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Wednesday, December 10, 2003

American Exceptionalism: A Follow-Up Exchange on Article 6

The following comment, left by John --- a prominent legal specialist who prefers to keep his name abridged this way --- was appended to the previous article on American exceptionalism, itself not yet in its final version [no, not indolence at work in the delay; rather, because the buggy prof took off three days and went to Los Angeles . . . a very nice trip, thank you very much L.A]. John, who has lived, studied, and worked in the EU --- including a stint in one of its member-countries' legislatures --- sets out some important differences between American and EU Continental legal traditions, including the role of state authority and powers and some contrasting philosophical views as to the origins of citizens' rights: whether toward one another or vis-a-vis the state itself. John has some stimulating remarks, too, to underscore about judicial activism in this country, a topic treated in the previous buggy article . . . and for that matter, one of the most controversial, high-coiled constitutional questions of the last few decades.

What follows first is John's commentary, then the lengthy buggy reply.

In that reply, as you'll see, some explicit comparisons are laid out and clarified between the Anglo-American legal traditions of the common law, on one side, and on the other those on the Continent in West Europe that are inspired by Roman (and Roman-Dutch) laws. The common law grew up in medieval and early modern England as a set of property laws, reinforced by the sustained efforts of the barons and free towns and parliaments over the centuries to limit arbitrary state power over them. In shorthand terms, consider it a bottom-up law. It is what the English colonists brought to this country, which was then reinforced and extended by our Constitution and the greater institutionalized suspicion of state power that followed here. With some variations across Continental countries, Roman law is different; generally, it stresses state security and law and order, and the rights of citizens are set out in a noticeably different way. Over decades and longer, it has been used not only to underpin a powerful regulatory state with strong paternalistic policies --- a fair term, I think --- but to shift the meaning of rights from a negative liberal sense of defense against government encroachments toward what a former professor of mine, the noted Oxford philosopher Isaiah Berlin, called positive freedom: the efforts by governments to create conditions of self-fulfillment that Berlin himself warned against as potentially totalitarian. Berlin, it's fair to add, may have exaggerated. Writing back in the 1950s, he had in mind Nazism, Fascism, and Communism.

More recently, since the early 1960s, a different set of drawbacks of this intrusive, high-spending regulatory state has been emphasized.

According to the pioneer work of Milton Friedman, James Buchanan, Gordon Tullock, and the rest of the Chicago school in economics --- whose scholars have won more Nobel prizes than any other university in the world --- an expanding welfare-state and its regulating bureaucracies would entail an endless list of positive entitlements, pushed and demanded by powerful organized groups and responded to by politicians seeking re-election, that not only are full of paternalism and entail constantly expanding state regulatory powers to enforce, but can, it appears, soon undermine economic vitality and competitiveness. In the 1980s, this theoretical assault by economists and other social scientists like James Wilson and Irving Kristol was transformed into energetic practice --- and in all the major English-speaking countries, note, except Canada--- by the efforts of Margaret Thatcher in Britain and Ronald Reagan in the US, followed by a gradual shift in that direction by Tony Blair's Labour Party and Bill Clinton's Democratic Party when they came to power in the 1990s. Australia, New Zealand, and Ireland have followed a similar set of policies to prune severely entitlements and regulations.

Dealing with these legal and philosophical matters is one buggy task in our reply.

That done, a second task will rear up here. Specifically, the reply will set out some lengthy analysis of the biggest challenge to American liberties these days: where and how to draw the balance between terrorist threats and our concerns for security on one side, and the protection of our liberties against encroaching government surveillance and other new powers on the other. Knowledgeable citizens of good will can differ here. Jurists do too. So for that matter do politicians. Can we throw some light on this hot-wire debate? Indirectly, yes. In particular, some explicit comparisons will be uncoiled between American anti-terrorist laws and the new legal and executive powers enacted here since September 2001, and those in the EU that, it happens, are much more far-reaching . . . even, surprisingly, in Britain.

Our main source here will be Jeffrey Rosen, a George Washington University law professor --- and the noted legal editor and writer for the liberal New Republic --- who argues that though we are right to be concerned about the threats to our traditional liberties here, our checks and balances are working: both the judiciary and Congress have severely hemmed in what the Bush administration has wanted to do. More to the point, the Bush administration wanted, Rosen says, to emulate the EU countries' far-reaching legislation, and failed on every count . . . thanks precisely to our checks and balances.

The reply ends with some useful links for those of you who want to pursue the subject: including a stimulating long review of a book on terrorism and our legal and political responses that appeared in The New Republic back in August of 2002. The book is by Alan Dershowitz, probably the best known defense lawyer and constitutional specialist in the country ---- at least on the level of popular opinion; and the review is by Judge Richard A. Posner, not only the most cited constitutional and legal theorist of our times in the legal profession, but a former University of Chicago professor who is deliberately the most provocative legal commentator of our era . . . or maybe, come to that, any era in human history back to the cavemen.


I was on a trip to Canada explaining to a Dutch fellow traveler the distinction between, and relative value Americans place on, natural rights guaranteed by our Consitution and political rights (statutory entitlements) created by the legislative branch. He couldn't conceive of the difference, saying "you Americans always go on about your natural rights." Having lived many years in Europe, the failure to make that distinction is to me the fundamental cultural difference between Americans and Europeans: Europeans view all of their rights-- their very freedom-- as emanating from the state vs. Americans who are born with certain inalienable rights (emanating from God) that must be safeguarded-- our Constitution preserves freedoms, it doesn't create them. For most Americans, statutory entitlements and obligations are additive, political benefits that we democratically agree to provide for ourselves to the extent they don't encroach on our Constitutional rights. We can agree to certain entitlements and obligations one day and change our minds the next. Our fundamental natural rights, we cannot touch.

In contrast, because Europeans view the state as a source of rights and freedoms, they are more politically attentive and ideologically diverse than Americans. Arguably Americans may be able to care less about politics because of an ingrained belief the government can't take away the really important stuff. For Europeans, where there's no distinction, all that the state gives it can take away, just as in the case for Americans' statutory entitlements. I also think that describes why Europeans would tolerate anything like the EU constitution that is all about enshrining statutory entitlements rather than the preservation of individual freedom.

That being said, I think you misinterpret somewhat the right's criticism of the left's view of the judiciary, which is that the left seeks to use (and has used in several prominent instances) our common law traditions to interpret into the Constitution certain affirmative rights/entitlements. That's what conservative jurists and legal watchers are so concerned about. Particularly now that the pendulum appears to be swinging back to conservatism in America: the left seeks to blur the distinction between natural rights and legislative entitlements just like the Europeans and thereby use the Constitution and the courts as a means to preserve and expand affirmative rights/legislative entitlements that are being slowly eroded by democratic outcomes. I think this is precisely the reason for the pitched battle over judicial nominees of the Bush Administration. The battle there isn't centrally about whether justices abuse the Constitution and the courts to preserve and expand affirmative rights/legislative entitlements that are liberal vs. conservative



Thank you for these stimulating and informative comments, most of which seem sound -- at least when the comparison is with the US and the Continental West Europeans.

(i.) Consider this comparison in greater depth:

The EU Continentals are mainly under Roman-Dutch law, which is concerned traditionally with state authority and law and order from a top-down legal viewpoint. Britain, offshore, is the big exception: its legal customs of common law, which date back almost 1000 years, evolved out of property rights amid a very limited state, and these customs in turn were brought by the British settlers to the 13 colonies in the 17th and 18th centuries. Then, too, for reasons that the buggy prof still hasn't explained --- I've been away from Santa Barbara for almost 4 days now and just got back --- Britain has never had the statist traditions of the Continentals. Come to that, the notion of raison d'etat or Staatsraeson is practically non-existent in the Anglo-American tradition; the closest approximation is probably national security.


Of course, had James I or Charles I --- who tried in the early 17th century to develop an absolutist monarchy (come in Europe everywhere save in Holland itself then) --- succeeded, Britain would have evolved in a much more statist matter. But Charles I was beheaded, and then his successor, the Puritan dictator Cromwell, was beheaded too, followed in 1689 by the British then driving from power James II in 1688-89 when he tried to reinstate some form of absolutism. The resulting Bill of Rights then hemmed in severely monarchical authority, though the actual balance between Parliament and Monarchy wasn't fully settled for another century and a half. In the late-1830s, to be exact, Queen Victoria found that she couldn't appoint a Prime Minister (and hence determine the Cabinet) without the reformed House of Commons, now elected by the middle classes since 1832, giving its approval.

A former British professor mine, a good historian --- A.J.P.Taylor --- wrote a widely regarded history of Britain in the first four decades of the 20th century that started out, somewhere in the first chapter, saying that the average Briton could go about his or her business as late as 1914 without hardly being aware that a central state existed. That would be truer even of Americans. (Britain, believe it or not, fought the first two years of WWI with a wholly voluntary army. It abandoned it with a new Liberal-led coalition government headed by the dynamic Lloyd George only in 1916, enacting conscription for the first time in British history.)


To sum it all up in a nutshell, Americans and Britons and others living in English-speaking countries with a powerful common law tradition are essentially free to do what the law does not prohibit. Oppositely, Germans and Continentals generally --- with some variation --- are free to do what the law says they can. Hence the enormous detailed regulations you find in the French, German, and other Continental legal codes and governmental regulations. And since the EU executive Commission and the strong 15,000 or so EU bureaucracy are profoundly influenced by these Continental traditions, you get what strikes Americans and others as regulation-mad bureaucrats setting out huge tomes, hundreds of pages, on the design of bus doors and interiors. See gordon-newspost.

Consider another example, trivial on the surface only: it concerns the liabilities of neighbors who keep bees. If the bees wander across property lines and cause damage --- say, through a sting or some other mishap --- the German legal code sets out hundreds of pages of exacting enforceable liabilities. In British and American law, there is hardly anything said about these liabilities, and neighbors are supposed to deal with resulting damages on an informal basis. (Whether, in the last few decades, there have been actual court cases and decisions here is something that I, no specialist in the law, wouldn't dare to comment on.)


(ii.) Has the judiciary gone too far?

As for the federal judiciary's activism since the 1950s, I'm sure that you're right when you say that many conservative legal specialists, including judges, are worried about how traditional American law is being shifted toward an entitlement view similar to the EU Continentals --- at least in the era of the welfare and regulatory state that grew up after WWII.

What conservatives and many moderates have worried about, though, is less the abstract issue of what philosophical theory underpins our notions of rights --- such as equality of opportunity vs. equality of results --- than that the judiciary became an engine of clear social reform that didn't have any, or much, basis in Congress or on the level of state legislatures . . . not to mention that lots of conservatives also object to many or most of the substantive changes. On this view, the courts were exeeding their role in our system of government; they were usurping the powers of Congress. Is this true? Well, leave aside the merit of the concrete decisions. [I personally supported most, especially in their origins such as affirmative action, only to be staggered by how far affirmative action was extended, say, in universities that was essentially matters not even decided by the courts, but by university administrators --- but as I say, leave the substantive questions aside.] Sooner or later, it was inevitable that with the growth of a strong conservative movement in the Republican party and in parts of the media the last several years, conservative presidents and Congress would invariably begin to load the federal courts with conservative appointees . . . something that liberals would not like, just the opposite.

What is clear is that there is noticeable diversity in popular opinion across many states about gay rights and the death penalty, to take just these two high-pulsating issues. Given this, liberals may want to think through their traditional belief that a strong federal government is the best way to advance their causes . . . at any rate, when it comes to highly divisive culture-laden issues like the two just singled out.


(iii.) A new threat?

The biggest challenge probably to traditional American liberties is arising, it seems, out of the anti-terrorist legislation of 2001 like the Patriot Act and the subsequent creation of the Homeland Security Department. I don't want to exaggerate.

As Jeffrey Rosen, the noted legal editor of the New Republic --- also a law professor at George Washington University --- put it last year, the feared excesses in the new legislation and new department have been clearly hemmed in by judicial decisions and the role of Congress, both of which have insisted on clear legal oversight of the president's powers of detention and deportation. Similarly, libertarians on the right joined liberals on the left in Congress to restrict noticeably the new laws authorizing surveillance for anti-terrorist purposes. As Rosen noted in a long Washington Post article in September 2015, not only does this suggest that the checks and balances of the US system are working, but that he was struck --- as he researched the topic --- by

" . . . how restrained America's legal response appears when contrasted with that of our European allies. Although they weren't directly attacked, the countries of the European Union passed anti-terrorism measures during the past year that are far more sweeping than anything adopted in the United States. In October, France expanded the powers of the police to search private property without a warrant. Germany has engaged in religious profiling of suspected terrorists, a practice that was upheld in a court challenge. In Britain, which has become a kind of privacy dystopia, Parliament passed a sweeping anti-terrorism law in December that authorizes a central government authority to record and store all communications data generated by e-mail, Internet browsing or other electronic communications, and to make the data available to law enforcement without a court order. In May, the European Union authorized all of its members to pass similar laws requiring data retention."

The Bush administration, he went on to note, would like to emulate the EU countries in expanding anti-terrorist powers for the executive, but has been stymied by a vigorous Congress and judiciary. Rosen's argument, it seems to me, is largely convincing . . . without fully alleviating the concerns that lots of us have about where to strike the balance between clear threats from Islamo-fascist terrorists --- most of whom, if they could, would exterminate all 290 million Americans with WMD, and fall to their knees in prayers of joy upon learning of our extermination --- and excessive and arbitrary government intrusions into our lives, whatever the rationale.


As Rosen notes further, continuing his comparative analysis,

"What distinguished America from Europe, however, is how quickly all three of these extreme positions met with opposition from the other two branches of government. In the case of Yaser Esam Hamdi, a 21-year-old American citizen seized on the battlefield in Afghanistan and now locked in the Navy brig in Norfolk, the U.S. Court of Appeals for the 4th Circuit refused to embrace what it called the "sweeping proposition" of the Bush administration -- "namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so." Hamdi, who is being held without charge as an enemy combatant, is something of an accidental citizen -- his parents were Saudis who were working here for a Saudi company when he was born. But other countries have been even less solicitous of their citizens since 9/11. The new British anti-terrorism law (now under appeal) gives the home secretary unilateral power to designate as an "international terrorist" anyone whom he perceives as a "risk to national security," and to indefinitely detain the person without charge if the individual can't be deported.

"American courts have also been aggressive in rebuffing the administration's effort to keep secret the names and deportation hearings of arrested aliens. In the months after 9/11, the government rounded up, arrested and jailed more than 1,000 non-citizens in America as part of its anti-terrorism investigation. Attorney General John Ashcroft refused to release the names, claiming implausibly that he was protecting their privacy. In August, Judge Gladys Kessler of the U.S. District Court in Washington rejected Ashcroft's interpretation of the Freedom of Information Act and the laws governing grand jury secrecy. She ordered Ashcroft to release the names, insisting that any need for secrecy could be established on a case-by-case basis."

For the full Washington Post article, see this:


(iv) You want more?

For a wider discussion, which involves two of our most provocative and creative legal theorists --- Judge Richard Posner and Alan Dershowitz --- see this long review in here by Posner of a book by Dershowitz on terrorist threats to the American Republic and what to do with them.

A particularly stimulating treatment of the same topic, more recent, appeared in the July-August issue of Commentary Magazine. Written by Robert Bork, the former Yale law school professor whose nomination to the Supreme Court in the Reagan-Bush era was turned back by a Democratic Congress ---- Bork, one of the most prominent critics of judicial activism --- it argues that the traditional balance between security and civil liberties has not been upset, usurped by the new Patriot Act and other anti-terrorist legislation and judicial decisions. Bork is always stimulating. Whether the article is fully convincing is another matter, though it is in line with Jeffrey Rosen's analysis just mentioned. See Commentary I'll see if there isn't some article available free somewhere on the Internet.


(v.) A point worth reiterating: economic vitality and big government.

Recall the economic claims set out in the blue-colored introduction at the outset here: specifically, there's a clear correlation found in econometric analysis between limited government spending on one side and per capita income growth and job-creation on the other: at any rate for the last 20 years. Recall too what we said there: not to worry, the buggy prof will return to these pivotal claims and the abundant evidence for them --- not to mention some extensive commentary --- later in this mini-series on US exceptionalism. Those visitors here full of pulsating eager-beaver curiosity to see the evidence, or at least some of it, right now could find no better starting point than this study: James Gwartney, Randall Holcombe, and Robert Lawson, "The Scope of Government and the Wealth of Nations". You can access it at this link.

None of this means that all government programs are bad or that markets can always substitute for government activism. It does mean that when the big welfare-state and regulatory-apparatus of the Continental EU countries soared after 1960 down to and through the 1990s --- with some retrenchment beginning in that decade --- the growth of GDP in these countries significantly slowed, as did their ability to create new jobs and hold back unemployment. There is some variation here: the last few years, Finland, Denmark, Sweden, and Holland --- all tiny countries (4 million population in the first two, 9 in Sweden, 15 in Holland) --- have pruned some of their worst regulations and spending habits, and have become more competitive. Simultaneously, they've also brought down unemployment. But then Ireland, following a strong free-market and pro-business set of policies starting in the 1980s, began growing at East-Asian astronomical rates, and leapt in per capita wealth; once the poorest practically of the EU countries, it is now the richest. Britain, following a similar set of policies, has clearly outdone Italy, France, and Germany the last two decades, and hundreds of thousands of young people from those countries have emigrated there in order to find jobs that are non-existent in their own countries.

Or take the US. Its big per capita income lead in 1950 was eroded by the faster growing EU countries and Japan --- follower countries, taking advantage of convergence catch-up growth processes, including huge export-led growth aimed at the US market --- to the point that by the late 1980s they had cut the lead down to about 85-90%. Since then, the EU average has fallen to below 65%; Germany, Italy, and France are about that level (Britain slightly higher), and Japan a tad higher still. The clear correlation here --- not the only cause, mind you; but an important one: US government spending between 1960 and 1996 increased only by about 20%, and virtually ceased expanding at all after 1980. By contrast, the Continental EU countries all kept spending like mad in the public sectors, averaging well over 60% average increases after 1960. Come to that, Japan's government also spent crazily too, not to mention its efforts through most of the 1990s to go on multiplying regulatory and protectionist policies that have piled up one market inefficiency after another, a monster-size mountain of them that, for over a dozen years now, has buried the hard-working, talented Japanese under its hulking weight.

All of which, to repeat, will be matters for the very near future --- hopefully, if all goes well, within a week.

Replies: 1 Comment

It is a nit, but is begging to be picked: Cromwell died of natural causes. His several year old body was disinterred, drawn, quartered and beheaded after the restoration in a flash of freaked-out devilish behavior by his victim's son.

Posted by Richard Heddleson @ 01/04/2004 07:14 PM PST