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In my previous post on Ken Kersch’s Conservatives and the Constitution, I wrote about the book that Ken wrote. (Well, mostly I wrote about myself, but I did mention the book from time to time.)This post is about a book that Ken did not write and probably has no interest in writing.
Ken wrote a book about Conservatives and the Constitution, not about Libertarians and the Constitution.That is understandable: There were not enough libertarians, either in the New-Deal-to-Reagan era on which Ken focuses or today, to matter sufficiently to warrant a book.Yes, there are a few libertarian thinkers who are important to conservative theory and vice versa, but by and large the two bodies of thought go their separate ways, unless it is to argue with each other.(So why do conservatives and libertarians often hang out together?Partly it is because each finds the other more interesting and tolerant than the general run of the Left, and one can therefore have more intellectually stimulating conversations.And partly it is because the Left has gone – or maybe always was -- so bat-shit crazy that some kind of alliance is necessary for simple self-preservation.)If, however, there were ever to be written a book about libertarian constitutional thought in the post-War era, the star of the book would have to be Ayn Rand.
That is not because Rand had a developed body of thought on constitutionalism.She said and wrote relatively little on the subject, for reasons that I will get to shortly.Nor is it because all libertarians during that period were Randians.A lot of them were (and are), but a lot of them weren’t (and aren’t).Indeed, a good chunk of libertarians, then and now, regarded Rand as an embarrassment, to the point where a lot of libertarians effectively defined themselves as “not-Randian.”And that is exactly the point.Rand is so important a figure to libertarianism – think of Francis Schaeffer, John Courtney Murray, Bishop Sheen, and Robby George morphing into one gigantic Power Ranger – that any libertarian in Ken’s era of interest who was not a Randian probably felt some obligation to explain why not.(I imagine, perhaps wrongly, that non-Marxist socialists might have the same experience: You can be a socialist without being a Marxist, but you probably have some felt obligation to explain why you are not a Marxist.)That is likely less true today, where the menu of options is larger and the sheer power of Rand’s presence has faded since her death in 1982, but it was pretty clearly so into the 1980s.
Rand wrote and said very little about legal theory.She wrote a few articles on legal-ish topics, such as abortion and free speech, but the articles focused on philosophical rather than distinctively legal aspects of those subjects.She made a few generally favorable comments about the United States Constitution (I believe all of which are quoted in Ken’s book at some point), but she never articulated a theory of either constitutional design or constitutional interpretation, and she was anything but an unqualified admirer of the actual document.At the conclusion of Atlas Shrugged, Judge Narragansett – Rand’s representation of Objectivist legal thought – is drafting a constitution for the forthcoming reborn America:
He sat at a table, and the light of his lamp fell on the copy of an ancient document.He had marked and crossed out the contradictions in its statements that had once been the cause of its destruction.He was now adding a new clause to its pages: “Congress shall make no law abridging the freedom of production and trade . . .”
Notice that Rand did not say “Neither Congress nor any state shall . . . .”That is probably less because of a deep and abiding regard for federalism than because she just was not thinking much about constitutional design.This was a tiny part of her story.Indeed,who other than me even remembers Judge Narragansett?
Rand’s neglect of legal theory is not remotely surprising, given the hierarchical structure of philosophical (and all) thought.Legal theory is a subset of political theory.Political theory is an application of moral theory in a specific setting.Moral theory, for its part, is a search for a certain kind of knowledge and therefore depends for its soundness on deep epistemological principles regarding knowledge in general.Epistemology, in turn, is the study of how people perceive, integrate, and process reality, and it therefore depends on (or is at least co-dependent with) metaphysics. Rand did not see herself as a legal or political thinker.She did not even see herself as primarily a moral theorist.Rand was first and foremost an epistemologist and metaphysician. She was doing First Philosophy.All else – the ethics, the politics, the legal theory, the aesthetics – follows from the primary principles of metaphysics and epistemology.If you want to understand Rand, you do not start with The Virtue of Selfishness or Capitalism: The Unknown Ideal.You start with Introduction to Objectivist Epistemology.If you read Atlas Shrugged and skipped the part in Galt’s speech where he started talking about the nature of concepts because it seemed boring, you skipped THE central point in Rand’s thinking.
A sound metaphysics and epistemology – meaning a philosophy of reason-- leads almost immediately to a eudaimonistic ethical egoism.(Indeed, the arguments for non-egoistic ethical theories are so transparently awful that even someone as good-naturedly open-minded as I will have a hard time taking them seriously.But I try.)Eudaimonism, in turn, leads fairly readily to some kind of political structure in the liberal-to-libertarian range, though the details turn out to be unsurprisingly devilish.For example, I am an anarchist, and Rand thought anarchism was nutso.Rand was a strong defender of intellectual property, and I am dubious about that particular enterprise.Rand was not interested in those details (other than the part about anarchism being nutso, on which she wrote a great deal).She had millenia of dreadfully wrong metaphysics and epistemology, and the dreadfully wrong moral theories that derived from them, to bash, and that was a full-time occupation.The Judge Narragansetts of the world would work out the details.
What does any of this have to do with Ken’s book?Not much, of course, because Rand did not have much to do with Ken’s book.But he did see fit to mention her on a few occasions, and almost all of those mentions reflect very common misunderstandings of Rand’s work.This is not a criticism of Ken: It was not his job to acquire a deep understanding of Objectivism.Indeed, it is precisely because Ken is reflecting some widely held views that I think it is worth at least a blog post to fix them.In order of appearance:
(1) According to Ken, Rand believed that capitalism “had once flourished in the United States, in the late nineteenth century” (p. 126).Two things.First, Rand never thought that capitalism had flourished anywhere.That is why it is an “unknown” ideal.It did better in the United States in the nineteenth century than it had done anywhere or anytime else, but that is like talking about the best relief pitcher on the Seattle Mariners, the most listenable track on “Nebraska,” or the most libertarian president of my lifetime. Rand had no wistful fondness for the nineteenth century. Second, to the extent that she mentioned the nineteenth century, to my knowledge it was always as an undifferentiated whole.I cannot think of a single instance in which she singled out the “late” nineteenth century for special solicitude, and I am reasonably well acquainted with Rand’s corpus of work (though of course I could be missing something).All of which raises this question: Where did Ken get the idea that Rand would find something special in the “late” nineteenth century?What about that period is more “Randian” in Ken’s mind than the rest of the century?The only thing that I can come up with is that slavery was formally, even if not functionally, abolished after 1865, which is a very big plus for defenders of capitalism.Ken: Is that what you had in mind?If not, was there some association of Rand with something else in that time period that you were trying to draw?And if so, why?
(2) Rand railed about (inter a great many alia) what she called “psychologizing,” which is attempting to explain people’s intellectual processes by amateur speculation about motives and influences.Ken, I think, engages in a bit of psychologizing when he speculates that Rand’s moral theory resulted from events in her life and “her nature” (p. 128). This is the fallacy that I mentioned earlier of divorcing considerations of ethics (and politics) from its epistemological and metaphysical foundations.Rand’s ethical theory results from a very large epistemological and metaphysical foundation.First Philosophy is . . . well, first, and the other stuff comes . . . well, not first.The focus of intellectual history should be intellectual, and trying to explain away a philosophical structure by amateur psychologizing is just a tad nonintellectual.
It is more intellectual to try to do intellectual history by identifying intellectual influences, and Ken has an offering on the next page, where he is puzzled that “Jennifer Ratner-Rosenhagan oddly omits any mention of Rand in her otherwise superb study of the influence of Nietzsche on American political though” (p. 129 n.70).Again, this fails to understand the basic foundations and hierarchical structure of Rand’s thought.Rand had exposure to Nietzsche when she was studying philosophy in Russia, and she certainly sympathized with his critique of religion and religious ethics, but by the time she started doing serious philosophy of her own, Nietzsche’s influence on what she wanted to do was pretty close to zero.Rand saw herself as working in the (broadly speaking) Aristotelian tradition.She had far nicer things to say about Thomas Aquinas than about Nietzsche.This is not even mildly surprising.Rand was doing First Philosophy, and Nietzsche was not much of a First Philosopher.His metaphysics was nonexistent, and his epistemology was unsystematized ramblings.He just does not have much to offer to someone trying to perfect an Aristotelian project.Comparing Rand and Nietzsche because they both liked heroic men and didn’t like Christianity is like comparing Corey Booker and Hitler because they were both vegetarians.It confuses aesthetic preferences with philosophical foundations. For the best account of Rand’s intellectual development, including an excellent discussion of Rand and Nietzsche, see Chris Mathew Sciabarra, Ayn Rand: The Russian Radical (1995).
(3) Rand appears in Ken’s book mostly in the chapter on “The Heroic American Businessman” (pp. 128-29).Here’s the thing: Rand did not regard all businessmen as heroes.Some of them were heroes, and some of her heroes were businessmen (though John Galt was a physicist and philosopher, while Howard Roark was hardly a titan of industry), but some of the worst villains were businessmen.Think of James Taggart and Orren Boyle.For Rand, it mattered very much what kind of businessman you were talking about.Some good, some bad, some meh.She objected, of course, to the categorical castigation of all businessmen simply for engaging in business, but to mistake that for a categorical celebration of all businessmen simply for engaging in business is pretty egregious.Rand celebrated acts of creativity and productivity, but the extent to which businessmen engage in those acts is decidedly contingent.
By the same token, it is fundamentally wrong to attribute to Rand “a contempt for mass man” (p. 320).Rand’s contempt was generally reserved for people with extraordinary ability who misuse it (e.g.,Robert Stadler).Mass man is not relieved from the obligation to think and focus just because he is mass, and to the extent that “ordinary” people go along the bad ideas of intellectuals without thinking about them, they are culpable (go look at the famous scene in Atlas Shrugged of the people on the doomed train going into the tunnel).But the intellectuals are more culpable, because getting ideas right is their job.For Rand, mass man is largely a victim, deserving of sympathy more than contempt.(Eddie Willers would be the representation of the basically decent, non-philosophical sort who is destroyed by events around him precipitated by evil intellectuals.)Rand was not a Nietzschean.Rand was a Randian.
Rand is vital to legal theory because epistemology is vital to legal theory and Rand is vital to epistemology.But that is not a book for Ken to write.That’s my job.Maybe in a few decades . . . .
Gary S. Lawson is Philip S. Beck Professor of Law at B.U. Law School. You can reach him by e-mail at glawson at bu.edu