vulnerable he eloquently lays out.  He is also harshly critical of the failure of the Obama Administration to hold anyone truly accountable, in any personal sense, for the disaster of the economic collapse.  "Settlements" that include ostensibly impressive fines paid to the treasury become ultimately simply a cost of doing business, leaving the corporations neg better off than they would have been had they not engaged in the practice.  The combination of "too big to fail" and "too big to jail" is, he correctly argues, toxic.  

One of the chief villains of the book is law professor Martin Redish, of Northwestern, whom he views as the chief architect of the corporatization of the First Amendment, i.e., the grant of full-scale First Amendment rights to corporations, whether relating to corporate advertising or political campaign contributions (Citizens United).  Conversely, he selects out former Yale Law School Dean Robert Post for praise in presenting what Brill regards as a more nuanced theory of the First Amendment, though he tellingly quotes Post that at the present time, because of the capture (and theft) of the Court by political conservatives (quite unlike Deneen, it should be clear), “We’re completely fucked.  It’s totally clear.”

Post’s inelegant but altogether understandable comment is key to understanding both the strengths and perhaps ultimate weakness of Tailspin. As the subtitle indicates, Brill has written a highly critical, but not truly despairing, book, for he identifies a number of people and organizations whom he sees as possibly leading our way out of the wilderness.  Some of them, like Peter Edelman, I wholeheartedly agree with; others, like Philip Howard, who draws plaudits for his attacks on the sclerotic civil service and bureaucratic red-tape, I’m far more suspicious about.  Just as Deneen only in passing concedes that liberalism has in fact been responsible for many good things in the world, Brill at times seems overly critical of aspects of the "due process revolution," even as he does admit its truly vital importance.  I agree that it presents a true Goldilocks problem.  Defining the "just right" amount of due process is extraordinarily difficult, and it is not difficult to find specific examples of excess (in both directions). 

But the central question, of course, is really whether there is a way out of our tailspin.

Not surprisingly, I was most disappointed in Brill’s failure to discuss the extent to which our 1787 Constitution may itself be an impediment in important ways.  It is one thing to denounce Marty Redish’s theories of the First Amendment, which could easily be overruled with a new majority on the Supreme Court, or the indefensible deference given the Arbitration Act, which also requires only a new appointment or two to undo.  But, of course, the gridlock that explains, say, the dreadful state of New York’s three airports or the difficulties in the way of modernizing the Newark port (which I was surprised to learn was the second most important port along the East Coast) and the inability to build a new tunnel between New Jersey and New York is in part a function that less than half of the country controls 82 of the 100 senators, and most of them have no interest in contributing to the health of the Northeast.  There is only one reference in the book to the possibility of constitutional amendment, which is quickly (and plausibly) dismissed as futile. Ultimately, he places his faith in the appearance of a political leader like Bobby Kennedy, whose assassination Brill clearly regards as truly of world-historical importance inasmuch as only he might have cemented an alliance between the underclass and the middle-class (including union members).  It would take us far too afield to disuss whether that is a realistic view of Kennedy; what we can all agree on is that that possibility was eliminated fifty years ago this week, and no one has emerged as his true successor.  

Brill continues to exhibit more faith in the regeneration of our polity than I currently have.  I'm a big fan of Lin Manuel-Miranda's injunction, through the mouth of Hamilton, to "rise up," though I confess to near complete uncertainty as to what that might mean in the 21st century.  I am truly surprised that there has not been more rioting in the streets, and Brill actually does suggest that if many bridges start collapsing at once, then perhaps there would be a new-style "March on Washington" that would shut the city down if Congress does not actually act.  And I continue to believe that secession should not be ruled off the table as a serious possibility should the hinterlands (and their 82 senators) continue to be indifferent to the fate of Pacifica or Atlantica.  

So, even if you’re not recovering from an operation, I heartily recommend reading both of these books and, even more to the point, discussing them with your friends and neighbors.  They are important reflections on the causes of our present discontents.

I am continuing my practice of opening my posts to comments, but, as I’ve sometimes stated in the past, I’m completely uninterested in any comments you might have unless you have read at least one of the books, and even then, your comments should be limited to that book.  


I didn't read these books so simply will note that We the Corporations: How American Businesses Won Their Civil Rights by Adam Winkler was worthwhile and covers the corporation points some.

Sandy's "anti-social libertarianism" in his second paragraph seems more that a tad redundant.

Like Joe, I haven't read either book. From your description of Deneen's book, I'd offer 2 comments:

1. He seems far to trusting of ancient authors who described their societies as they theoretically should have been, rather than as they actually were. I think he'd find that the criticisms he makes of today's society would be even more applicable then.

2. I'd say he's unfair to the Federalist, which doesn't so much encourage a "desiccated society" -- most of the Framers were, after all, strong believers in Montesquieu and classical republicanism -- as recognize some potential flaws and try to ameliorate them.

As for Brill, from your description he seems guilty of overlooking both structural factors in the Constitution (which you note), but also the anti-democratic tendencies of the Republican party. If the country is ever to recover from Trump -- I'm cautiously pessimistic -- ensuring a more democratic polity is the single most critical job if the Dems ever re-take control. That includes fixing the stolen seat on the SCOTUS, without which democratic reforms will be struck down for partisan purposes.

By the way, there is an interesting review of Winkler's book in The Nation: "Artificial Persons The long road to Citizens United." By David Cole.

I also haven't read either book but for more non-light reading that attempts to provide a Scottish Enlightenment alternative to Hobbes et al. see Paul Sagar's The Opinion of Mankind: Sociability and the Theory of the State from Hobbes to Smith.

Best of luck with your recovery; I trust you've got a physical therapist coming by frequently to torture you.

I'll see if these are available at the library, I could use some airplane reading on my upcoming business trip.

Might be able to get Why Liberalism Failed in time. Tailspin has ten holds ahead of me.

It may take a while for the "usual suspects" commenting at this Blog to access these two books (and once they do, committing hours to read them) in order to limit comments to such books; but most likely this thread would go into "moderation" by that time. In the meantime, I suggest looking at the reality of today with the "historic" meeting of Trump/Kim Jong un, with a quick visit to today's Daily Kos APF feature at:

Sandy's "review" of these books does address a tad of the current situation under Trump, so this comment is not entirely out of line with Sandy's comment admonition. I have no idea if this USA/NK summit will be successful (however Trump might define success), but I can use my imagination:

If successful for the USA, then Trump Enterprises might market "Trump Kim-chi."

If unsuccessful for the USA "", the NY Daily News (or Post) might feature this front page: "TRUMP KIM-CHIED!"

Cynics may say that in either event, we may all be in a pickle.

I'm limited in reading books because of eyesight issue in addition to time limitations at age 87. I learn of so many interesting books from the various blogs that I visit and I do read a lot of reviews on my desktop enabled by the computer's magnification feature. I have had an interest in Steven Brill's writings for some time. To refresh my recollection, I did some Googling and came up with this interesting review of Brill's book on the ACA process:

‘America’s Bitter Pill,’ by Steven Brill, review by Zephyr Teachout, Jan. 7, 2015

While the review is mostly positive, Prof. Teachout critiques Brill similar to the manner in which Sandy critiques Brill's new book. So I look forward to reading more reviews of of Brill's new book, including by anti-social libertarians.


Shag, I'm, at 59, not sure "younger" really applies, but I sympathize with your reading problems. Chemo induced eye problems really put a damper on my reading habits, too. I now read in a year about as many books as I used to in a week. (Admittedly, having a 9 year old son might be a factor, too.)

An ebook really helps, with the screen set to maximum brightness and a large font.

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Deneen correctly defines classical liberalism as a government which “conceived humans as rights-bearing individuals who could fashion and pursue for themselves their own version of the good life.” "[O]pportunities for liberty were best afforded by a limited government devoted to ‘securing rights,’ along with a free-market economic system that gave space for individual initiative and ambition.”

Then Deneen makes the standard progressive distinction between liberalism and totalitarian communism and fascism.

From these assumptions, Daneen offers the non-sequitur that the natural result of liberalism is totalitarianism:

Nearly every one of the promises that were made by the architects and creators of liberalism has been shattered. The liberal state expands to control nearly every aspect of life while citizens regard government as a distant and uncontrollable power, one that only extends their sense of powerlessness by relentlessly advancing the project of “globalization.” The only rights that seem secure today belong to those with sufficient wealth and position to protect them, and their autonomy — including rights of property, the franchise, and its concomitant control over representative institutions, religious liberty, free speech, and security in one’s papers and abode — is increasingly compromised by legal intent or technological fait accompli.

What Deneen misses is totalitarianism misappropriated the label "liberal" and gradually replaced the classical liberal political economy over the past century and a half. The assumption that the totalitarianism masquerading as liberalism was distinct from communism and fascism is a fundamental error. Deneen's supra critique can be equally applied to communist and fascist states.

Then Deneen engages in the classical conservative error of blaming classical liberalism (the freedom to live our lives as we please without government direction) with libertinism (abusing that freedom to to engage in self-indulgent and self-destructive acts). Nothing about classical liberalism prevents us from living virtuous lives and, indeed, we can only make the choice of self-discipline if we are free to do so.

Many of Deneen's complaints are with secular totalitarianism, which abuses government power to punish and undermine social institutions like marriage and family.

Despite his misplaced complaints, Deneen does not offer a totalitarian or a classical conservative (government imposing a moral code on the people) remedy. Instead, his proposed "post-liberal alternative" looks very much like Jeffersonian liberalism come to fruition - the cultivation of local communities and markets, self-rule at the local level and education in deeper cultural traditions (the classical liberal education).

SPAM continues to live in the dark ages of classical liberalism that doesn't work with increasing populations. That seems to be the world of current libertarianism. Libertarians can't rule as such; when they try, they become totalitarians.

SPAM in his closing paragraph introduces " ... or a classical conservative (government imposing a moral code on the people) remedy." Is SPAM referring to Trump's Revengelicals? Is SPAM in favor of such imposing? It's hard to tell.

SPAM continues to live in the dark ages of classical liberalism that doesn't work with increasing populations.

During the century-plus when most Americans enjoyed a classically liberal political economy, the United States went from being a bankrupt colonial backwater of about 4 million to a continental nation of about 90 million with the largest and most productive economy in the world, a feat unmatched in human history.

The claim large and complex economies require government direction is nonsense. A totalitarian government bureaucracy lacks the knowledge to run even the simplest business efficiently. Such agencies make a complete hash out of large and complex economies.

I didn't read either book, but I do have a small-bore on-topic question. Peter Edelman was one of my con law professors and is a lovely guy; how, though, does Brill see him leading us out of the "wilderness"?

SPAM's 12:20 PM response self-admittedly makes him a person of the past, as past he did not personally experience. Perhaps this explains why SPAM gave up a "big law firm" potential future for his rural mountain top community in CO, the High Mile State (of mind) to become, by his own admission, the top-dog DUI criminal defense counsel, and where he can use his abacus to challenge large and complex economies on the backs of envelopes. SPAM seems to further suggest that he has the knowledge to run complex businesses efficiently. That's a Unabomber mindset. 90 million to 330 million since SPAM's MAGA days to America's current economy (despite Trump) with a healthier, longer living population thumbs its nose at SPAM, who's got to get a DeLorean that will take him back to his utopia.

OT, but seconding Brett's wishes for your recovery.

An anecdote on French laïcité, from my own recovery in a Strasbourg hospital from a serious skiing accident. The physiotherapist who taught me how to use stairs with crutches used the mnemonic "les bons montent au ciel, les maudits descendent aux enfers": lead with your good foot going up, the bad one going down. But then Alsace was in Bismarck's Germany when France had its bust-up with the Catholic Church round 1900, so the 1855 Concordat still held. In 1918, when Alsace was won back, the issue was naturally unimportant and the exception was kept. So Alsatian schools have religious education, hospitals have Catholic, Protestant and Jewish chaplains, and Strasbourg University has regular faculties of Catholic and Protestant theology - though not Jewish or, more important, Muslim.


I'll take that hysterical screed as a concession of the point.

SPAM, that point "est sur son tete."

"And I continue to believe that secession should not be ruled off the table..."

Which would be the most likely outcome of a convention. Washington, Oregon, and California poss. w/ Nevada and Hawaii would make a nice country.

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Sandy: And I continue to believe that secession should not be ruled off the table as a serious possibility should the hinterlands (and their 82 senators) continue to be indifferent to the fate of Pacifica or Atlantica.


Interesting wording.

Are the "hinterlands" the new "flyover country" among our progressive overlords in Pacifica and Atlantica?

"Indifferent to the fate of Pacifica or Atlantica?" In Hungergame parlance, this is like taking the provinces to task for being indifferent to the fate of the Capitol.

Are you requesting armed hinterland intervention to liberate Pacifica and Atlantica from their oppressive governments?

Currently, the hinterlands welcomes the refugees fleeing oppression in Pacifica or Atlantica. Isn't that enough?

All fun aside, I suspect what you are really saying is, if you peasants in the hinterlands do not allow your progressive overlords in Pacifica Atlantica to rule the national government, we will secede and form a government we can control. If Pacifica and Atlantica wish to ensure armed intervention, by all means try to secede.

Ah secession.

Don E. Fehrenbacher, then.

Those interested in SPAM's views on secession just a few years ago should research the Archives of this Blog. As I recall, SPAM favored smaller communities in his Mile High State (of mind) seceding. SPAM is consistent in his inconsistency.

Excellent conclusion. As someone who read David Lazare's "The Frozen Republic" when it first came out, I agree that the body of our constitution has many problems.

"If Pacifica and Atlantica wish to ensure armed intervention, by all means try to secede."

If we were to have the Constitutional Convention SL advocates the likely outcome would be the realization that agreement is impossible and separation is for the best.

"Currently, the hinterlands welcomes the refugees fleeing oppression in Pacifica or Atlantica. Isn't that enough?"

It's been a good start and has allowed better governance in California but the current constitutional structure that allows a minority to rule is unsustainable. BTW, in the event of a break-up states like Colorado would have to figure in the costs of supporting states like Kentucky and Mississippi absent the inputs of Atlantica and Pacicifa.

Brett, you don't look a day over 58! (H/T Groucho Marx) But that photo is more than a decade old.

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