A federal appeals court ruled on Friday that Congress could not sue to enforce its subpoenas of executive branch officials, handing a major victory to President Trump and dealing a severe blow to the power of Congress to conduct oversight.
In a ruling that could have far-reaching consequences for executive branch secrecy powers long after Mr. Trump leaves office, a divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit dismissed a lawsuit brought by the House Judiciary Committee against Mr. Trump’s former White House counsel, Donald F. McGahn II.
On Mr. Trump’s instructions, Mr. McGahn defied a House subpoena seeking to force him to testify about Mr. Trump’s efforts to obstruct the Russia investigation. The House sued him, seeking a judicial order that he show up to testify, and won in district court in November.
But two of the three appeals court judges ruled on Friday that the Constitution gave the House no standing to file any such lawsuit in what they characterized as a political dispute with the executive branch. If their decision stands, its reasoning would shut the door to judicial recourse whenever a president directs a subordinate not to cooperate with congressional oversight investigations.
“The committee now seeks to invoke this court’s jurisdiction to enforce its subpoena,” wrote Judge Thomas B. Griffith. The Justice Department, “on behalf of McGahn, responds that Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.”
“We agree and dismiss this case,” he wrote.
From The Dual State: A Contribution to the Theory of Dictatorship by Ernst Fraenkel (1940):
More than 300 years ago a similar demand was made in England. King James I, in his famous message to the Star Chamber (June 20, 1616), declared that in political questions the decision rested with the Crown and not with the Courts.
“Encroach not upon the prerogative of the Crown. If there fall out a question that concerns my prerogative or mystery of State, deal not with it till you consult with the King or his Council or both; for they are transcendent matters . . . As for the absolute prerogative of the Crown, that is no subject for the tongue of a lawyer, nor is it lawful to be disputed. It is atheism and blasphemy to dispute what God can do . . . so it is presumption and high contempt in a subject to dispute what a King can do, or say that a King cannot do this or that.”
The straightforwardness of this message has scarcely been surpassed by any spokesman of the Third Reich. (36)
They were indignant and asked him, ‘Do you hear what they are saying?’ Jesus answered, ‘I do. Have you never read the text, “You have made children and babes at the breast sound your praise aloud”?’ – Matthew 21:15 – 16, REB
What haven’t I read this year? This year I never read Rhinoceros. I’ve thought about it — not about reading it, I mean.
But this year I read Matthew Fox’s account of reading Thomas Merton reading Rhinoceros. Within minutes of reading it, I ordered Merton‘s Raids of the Unspeakable. I have now read Thomas Merton reading Rhinoceros for myself.
They [the Samaritans] told the woman, ‘It is no longer because of what you said that we believe, for we have heard him ourselves.’ – John 4:42, REB
While we read John’s account of the Samaritans’ account.
Jesus wasn’t suggesting — he wasn’t even understood then and there, I don’t think, as suggesting – that his fellow rabbis had not read this or any the other texts he referred to. He was, though, implicitly challenging their notion of reading. Reading a book is no accomplishment, much less a credential.
Reading, in fact, may reduce me. In Bachelard’s poetics, for instance, “the joy of reading appears to be the reflection of the joy of writing, as though the reader were the writer’s ghost.”1 I’m becoming my authors’ mirrors.
Maybe my writers are like the Old Testament’s heroes of faith, of whom the writer of Hebrews says, “only with us should they reach perfection” (Hebrews 11:40, REB). Is that what they see in me, and is that why they published? Are they watching me now?
And have you never read If on a Winter’s Night a Traveler — the novelist Silas Flannery watching through a spyglass a woman in a deck chair who is, in turn, reading his book?
Paul’s best stuff, he said, were his readers: “you are our epistles, known and read of all men.” Many writers are busy revising me.
To feel how impossible it is to finish a book, one must be read at least as much as one reads. John Climacus taught me that: “When you find satisfaction or compunction in a certain word of your prayer, stop at that point.”
So while reading a book may not be an accomplishment, reading a book may also be no small accomplishment. As Flannery says, “it is only through the confining act of writing that the immensity of the nonwritten becomes legible.” But this nonwritten stays nonwritten. It surfaces only through “the uncertainties of spellings, the occasional lapses, oversights, unchecked leaps of the word and the pen.”2 Do you hear what they are saying?
If you’ve finished If on a Winter’s Night, of course, you never finished ten books.
I’ve never actually read Climacus. Henri Nouwen quotes him, though, in a short book on meditation that I’ve read a dozen times, the last a dozen years ago.3
I won’t list most of the books I read from this year. But here are the books that were bad enough for me to finish:
1 Samuel translated by Robert Alter
Imagined Communities: Reflections on the Origin and Spread of Nationalism by Benedict Anderson
Liberalism and Republicanism in the Historical Imagination by Joyce Appleby
The Life of the Mind by Hannah Arendt
On Revolution by Hannah Arendt (3rd & 4th readings)
Notes of a Native Son by James Baldwin (2nd reading)
Witness: Lessons from Elie Wiesel’s Classroom by Ariel Burger
The Modern Political Tradition: Hobbes to Habernas by Lawrence Cahoone (2nd) (lecture series)
Metahuman by Deepak Chopra
The Glamour of Grammar by Roy Peter Clark
Why Liberalism Failed by Patrick J. Deneen
Invisible Man by Ralph Ellison (3rd & 4th readings)
Absalom, Abaslom! by William Faulkner (3rd reading)
The Wild Palms by William Faulkner (2nd reading)
Churches in the Modern State by John Neville Figgis
Radical Prayer: Love in Action by Matthew Fox (lecture series)
Can Democracy Survive Global Capitalism? by Robert Kuttner
The Namesake by Jhumpa Lahiri (2nd & 3rd readings)
The Hebrew Republic: Jewish Sources and the Transformation of Western Political Thought by Eric Nelson
The Prince by Niccolio Machiavelli (2nd reading)
Desolation Island by Patrick O’Brian (5th reading)
The Fortune of War by Patrick O’Brian (5th reading)
H.M.S. Surprise by Patrick O’Brian (5th reading)
The Ionian Mission by Patrick O’Brian (5th reading)
The Maritius Command by Patrick O’Brian (5th reading)
Master and Commander by Patrick O’Brian (5th reading)
Post Captain by Patrick O’Brian (5th reading)
The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Centuryby J. G. A. Pocock
Emerson: The Mind on Fire by Robert D. Richardson, Jr.
The Divine Dance: The Trinity and Your Transformation by Richard Rohr
Courage to Grow: How Acton Academy Turns Learning Upside Down by Laura A. Sandefer
The Grammarians by Kathleen Schine
Hamlet by William Shakespeare (2nd reading)
Romeo and Juliet by William Shakespeare (37th reading)
The Crisis of the Middle-Class Constitution by Ganesh Sitaraman
Prayer and Worship by Douglas Steere (4th reading)
Mother Night by Kurt Vonnegut
Writing Across contexts: Transfer, Composition, and Sites of Writing by Kathleen Blake Yancey
Medical Medium: Liver Rescue by Anthony William
This coming year, I’ll be thinking about Rhinoceros a lot.
When people ask me for prayer, sometimes it bugs me. This morning, after years of my feeling this way, Meister Eckhart offers me an explanation:
People often say to me: “Pray for me!” Then I think: “Why do you go out of yourselves? Why don’t you stay within yourselves and grasp your own blessings? After all, you bear essentially all truth within yourselves.” (Sermon 14)
Just as Jesus refused to grant his generation’s request for a sign except to give them the sign of Jonah, so we might refuse someone’s request for prayer except to pray the prayer of Paul. Paul often describes his prayers for others in great detail. But those prayers don’t fix the future. And they don’t seem to happen when people ask him to pray. Here’s a sample:
For this reason I bow my knees before the Father, from whom every family in heaven and on earth derives its name, that He would grant you, according to the riches of His glory, to be strengthened with power through His Spirit in the inner man, so that Christ may dwell in your hearts through faith;and that you, being rooted and grounded in love, may be able to comprehend with all the saints what is the breadth and length and height and depth, and to know the love of Christ which surpasses knowledge, that you may be filled up to all the fullness of God. (Eph. 3:14-19)
Paul here prays that the Ephesians “may be able to comprehend” what’s already in them in God. This, I think, is true intercession. It is the prayer of Elisha – “open his eyes”:
And his servant said to him, “Alas, my master! What shall we do?” So he answered, “Do not fear, forthose who are with us are more than those who are with them.” Then Elisha prayed and said, “O LORD, I pray, open his eyes that he may see.” And the LORD opened the servant’s eyes and he saw; and behold, the mountain was full of horses and chariots of fire all around Elisha. (2 Kings 6:15-17)
A couple of observations about Elisha’s prayer:
Elisha doesn’t pray for something that’s not present. He prays that the servant would see what’s already present.
Elisha doesn’t pray because the servant asks for prayer. Indeed, the servant doesn’t ask for prayer but for direction. Elisha, however, gives no direction. Instead, he prays. Situationally triggered prayer seems to have a spontaneous, spirit-led aspect to it.
These two observations are joined. To see what’s already there is always to experience the spontaneous and unpredictable. In other words, to see what’s already there is to wake up, which is disorienting to the dreamer. This seeing or waking is spontaneous and unpredictable. As Deepak Chopra puts it, “let me underscore how extraordinary waking up is, and how unpredictable” (Metahuman, p. 155).
Elisha and Paul here point to true intercession, which is participating in the birth of what God has previously conceived, and not of what we have conceived or what has previously “entered into the heart of man.” When Paul intercedes in prayer, he sees himself as a mother with child: “My children, with whom I am again in labor until Christ is formed in you . . .” (Gal. 4:19). God’s prayer, really, is this birthing, this unpredictable “natality” (as Hannah Arendt puts it), this “waking up” (as Chopra puts it), this seeing (as Elisha and Jesus put it), as opposed to the mortality of dualistic, mechanistic thought and prayer. God’s prayer is life itself, a prayer “without ceasing.” Matthew Fox on Eckhart:
Living itself, so long as it is so deep that it is without a why or wherefore, becomes the ultimate prayer, the ultimate act of experiencing and giving birth to God. (Breakthrough)
Anything smaller than this prayer of giving birth to God amounts to looking for answers outside of ourselves. When Eckhart responds to people requesting prayer with “Why do you go outside of yourselves?”, Fox understands Eckhart to reject dualism:
This wayless way [of God] is also without a why, a wherefore, or a reason. From this spiritual foundation you ought to accomplish all your deeds without a reason. This doing away with goals for loving God extends to religious goals such as heaven or eternal happiness, however well intentioned, because to operate from such goals from outside oneself is to act out of dualism. It is to forget that heaven and eternal life are already here. It is to forget that we are already living the divine life. What kind of life is this divine life? How does God live? It is a life without a why. The life of God is “without a why.”
More Eckhart on “without a why”:
If anyone were to ask life over a thousand years, “Why are you alive?” the only reply could be: “I live so that I may live.” This happens because life lives from its own foundation and rises out of itself. Therefore it lives without a reason . . .
Dualism begins with the question, “why?”, which is a question rooted in fear and limitations. It pits heaven against earth. (As Chopra points out, this heaven-versus-nature dualism is shared by both today’s scientists and today’s religions.) Dualism strives to bring heaven to earth (huge, negative political ramifications), but Jesus said, “No one goes up to heaven except the one who comes down from heaven” (John 3:13). Or as Eckhart says, “Height and depth are the same thing.”
There is no “meaning of life.” There is only life. There is only, as Chopra puts it, “the sheer exuberance of creativity” (Metahuman, p. 199). How do our purposes in Christ fit into any grand scheme? I’ll die without knowing. Meanings, I think, are part of the clutter, space junk we strike when we start to fly. As Chopra also says, “Each of us was born into an interpreted world. Previous generations spent their lives giving everything a human meaning” (295). Those composite meanings help create the false world our ego enjoys, the “virtual reality” Chopra points out that we are born into.
But this birth, as well as the creativity inherent in our birth, is our answer to God’s prayer in us. Our birth challenges Chopra’s “virtual reality,” which is analogous to Hannah Arendt’s ruinous “automatic processes to which man is subject.” These processes, Arendt points out, “occupy by far the largest space in recorded history.” We can act against this pervasive falsity, but only if our actions are miracles (that is, only if they are expressions of our true selves). She explains:
Every act, seen from the perspective not of the agent but of the process in whose framework it occurs and whose automatism it interrupts, is a “miracle” – that is, something which could not be expected. If it is true that action and beginning are essentially the same, it follows that a capacity for performing miracles must likewise be within the range of human faculties. (Between Past and Future, pp. 167 – 168)
I don’t think Eckhart or Chopra would disagree with Arendt. Prayer is life because “action and beginning are essentially the same.” Miracles, Arendt writes, “always must be, namely, interruptions of some natural series of events, of some automatic process, in whose context they constitute the wholly unexpected.” That’s why, when Israel needs its biggest miracles, God doesn’t act the way we might expect but interrupts with a beginning – gives birth to a son or daughter (e.g., Moses, Jesus). It’s why Paul intercedes like a woman in labor until we become the Christ we already are.
In this kind of “praying always,” we are the unexpected answer to our own prayers.
A friend’s homely benediction last week: “Well, now that we’ve solved all the world’s problems . . .” It was perfect: all we had said had the force of cliches.
We “solve the world’s problems” because we sense we were made to tend our land together. But we have no civic plot to tend. So we talk politics with an open and informed impotence.
We are living out Tocqueville’s warning about a purely representational civic life:
By this system the people shake off their state of dependence just long enough to select their master, and then relapse into it again. . . . This rare and brief exercise of their free choice, however important it may be, will not prevent them from gradually losing the faculties of thinking, feeling, and acting for themselves . . .1
If citizenship amounts only to voting once a year and staying out of jail, then we’re in jail already, talking about how they should run things on the outside.
The news usually speaks of this enervation, but (applying something like Louise Rosenblatt’s transactional theory of reading) so does reading the news. And Matthew Fox:
Psychoanalyst Karen Horney defines masochism as “I can’tism.” Whenever we say “I can’t,” as in the expression, “I can’t be creative,” or, “I can’t change anything,” or “I can’t be mystical,” we are setting ourselves up for the sins of the sadist, who is always waiting to tell us, “You can’t, but I can.”2
America taught Hitler that need blurred into desire, and that desire arose from comparison. . . . Families observed other families: around the corner, but also, thanks to modern media, around the world. . . . “Through modern technology and the communication it enables,” wrote Hitler, “international relations between peoples have become so effortless and intimate that Europeans — often without realizing it — take the circumstances of American life as the benchmarks for their own lives.” Globalization led Hitler to the American dream. Behind every imaginary German racial warrior stood an imaginary German woman who wanted ever more. . . . Before the First World War, when Hitler was a young man, German colonial rhetoric had played on the double meaning of the word Wirtschaft: both a household and an economy. German women had been instructed to equate comfort and empire. And since comfort was always relative, the political justification for colonies was inexhaustible. (12 – 13)
– Timothy Snyder, Black Earth: The Holocaust as History and Warning (2015)
The trouble with Faulkner, says [Norman] Podhoretz, is that the Enlightenment has passed him by. “As far as Yoknapatawpha is concerned, the Enlightenment might just as well have never been.” This is one of the most comical remarks in all Faulkner criticism. Not only is it a prize understatement, but it serenely ignores the fact that it is precisely in the midst of the “enlightened” middle class world that we have not only Yoknapatawpha but Auschwitz, Hiroshima, the Vietnam War, Watts, South Africa, and a whole litany of some of the choicest atrocities in human history. . . . [An] artificially lucid, one-dimensional view of life, in which there is no place for madness or tragedy, will obviously fail to comprehend a Faulkner. . . . As Michael Foucault has pointed out, the refusal of madness, the clear delimitation of reason and madness, creates a demand for madness. Far from getting on as if the Enlightenment had never been, Yoknapatawpha was made necessary by the Enlightenment — and was necessary to it. Faulkner saw that the reason, justice, and humanity of the Enlightenment and the lunacy, injustice, and inhumanity of the South were in reality two aspects of the same thing. How many rapes, murders, lynchings occur in the little city called, so ironically, “Jefferson”?
– Thomas Merton, “Faulkner and His Critics” (1967) (Anthologized in The Literary Essays of Thomas Merton, pages 120 – 121. Emphasis original.)
In June of 1924, Mussolini was in trouble. Fascist thugs with ties to him had murdered Italy’s top Socialist parliamentarian, Giacomo Matteotti. The public assumed that Mussolini had ordered it, and Italy was in an uproar. Even conservatives were beginning to distinguish between nationalism, which they embraced, and the overthrow of democracy, which they weren’t prepared for. Mussolini’s opponents had caught him acting above the law. As David I. Kertzer puts it in his 2014 book The Pope and Mussolini: The Secret History of Pius XI and the Rise of Fascism in Europe, “The end of the regime seemed near” (1431).1
The regime had begun only two years earlier with the support of a vital constituency. Within days of becoming prime minister, Mussolini had taken immediate steps to make good on his promises to the church to restore its influence in Italian society. He had his new cabinet attend a Mass and ordered them to kneel (832).
Mussolini had followed up this symbolism with action:
He ordered crucifixes to be placed on the wall of every classroom in the country, then in all courtrooms and hospital rooms. He made it a crime to insult a priest or to speak disparagingly of the Catholic religion. He restored Catholic chaplains to military units; he offered priests and bishops more generous state allowances; and to the special delight of the Vatican, he required that the Catholic religion be taught in the elementary schools. (1058)
The Vatican was delighted. Having lost most battles in Italy’s decades-long culture war, the church in 1924 “had no particular fondness for democratic government” (1091). It had political reasons for overlooking Mussolini’s unsavory past, his previous association with the left, and his obvious ignorance of religion. The Vatican secretary of state, Cardinal Pietro Gasparri, admitted with a chuckle that “Mussolini thought all Catholic holidays fell on Sundays” (1035).
Gasparri called Mussolini a “great character.” Mussolini was a colorful character, anyway: unlike his predecessors in office, Mussolini held frequent, entertaining rallies with his political base as if he were perpetually running for office. He often denied what most people before his day called reality, understanding that “people were ruled most of all by emotion, and that their reality had less to do with the external world than with the symbolic one he could fashion for them” (1250). Having watched Mussolini’s rise and his early days in office, Gasparri concluded that “Providence makes use of strange instruments to bring good fortune to Italy” (1035).
A month after Mussolini’s crisis began, the Italian church gave him its full support. The Pope published an article in the Vatican newspaper denying Mussolini’s involvement and directing Christians to avoid even legal means of dismissing Mussolini. If Mussolini were removed, the Pope warned, the political left would rise, and the church was incapable of making an alliance with the left (1454).
The Pope’s article, along with a subsequent speech the Pope gave that complemented his article (1466), was a political tonic for Mussolini. He survived his crisis, and by January of the following year, he was publicly taking full, triumphant responsibility for Matteotti‘s murder as well as other recent violence:
If all the violence was the result of a particular historical, political, and moral climate, then I take responsibility for it, because I created this historical, political, and moral climate. . . . Italy, sirs, wants peace, wants tranquility, wants calm. We will give it this tranquility, this calm through love if possible, and with force, if it becomes necessary.
The inference in Mussolini’s admission, of course, was that his political survival was more important to Italy than the rule of law. Kertzer calls this speech before parliament that month “the most dramatic speech of his career.” After the speech, Kertzer writes, “the Fascist assault on the last vestiges of democracy in Italy began” (1501).
When a nation’s church looks for a political solution to its spiritual crisis, God may come to that church in the guise of Pontius Pilate. Who will it be, Pilate asks his politically minded visitors, Jesus or Barabbas? God seems to have asked the Italian church a similar question: a republic or a tyranny? The church’s choice became its nation’s fate.
Numbers in parentheses are location numbers within The Pope and Mussolini‘s Kindle version. ↩
I first read about private equity firms in Robert Kuttner’s book, published last year, Can Democracy Survive Global Capitalism?:
Invariably, a private-equity takeover means an even deeper squeeze on worker wages, benefits, and job security. The truly nefarious aspect of the private-equity business model is that windfall profits are typically extracted in advance, so that when the actual operating company falters, the equity partners experience very little loss, if any. The model turns on its head the usual incentives to operate a business prudently and to view workers as long-term assets. Private-equity partners accomplish this trick by borrowing heavily against a newly acquired company, paying themselves an exorbitant “special dividend,” as well as management fees, that together typically far exceed the actual equity they have invested in the company. Then then move to aggressively cut costs. If they succeed, they often sell the stripped-down company to someone else. if they cut too deeply, they’ve already made their fortune up front, and they can use bankruptcy either to shut down the operation or to shed its debts and restructure it.
As an example, Kuttner gives Bain Capital’s takeover of KB Toys in 2000. Bain sent KB into bankruptcy, shedding 10,000 jobs but raking in a 360 percent gain on its investment.1
If you want some background for most of Warren’s policies, read Kuttner’s book as well as Ganesh Sitaraman’s 2017 book The Crisis of the Middle-Class Constitution. Sitaraman, the book’s back flap reports, is a law professor as well as Warren’s former policy director and senior counsel. It was Middle-Class Constitution that tipped me off to Warren’s republican roots.
By “republican roots,” I don’t mean that Warren was a Republican, though she was. And by “republican” (lower-case “r”), I don’t refer to a party but to someone who supports a republican form of government, as opposed particularly to a monarchy. The republican-monarchist debate was big in England during the seventeenth century and big here around the time of our revolution. We should debate it anew: our president wants a monarchy, and he’s trying to tear down what’s left of republicanism.
England’s seventeenth century brought the republican theorist behind Sitaraman’s title. James Harrington’s 1656 book Commonwealth of Oceana describes what Sitaraman calls a “middle-class constitution.” Harrington’s idea is based on the balanced constitution of Aristotle and Polybius — the one, the few, and the many — except that the balance isn’t simply the short-term avoidance of the ancients’ frequent civil wars between the haves (“the few” in the ancient constitutions) and the have-nots (“the many”). His insight was the constitutional potential inherent in the “middle people” (our middle class) who were unknown to the ancients.
Harrington had two principal insights, according to Sitaraman. First, “If inequality between rich and poor created strife, relative economic equality should eliminate internal conflicts, create a stable government, and guarantee freedom.” Political freedom, as Hannah Arendt points out in On Revolution, was the express purpose of both the American and French revolutions. Both revolutions started with liberation from monarchy, but only the American one ended with what would be a longstanding republican constitution. The French Revolution was taken over by the destitute, and the purpose of the revolution’s “relative economic equality” wasn’t to guarantee freedom but to guarantee bread.
The success of the American Revolution relative to the French one would not have surprised Harrington. The economic inequality in France fed the revolution, but in the long run it starved freedom. Napoleon was as much of an absolute ruler as Louis XVI before him.
Warren’s policies don’t set out to create a revolution in the French tradition or otherwise, but to restore us to our current revolution, which began in 1776. Her economic policies have a political end (“political” still in the larger sense: republican vs. monarchical government) — republican freedom.2
Harrington’s second insight, Sitaraman continues, was that “if the balance of property changed, the political system would change as well.” We’ve lived through Harrington’s insight in reverse since the mid-1970s: our middle class has shrunk and the rich have gotten far richer; consequently, we’ve become (as Jimmy Carter pointed out) an oligarchy. Our political system has changed for the worse.
Harrington’s plan for addressing the economic inequities of his day was enacting agrarian laws, which would cap real estate ownership by annual yields and end primogeniture in favor of equal distribution to the children of large fortunes.3 Our situation is too complicated to be addressed by agrarian laws, as Warren’s plan today attests.
Before Harrington and the Hebrew Revival that influenced him, republican theory concerning property was much like today’s classical liberal theory: defend property rights with almost no exceptions. But Harrington’s then-new republican theory, which came as the threat of a republican form of government was being realized in England, changed republican orthodoxy. Harvard Professor Eric Nelson points out Harrington’s influence on Montesquieu’s and Jefferson’s views on the limits of private ownership:
It is a measure of Harrington’s extraordinary influence that, from 1660 onwards, agrarian laws would remain permanently at the center of republican political thought. Writers from Montesquieu to Rousseau, and from Jefferson to Tocqueville, would regard it as axiomatic that republics ought to legislate limits on private ownership in order to realize a particular vision of civic life.4
Montesquieu explicitly states his fear that economic inequality would sink a republic: “Inequality would enter at the point not protected by the laws, and the republic will be lost.”5 Sitaraman summarizes Montesquieu’s proposed solutions:
The answer Montesquieu suggested, was to “regulate to this end dowries, gifts, inheritances, testaments, in sum, all the kinds of contracts.” Passing on wealth to others in an unregulated fashion would “disturb the disposition of the fundamental laws.” After a long discussion of innovative methods for regulating the transfers and concentration of wealth, Montesquieu recognized a practical reality: “Although in a democracy real equality is the soul of the state, still this equality is so difficult to establish that an extreme precision in this regard would not always be suitable.” He therefore suggested establishing outer bounds of wealth and then passing laws that will “equalize inequalities” thorough “burdens they impose on the rich and the relief they afford to the poor.”6
A mid-1880s letter from Jefferson to Madison addresses the mass unemployment Jefferson was observing in France at the time. Here’s the more theoretical part of the letter:
I am conscious that an equal division of property is impracticable. But the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind. The descent of property of every kind therefore to all the children, or to all the brothers and sisters, or other relations in equal degree is a politic measure, and a practicable one. Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions of property in geometrical progression as they rise. Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labour and live on. If, for the encouragement of industry we allow it to be appropriated, we must take care that other employment be furnished to those excluded from the appropriation. If we do not the fundamental right to labour the earth returns to the unemployed. It is too soon yet in our country to say that every man who cannot find employment but who can find uncultivated land, shall be at liberty to cultivate it, paying a moderate rent. But it is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.
Jefferson here seems to propose the end of primogeniture with regard to inheritance, an indexed property tax rate, and the grant of small parcels of land. But he leaves a qualified door open for other ideas (“legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind”), and he says that the unemployment of those who wish to be employed is a sign that “the laws of property have been so far extended as to violate natural right.”
Jefferson’s concern for what America could do to avoid the kind of economic disparity he saw on the streets of Paris should be ours, too. It’s certainly Warren’s concern. Her concern for economic fairness, I believe, is not borne chiefly out of compassion but out of statesmanship.
Our heritage of Atlantic republicanism, therefore, has always been anchored in an awareness of how economic disparity can undermine a republic. Republicans who fail to share that concern are republicans in name only.
Robert Kuttner, Can Democracy Survive Global Capitalism?, at 111. ↩
Ganesh Sitaraman, The Crisis of the Middle-Class Constitution, at 53 – 55. ↩
Eric Nelson, The Hebrew Republic: Jewish Sources and the Transformation of European Political Thought, at 79. ↩