Professional Documents
Culture Documents
RESHAPING GLOBAL HEALTH MARK DYBUL, PETER PIOT, & JULIO FRENK RATIONING BY ANY OTHER NAME AMITAI ETZIONI A MUSLIM WORLD FULL OF SURPRISES ARTICLES BY NICHOLAS EBERSTADT & APOORVA SHAH, CAMILLE PECASTAING, LUDGER K HNHARDT FORTY YEARS OF ORIGINALISM JOEL ALICEA
ALSO: REVIEWS BY PETER BERKOWITZ, MARSHALL POE, KURT R. LEUBE, PAUL KENGOR, HENRIK BERING
A P u b l i c at i o n o f t h e H o ov e r I n s t i t u t i o n
s ta n f o r d u n i v e rs i t y
POLICY Review
J UNE & J ULY 2012, No. 173
Features
3 RESHAPING GLOBAL HEALTH Time for a structural and philosophical shift Mark Dybul, Peter Piot, & Julio Frenk 19 RATIONING BY ANY OTHER NAME Reasons for resisting the push to limit medical care Amitai Etzioni 29 FERTILITY DECLINE IN THE MUSLIM WORLD A demographic sea change goes largely unnoticed Nicholas Eberstadt & Apoorva Shah 45 THE MANY FACES OF ISLAMIST POLITICKING Learning to govern after the Arab Spring Camille Pecastaing 57 THE RESILIENCE OF ARAB MONARCHY How hereditary rulers should respond to popular pressure Ludger Khnhardt 69 FORTY YEARS OF ORIGINALISM The development and future of a judicial philosophy Joel Alicea
Books
81 READING INTO THE CONSTITUTION Peter Berkowitz on Living Originalism by Jack M. Balkin 88 SHABBY SOVIET REALITY Marshall Poe on Red Plenty by Francis Spufford 94 BUSINESS ETHICS, SHARPENED Kurt R. Leube on Business Ethics and the Austrian Tradition in Economics by Hardy Bouillon 98 FALLING FROM GRACE Paul Kengor on The Man in the Middle: An Inside Account of Faith and Politics in the George W. Bush Era by Timothy S. Goeglein 104 BEING BISMARCK Henrik Bering on Bismarck: A Life by Jonathan Steinberg
A P u b l i c at i o n o f t h e H o ov e r I n s t i t u t i o n
s ta n f o r d u n i v e rs i t y
POLI CY Review
Ju n e & Ju ly 2 0 1 2 , N o . 1 7 3
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ovement along the arc of development has been propelled by new worldviews and the creation of institutions to respond to them. In the 19th and 20th centuries, development efforts evolved from colonial expansion to missionary zeal, the aftermath of two world wars, the Cold War, economic self-interest, and postcolonial guilt. Numerous private and public organizations were created to respond to shifting demands, including multilateral and bilateral organizations wholly or partially dedicated to global health.
Mark Dybul is a distinguished scholar and co-director of the Global Health Law Program and the inaugural global health fellow at the George W. Bush Institute. Peter Piot directs the London School of Hygiene and Tropical Medicine. Julio Frenk is the dean of the Harvard School of Public Health. The authors acknowledge and are enormously grateful for the significant contributions of Gordon Brown and are deeply thankful to Eugenia Pyntikova for her expert editing and research.
June & July 2012 3 Policy Review
ignificant advances in disease-specific programs have saved and improved many millions of lives and have definitively shattered the paternalistic and pernicious myth that low- and middle-income countries are not capable of designing and implementing national programs to tackle complex health issues, including chronic disease management. Disease-specific programs have also revealed important problems, including disparities and inadequacies in health systems, the crucial role of sectors beyond the health sector for improving health, and the inefficient and duplicative use of resources in the financing and implementation of global health. The renewed discussion of the importance of health systems is possible because of disease-specific programs, not despite them. In a paradoxical way, the rapid expansion and success of disease-specific programs has made clear the need to move beyond them. At the base of the health care pyramid, in villages and communities around the world, it makes little sense to define health by reference to a specific disease. A mosquito is equally content to make a meal of an hiv-positive or an hiv-negative person. A child whose mothers life is first saved by antiretroviral therapy or sleeping under a bed net but is then lost while she gives birth is no more likely to survive or go to school than the child whose mother dies from hiv or malaria and, of course, the woman and her community are no better off. Without immunizations, other health care, and nutrition in the first months of life, a newborn is increasingly exposed to infections that can lead to stymied physical and emotional growth or death. As the child grows without clean water, diarrheal diseases pose the greatest threat to survival. As children reach adolescence and adulthood, they and their offspring enter into the same cycles of health risk that demonstrate the need for integrated health systems. In fact, because high levels of multiple diseases and health threats in the same locale create a forum of competing risks, interventions to save ones life from a single disease or health threat could increase the probability that the person will die from another disease or threat that is prevalent in the same environment. For example, when a maternal death is averted, that same woman is now exposed to the risk of developing cervical or breast cancer. Such realities should never be a pretext for inaction, and disease specific programs have been important in the evolution of global health. But as we look to the future, focus on the health of a person requires ever-expanding integration. Silos in health not only make little sense to local providers, they make little sense to policymakers. Although significant investments in disease-specif6 Policy Review
t has often been said that if the World Health Organization did not exist it would have to be created. But it likely would not be created with its current structure and function. The who is essential to set global standards and to perform key surveillance and monitoring functions, as well as evaluation for accountability. Over the past decades, driven in part by the demands of funders, the who has ventured into extensive implementation and other areas beyond its original mission and core competencies. A symptom of what is wrong with the current institutional architecture of global health is the paradox that, at a time of financial expansion around disease-specific programs, there is severe underfunding of the knowledgerelated global public goods that are essential for improving health outcomes. The current financial crisis at the who provides an opportunity to redirect its structure and function to focus on its core strengths and the value it adds to global health. No other institution can provide global standards, surveillance, and accountability. Many other organizations can and do provide excellent technical support and program implementation, though. Unfortunately, austerity measures seem to be cutting across the board rather than protecting core competencies. A consideration of governance structures of the who, including the autonomy of the regional offices and changes that would allow for greater engagement of nonhealth stakeholders to maximize its key convening authority, could strengthen the institution. With a view to a more rational global architecture for health, the whos fiscal challenges could be an opportunity for a more rational approach to global health governance while ensuring its preeminence among global health institutions, whose roles should also be reviewed.
s delegates convened at a hotel in Bretton Woods, New Hampshire, in 1944, it was clear that the existing global finance governance mechanisms were too divided and chaotic to cope with the world economic situation. As we emerge from a decade of rapid expansion in global health that began with the conceptual foundations for a new era in development and approach the post-mdg era, now is the time for a Bretton Woodsstyled consensus to create a new architecture for the governance of global health. It is as clear today as it was in 1944 that existing structures were created for a different time and that a 21st-century approach to global health requires a radical restructuring of 20th-century institutions to support coherent, country-owned, national health strategies that engage all sectors in design and implementation; that begin with the health of people to design integrated systems for public good in an accountable and transparent way; that balance human rights with pragmatism and shared responsibility; and that are underpinned by innovative approaches to finance ultimately leading to an orderly transition of funding towards national mechanisms driven by economic growth. The investments being made are not being maximized. Bringing coherence and direction to the institutional structure of global health could radically improve investment outcomes and propel global heath from a 20th- to a 21st-century approach. Governments, civil society organizations, and the private sector all have a key role to play in designing a new global health architecture and sustainable financing. A critical first step is to rationalize the tangled web of global health through principal financiers separated from technical support organizations and with a leading stewardship role for the who. This radical vision can be achieved only with the leadership of an expanded g20 which includes more low income countries and the active participation of other emerging economic powers and middle- and low-income countries. A bold restructuring of global health architecture could establish models and lessons learned for other areas of development. A focus on the health of a person could provide insights for a post-mdg era that focuses on creating the opportunities needed for every human being to realize his or her full potential. That is an audacious vision, but the recent history of global health and a long history of great human achievements teach us that what seems impossible can be done. The only question that remains is: Will it be done?
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ewspapers and magazines do not usually regurgitate ideas that have been bandied about for decades, especially when they are replayed one more time by the same leading author. Hence, it is telling that the New Republic republished in mid-2011 the brief by Daniel Callahan (this time co-authored with Sherwin Nuland). The authors call for a ceasefire in Americas war against death, arguing that those who surrender gracefully to death may die earlier than [is now common], but they will die better deaths. They urge the medical profession and ultimately, the American people to undergo a cultural shift they argue is necessary to prevent the otherwise inevitable financial failure of our health care system. This shift will replace a medical culture of cure with a culture of care. They note that rationing and
Amitai Etzioni is director of the Institute for Communitarian Policy Studies at George Washington University. He is indebted to Courtney Kennedy for research assistance on this article.
June & July 2012 19 Policy Review
Amitai Etzioni
limit-setting will be necessary to bring about this change. Callahan and Nuland point to evidence that little progress has been made in our quest for cures for chronic diseases (like Alzheimers) or will likely be made in our efforts to significantly extend our life expectancy. Given the marginal benefit and high cost of medical advancements, they argue that we need to invest much more of our limited funds in preventive, affordable care, rather than in strenuous efforts to wring a few more years out of life. Focusing on care for the elderly, the authors call on us to abandon the traditional open-ended model (which assumes medical advances will continue unabated) in favor of more realistic priorities namely, reducing early death and improving the quality of life for everyone. They further advocate age-based prioritization, giving the highest priority to children and the lowest to those over 80. Callahan and Callahan sometimes comes across as though he Nuland call on advocates providing only palliative care to those who, as summarized by Beth Baker in her 2009 us to abandon interview with Callahan, have lived a reasonably the traditional full life of, say, 70 to 80 years, offering them high quality long-term care, home care, rehabilitation open-ended and income support, but not extraordinary and model of expensive medical procedures. That is, we should medical care. ration health care for our elders, granting them mainly ameliorative care rather than vainly seeking to cure the unyielding chronic illnesses that plague them. In other texts, his argument is more hedged. However, he tends to hold that quality of life is more important than length of life, especially given that the last years of our lives are miserable, as our minds wander, and we are beleaguered by incurable diseases. Otherwise, our futile battle against death may doom most of us . . . [to an end] . . . with our declining bodies falling apart as they always have but devilishly and expensively stretching out the suffering and decay. They hence determine that the cutoff point, the age at which we should put our elderly on ice, is 80. As we shall see shortly, whether one reads Callahans statements as stark or as more nuanced, his argument faces the same basic challenges. Daniel Callahan is the co-founder of a premier bioethics research institution, the Hastings Center. It has played a major role in the development of bioethics in the United States, and indeed the world. (Callahans co-author, Sherwin Nuland, was a practicing surgeon for 30 years and has authored several books on life, death, and medicine.) However, this essay (as well as previous writings by Callahan on the same subject) is neither a work of scholarship nor of policy analysis but of political advocacy. It employs emotive terms, rhetorical devices, and vague formulas to advance a cause. Thus, the New Republic article recommends that seniors be granted a primary care period, which at first blush sounds much less troubling than to argue that elder Americans will be provided only palliative care. However, on sec20 Policy Review
Amitai Etzioni
regard to chronic diseases, a major counterexample can be found in the very significant improvements in the treatment of diabetes in recent years. In short, even if it is true that the pace of progress in medical care is slowing, it is by no means nearly as unproductive as the authors maintain. And the value of the achievable should not be dismissed because it does not meet some elusive dream; it should be appreciated because of the good that it is delivering.
ne of the major findings of the research on health care costs is that Americans use up more medical resources in the last year of their life than in any other previous years. For instance, findings from the 199296 Medicare Beneficiary Survey indicated that mean annual medical expenditures . . . for persons aged 65 and older were $37,581 during the last year of life versus $7,365 for nonterminal years. These and other such statistics seem at first blush to provide strong support for the Callahan thesis. However, at a second glance, one notes that many of these statistics apply to all last years of life whether that of premature babies too small to make it, a young person with advanced cancer or aids, or that of select senior citizens. The relevant criteria is not age but rather the likelihood that a person can be cured, or at least restored to a meaningful life, able to love and serve, and whether his or her end is near. To put it differently, Callahan makes it sound as though as soon as the body turns 80, there is an abrupt change in our medical condition. The opposite is true: Our bodies gradually change, both before and after that age, and at a different pace for different people. Much of what Callahan is talking about holds for the last months, maybe year, of life, not for those who simply had 80 candles on their birthday cake. And as the average lifespan has been extended by eight to nine years since 1960, many of these years for many of those older than 80 were far from miserable. If ration we must, we should limit care for all those who have a terminal illness and medically determined short time to live whatever their age. Callahan claims that Americans (i.e., all of us) seek immortality, are unwilling to face death, and believe in the ability to extend life forever and a day. Actually, the caring professions have developed and society has embraced a way to proceed, which is not based on age. Namely, once a person is determined, typically by a physician, to have no more than six months to live, they are referred to a hospice (whatever their age), and there they get the Callahan treatment ameliorative rather than therapeutic care. Moreover, the fact that millions of Americans write living wills and many ask to sign do-not-revive orders shows that Americans can and do deal with end of life issues. Closely related is the question of what constitutes a worthy or productive
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Slippery slopes
evisiting these ideas now ought to be subject to particularly close scrutiny, because they are republished in the context of alarm about rising deficits and mushrooming health care costs. Hence, this kind of writing is likely to be used as ammunition by those who want to reduce public support for health care in general and for the elderly in particular. One ought to note that the fact that we are squeezed for funds can be used to justify rationing health care, and to insist that now we simply must limit those above a certain age to receiving mainly or only ameliorative rather than therapeutic care. It logically follows like a hangover after a night of boozing that the cut-off age should be lowered if our economic condition further deteriorates. Once we set such a limit and accept the cultural shift Callahan and Nuland call for, one that treats age-based rationing as morally justifiable, it is simple to show that, on average, those who are, say, 77 to 80, produce less and have greater care costs than those who are younger. But then we can likewise say that about those who are somewhere between 72 and 77, between 65 and 72, and so on. And if other countries are to follow such a model, they will surely have to set a lower age. Fifty-five for El Salvador, and 43 for Afghanistan? The possibility that using age-based rationing to ratchet down care will lead to troubling outcomes is far from mere speculation. For example, reports have indicated that in Britain, people older than 50 have been discouraged from seeking kidney dialysis treatment.
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Moreover, it is essential to note that the concept of quality of life is a particularly slippery one. Once we cease to respect life per se and cherish only life of good quality, we truly open the door to defining which lives deserve to be saved and which do not, especially in hard economic times. One may say that we are very short of resources, and hence must resort to rationing. However, this should be considered only if there are no other places to reduce health care costs places where cost-cutting can be much more readily justified. And as I will show shortly, there is a surprisingly long list.
No assured reallocation
nother major weakness of Callahans thesis is that it is based either on a complete misunderstanding of the way the American polity works or an unwillingness to face what it would take to introduce a regime of the sort Callahan advocates. Callahan first off treats health care as if it were a hermetically sealed, discrete political and economic system. In this Never Never Land, if fewer funds are allotted to elderly care, ipso facto, more will be available for child care and for younger people in general. This assumption ignores that elder care is largely publically financed, while younger care is not. Hence, if tomorrow the government collects, say, $100 billion less in tax revenue from Americans to pay for Medicare, there is no reason to assume that these dollars will be employed for preventive care, youth care, or for any other form of health care. And even if the funds remain within the public sector, it does not follow that reducing the Medicare outlays will not flow to some other expenditure, from ethanol subsidies to paying for the bombing of Libya, or to food stamps or raises for civil servants or God knows what else. Some of these are worthy goals, but one should ask not only if they outrank helping the elderly to make even relatively small but high-cost health gains, but also what mechanism could be developed to ensure that whatever is cut from senior care will end up where it is supposed to land. One of Callahans great merits is that as a fellow communitarian, he recognizes that we have obligations to the common good and not just rights and entitlements. (The issue was raised recently when neither Presidents Bush nor Obama called on Americans to make any sacrifices in the wake of 9/11 and the wars in which the U.S. is engaged.) However, before I would call on anyone to give up any beneficial medical interventions they seek, I would ask them if save we must to smoke less, drive less, and give up on status goods, among many other things. And in contrast to those who see our seniors as privileged and our youth as deprived, I see most seniors as having made lifelong contributions to society, while the youths turn has yet to come. Even if the cuts have to be made within the health care system, there are other ways to proceed.
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Other ways
o argue against age-based rationing and the navet of reallocation is not to suggest that the cost of Medicare or, more precisely, of health care should not be reduced. However, there are other ways which a normative analysis suggests should be considered long before one turns to reductions in therapeutic care for seniors and, more generally, to cutbacks in medical research and investment in new technologies. If we must make cuts in Medicare, we ought first to make far more strides in reducing harmful activities. There are an estimated 44,000 to 98,000 preventable deaths due to medical error each year, according to the 1999 U.S. Institute of Medicine report To Err is Human. While the report has been highly regarded and frequently cited over the past decade, a 2009 Centers for Disease Control and Prevention study found that 99,000 patients succumb to hospital-acquired infections annually. Experts hold that nearly all of those deaths are preventable. Study after study shows that even relatively small changes can reap major benefits. These include measures such as getting health personnel to cut their fingernails shorter, wash their hands even more often, use typed rather than handwritten drug prescriptions, use electrical shavers rather than razors (in preparations for surgery), getting doctors to pay more mind to comments by nurses, and so on. The results are detailed in Safe Patients, Smart Hospitals, a book co-authored by Peter Pronovost and Eric Vohr, which advocates integrating strictly followed checklists into health care procedures, as well as abandoning the hierarchical structure of hospitals that often leaves nurses hesitant to challenge doctors when they make mistakes. The book then shows the great reductions in medical errors that follow the introduction of checklists. Atul Gawande, a Harvard Medical School surgical professor, similarly argues for systematic checklists, offering numerous examples of greater success due to checklists, not only in the medical field but also in fields like aviation, a comparison that John Nance makes extensive use of in his book Why Hospitals Should Fly. According to the Office of Management and Budget, aligning Medicares drug payment policies with Medicaids policies would save $135 billion over ten years. Next, we should cut reimbursements for those interventions for which there are no demonstrated benefits. Twenty percent of all medical expenditures were estimated to pay for medical care that is inappropriate and unnecessary, according to a 1990 study by the rand Corporation. Consistent with these findings, Henry Aaron, a leading expert at Brookings, noted that both 2008 presidential candidates put forward proposals for curtailing waste in the U.S. health care system . . . based on estimates that various medical procedures are used inappropriately as much as one third of the time in the United States. Among them are testing patients who have
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advanced, life-threatening illnesses for other diseases for which preventable treatment could not be provided in the time they have left on this earth, and screening for colon cancer, which, according to many experts, is inadvisable for the elderly, as it can result in complications that outweigh the potential benefits. Again, it is unlikely that waste will be completely eradicated, but surely significant strides could be made. And this particular opportunity for cost reduction and improved efficiency has been recognized by Obamas Affordable Care Act, which establishes an advisory board specifically tasked with identifying and recommending policies to eliminate such waste in the Medicare program. Equally important is to reduce administrative costs. The United States spends at least twice as much on administrative costs for health care as many other countries. For instance, a 2003 comparative study found that U.S. administrative costs amounted to $30 out of every $100 spent on health care, compared to $17 in Canada. There are many reasons we cannot match Canadas ways, but if we cut only part of the difference in administrative overhead, we would save tens of billions each year. One way this may be achieved is by using capitation, rather than reviewing every intervention. Another option is to follow the uk Tory governments example and pursue what is called the Big Society program. It allots a pool of funds to the physicians serving a given area and lets them make the allocation decisions within nationally established guidelines. A study by the Commonwealth Fund found that if U.S. administrative costs could be reduced to merely the same level as the average for countries with mixed public-private insurance systems, $55 billion per year would be saved. Some experts snicker when people argue that one can achieve major savings by reducing fraud and abuse. 60 Minutes, though, has documented how the Medicare fraud industry in South Florida is now larger than the cocaine industry, due to the relative ease of swindling Medicare. There is less risk of exposure and less risk of punishment if caught. Crooks buy patient lists and bill the government for expensive items, ranging from scooters to prostheses, to the tune of some $60 billion a year. Because Medicare is required by law to pay all bills within 30 days and has a small accounting staff, it often cannot vet claims before the checks must be issued. By the time Medicare authorities find out a storefronts bills are phony, the crooks have closed their operation and opened one next door under a different name. It does not seem too difficult to imagine that Medicare could be given more time and more resources to reduce such fraud. In a series of articles on health care costs published in the New York Times in late 2011, Ezekiel Emanuel, M.D., Ph.D., suggests a number of ways to cut costs in the health care industry. He proposes implementing electronic health records and streamlining the billing process, which could save $32 billion per year, with twenty percent of that savings going to the government. He also suggests that $80 billion could be saved each year if chronically ill patients can be encouraged to use high touch medicine, a system of
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Amitai Etzioni
tion pass from simply being unfair, wrong-headed, or dangerous in some way or other, to being immoral? . . . Ad hominem arguments combined with slippery slope predictions have become the accepted rhetorical style of conservative opponents of communitarian, social justice convictions. Nothing is added, and much that is harmful is introduced into the public debate by the word immoral. My own observation is that neither liberals (a.k.a. progressives) nor conservatives have a monopoly on morality. That our communitarian crowd favors a strong social safety net is a tribute to our wise (even if politically controversial) judgment about the common good, not a sign of superior morality.
Callahans comments show that even a bioethics giant, and a fellow communitarian, can make a mistake, and not a trivial one. Sadly he is not alone in adopting a culturally relativistic definition of what is moral. And hence, of course, when there is no consensus, there are no moral standards and we are told there is nothing on which to base our moral judgments. As I see it, there is a limited set of universal moral truths human rights, for instance. Life and health over death and illness in all but exceptional circumstances, for example. These truths are, as the founding fathers put it so well, self-evident. (As a deontologist would put it, these are moral causes that speak to us directly.) In the subject at hand, I need no community to approve a standard that will inform me, if one has a choice between saving money by cutting reimbursement for beneficial procedures, say kidney dialysis, or cutting the funds that pay doctors who run two cts on the same patient on the same day or blowing money because insurers refuse to use the same claim form, which is the moral direction to go. It may not be politically practical, but there is no question what is right. (And the fact that one may find some very limited conditions under which the suggested statement will not hold just shows that some philosophers are sharp, not that we lack foundations for moral judgments.) Callahan correctly points out that I use normative arguments for a political purpose. All political acts and decisions have a moral dimension, and if we do not judge, it will not stop others from laying moral claims, just mute our side. Moreover, is this bad? I am trying to shame and lose votes for those who pass immoral laws that provide obscene profits to health insurers and exorbitant salaries for their executives while cutting funds for health care for poor children and many more such policies. I stand content to be judged accordingly. Callahan truly crosses a line when he jumps from my position that some people make immoral choices to argue that they must be bad people (his non sequitur), and therefore accuses me of ad hominem attacks. As I see it there are some bad people, those who have no moral conscience, the psychopaths. Most people struggle between their debased and nobler sides, and I am out to give whatever support I can to their better angels.
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T
June & July 2012
here remains a widely perceived notion still commonly held within intellectual, academic, and policy circles in the West and elsewhere that Muslim societies are especially resistant to embarking upon the path of demographic and familial change that has transformed population profiles in Europe, North America, and other more developed areas (un terminology). But such notions speak to a bygone era; they are utterly uninformed by the important new demographic realities that reflect todays life patterns within the Arab world, and the greater Islamic world as well. Throughout the Ummah, or worldwide Muslim community, fertility levels are falling dramatically for countries and subnational populations and
Nicholas Eberstadt holds the Henry Wendt chair in political economy at the American Enterprise Institute, where Apoorva Shah served as research fellow. They would like to offer thanks to Kelly Matush of AEI for her assistance in preparing this paper, and also to Heesu Kim, Mark Seraydarian, and Daksha Shakya, Mauro De Lorenzo, and Philip I. Levy for their help and suggestions.
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here is some inescapable imprecision to any estimates of the size and distribution of the Ummah an uncertainty that turns in part on questions about the current size of some Muslim majority areas (e.g., Afghanistan, where as one U.S. official country study puts it, no comprehensive census based upon systematically sound methods has ever been taken), and in part on the intrinsic difficulty of determining the depth of a nominal believers religious faith, but more centrally on the crucial fact that many government statistical authorities do not collect information on the religious profession of their national populations. For example: While the United States maintains one of the worlds most extensive and developed national statistical systems, the American government expressly forbids the U.S. Census Bureau from surveying the American public about religious affiliation; the same is true in much of the eu, in the Russian Federation, and in other parts of the more developed regions with otherwise advanced data-gathering capabilities. Nevertheless, on the basis of local population census returns that do cover religion, demographic and health survey (dhs) reports where religious preference is included, and other allied data-sources, it is possible to piece together a reasonably accurate impression of the current size and distribution of the worlds Muslim population. Two separate efforts to estimate the size and spread of the Ummah result in reasonably consistent pictures of the current worldwide Muslim demography profile. The first, prepared by Todd M. Johnson of Gordon-Conwell Theological Seminary under the aegis of the World Christian Database, comes up with an estimate of 1.42 billion Muslims worldwide for the year 2005; by that reckoning, Muslims would account for about 22 percent of total world population. The second, prepared by a team of researchers for the Pew Forum on Religion and Public Life, placed the total global Muslim
1. Two works in particular may be saluted in this regard: Youssef Courbage and Emmanuel Todds A Convergence of Civilizations: The Transformation of Muslim Societies Around The World (Columbia University Press, 2011), and David P. Goldmans How Civilizations Die (And Why Islam Is Dying Too) (Regnery, 2011). The former is a translation of a 2007 study by two noted French demographers; the latter, a wide-ranging and provocative exposition by an American public intellectual. Neither work has to date received the readership it deserves.
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wasareas as a whole was -41 percent over these three decades: by any historical benchmark, an exceptionally rapid tempo of sustained fertility decline. In aggregate, the proportional decline in fertility for Muslim-majority areas was again greater than for the world as a whole over that same period (-33 percent) or for the less-developed regions as whole (-34 percent). Fully 22 Muslim-majority countries and territories were estimated to have undergone fertility declines of 50 percent or more during those three decades ten of them by 60 percent or more. For both Iran and the Maldives, the declines in total fertility rates over those 30 years were estimated to exceed 70 percent. Given the differences in timing for the onset of sustained fertility declines in different settings around the world, it is possible for the above statistics to present a biased picture. It is possible to imagine, for example, that dramatic fertility declines might have taken place in other regions at earlier dates, with fertility declines tapering off during these years when the declines in the Muslim-majority areas were so manifestly dynamic: If that were the case, it would be possible to exaggerate the robustness of these Islamic fertility declines in comparison to other parts of the world. Yet while this is a theoretical possibility, empirical results do not corroborate such a contingency. Table 1 makes the point. Based on unpds estimates and projections of fertility patterns for all countries and territories for the entirety of the postwar era (1950 to 2010), it isolates the top ten fertility declines, as meaJune & July 2012 33
Oman Maldives Kuwait Iran (Islamic Republic of) Singapore Algeria Mongolia Libyan Arab Jamahiriya Viet Nam Mauritius
Source: Population Division of the Department of Economic and Social Affairs of the United Nations Secretariat, World Population Prospects: The 2010 Revision, available at http://esa.un.org/ unpd/wpp/unpp/panel_population.htm (accessed November 16, 2011)
As may be seen in Table 1, six of the ten largest absolute declines in fertility for a two-decade period yet recorded in the postwar era (and by extension, we may suppose, ever to take place under orderly conditions in human history) have occurred in Muslim-majority countries. The four very largest of these absolute declines, furthermore, all happened in Muslim-majority countries each of these entailing a decline of over 4.5 births per woman in just 20 years. (The world record-breaker here, Oman, is estimated to have seen its tfr fall by over 5.3 births per woman over just the last two decades: a drop of over 2.6 births per woman per decade.) Notably, four of the ten greatest fertility declines ever recorded in a 20-year period took place in the Arab world (Algeria, Libya, Kuwait, and Oman); adding in Iran, we see that five of these top ten unfolded in the greater Middle East. No other region of the world not highly dynamic Southeast Asia, or even rapidly modernizing East Asia comes close to this showing. When ranking the top ten historical fertility declines during any 20-year period by country in terms of proportional rather than absolute drops in tfrs, only four of the top ten fertility drops to date have occurred in Muslim-majority countries and only two of the top four were Muslimmajority areas (Iran and the Maldives islands). What may be especially note34 Policy Review
Socioeconomic trends
ow is the extraordinary demographic transformation described here to be accounted for? Typically, demographers and other social scientists in our era attempt to explain fertility changes in terms of the socioeconomic trends that drive (or at least accompany) them. We can presume to examine some of the correspondences between socioeconomic trends and fertility change through analysis at the national level for Muslim-majority states, given the wealth of national-level socioeconomic statistics that have been collected by government statistical authorities, the United Nations, the World Bank, and other agencies and institutions. We know, of course, that the 48 Muslim-majority countries and territories for which the unpd provides demographic estimates encompass a rich diverJune & July 2012 37
in a methodologically sound and rigorous manner, as the aforementioned Pritchett study observed and as Pritchett himself argued, methodologically sound investigations seemed to suggest that the demographic impact of family planning programs tended to be marginal. Preliminary analysis of more recent dhs surveys would seem to corroborate Pritchetts findings. In reviewing the correspondence in recent dhs surveys between excess fertility (defined here as the difference between actual fertility levels and reported levels of desired fertility) and the prevalence of modern contraceptive use, we find no observable correspondence whatsoever between these two factors. Socioeconomic forces, to be sure, may well affect the desired family sizes that women of childbearing ages report in these dhs surveys in fact they surely do. But the critical determinant of actual fertility levels in Muslim and non-Muslim societies alike at the end of the day would appear to be attitudinal and volitional, rather than material and mechanistic. How do the various factors mentioned thus far interact in influencing fertility levels in Muslim-majority countries? We may get a sense of this complex interplay from the hints offered by an initial multivariate analysis of international fertility difference reported in recent dhs surveys. The first regression equation in Figure 3 attempts to predict fertility levels in 41 Muslim and non-Muslim less-developed countries on the basis of per capita income, literacy rates, prevalence of modern contraceptive use, and
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Sources: Angus Maddison, Per Capita gdp ppp (in 1990 Geary-Khamis dollars), Historical Statistics for the World Economy: 1-2008 ad, table 3, available at http://www.ggdc.net/maddison/; measure dhs stat compiler, available at http://www.measuredhs.com (accessed March 30, 2009)
The second equation adds an additional factor to the regression for predicting fertility levels: a dummy variable for Muslim-majority population. Introducing this variable changes the results in an intriguing way: Now per capita income loses its statistical significance (if barely) so that only desired fertility retains its statistical significance out of the original four independent variables from the first equation. But the dummy variable for Muslimmajority in this second equation is statistically significant: And perhaps sur40 Policy Review
e have made the empirical case here that a sea change in fertility levels, and by extension, in attendant patterns of family formation, is now underway in the Islamic world even if this sea-change remains curiously unrecognized and undiscussed even in the societies it is so rapidly transforming. Why this should be the case is an important question, but one that will not detain us here. Instead, we shall conclude by touching a few of the more obvious implications of these big demographic changes for the years ahead.
Downward revision of population projections. In its 2000 revisions of World Population Prospects, unpd medium variant projections envisioned a population for Yemen of 102 million people; in its 2010 revisions, the 2050 medium variant projection for Yemen is 62 million (uscb projections for Yemen for 2050 as of this writing are even lower: under 48 million). Unanticipated but extremely rapid fertility declines would likewise militate for downward revisions in the trajectory of future demographic growth in other Muslim-majority areas. Coming declines in working-age (15-64 ) population. If the current prospect for Muslim-majority countries and territories entails coping with the challenges of finding employment for continuing and even increasing increments of working age manpower, in the foreseeable future an increasing number of Muslim-majority countries may face the prospect of coping with manpower declines. If current uscb projections prove accurate, Lebanons fifteen to 64 cohort would peak in the 2023 and would shrink more or less indefinitely thereafter. On the trajectories traced out by current uscb projections, another thirteen Muslim-majority countries would also see their conventionally defined working-age populations peak, and begin to decline, before 2050.3 Over the past generation, we should remember, demographic authorities for the most part underestimated the pace and scale of fertility decline in Muslim regions sometimes very seriously. If underestima-
3 . These countries are Algeria, Azerbaijan, Indonesia, Iran, Kazakhstan, the Maldives, Morocco, Qatar, Tunisia, Turkey, Turkmenistan, the United Arab Emirates, and Uzbekistan.
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uch has been made of the recent success of Islamist parties in national elections that followed the Arab Spring. While some praise Islamism as the first genuine expression of popular sovereignty in a long time, others warn of an Islamic winter. They read Islamist candidates as a fifth column for a fundamentalist theocracy, or at best for an illiberal democracy where individual liberties suffer under the overbearing presence of religion in the public sphere. Both readings are wrong because history is not yet written, and the Islamists know no better than anyone where their recent success might take them. And while their ascent appears almost universal they are now in government in many Arab countries their accession to the highest levels of power has been contextual. Starting from common origins, they followed different routes to get there. More than anything, what they showed over the decades in the wilderness was pragmatism and adaptability to challenging environments, characteristics that they will have to
Camille Pecastaing is the author of Jihad in the Arabian Sea, and contributor to the Hoover Institutions working group on Islamism and the International Order.
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draw upon to move from the conquest to the exercise of power in the postArab Spring era. The constraints imposed on Islamists were not just the authoritarian regimes that suppressed them, and the downfall of the autocrats will not hand over a quiescent society to the supporters of sharia. The temptation of doctrinal social engineering may exist, but the actual impact Islamists will have will be limited by the kind of society they inhabit, the resources they have to work from, and the choices forced upon them. The challenges are numerous. They have to maintain decent diplomatic relations with a West deeply suspicious of fundamentalist agendas. They have to prevent a smoldering culture war between minorities and liberals on one hand, and the socially ultraconservative Salafis on the other, from The Arab Spring tearing apart the social fabric. And they have to address daunting socioeconomic issues inherited has brought on from decades of inadequate developmental models, compounded by a youth bulge that cannot find procalls for a new economic order, ductive employment. Many observers have missed the leftist, populist for a rupture core of the Arab Spring. Worriers dread Khomeini with a capitalism and bin Laden when they should be looking for Nasser or Hugo Chavez. Protesters demanded seen as Western democracy: elections not intended as an end but as a and exploitative. vehicle for transparency and accountability, for the eradication of corruption and nepotism. There are demands for jobs and higher wages and income redistribution, and feminist demands starting with wage equality for women. There are also calls for a new economic order, for a rupture with a capitalism seen as Western and exploitative, as an economic system uniquely designed to benefit the elites. In the confusion of the new era, the Islamic green blurs with the socialist red, as the religion carries the calls for justice and equity that were once a staple of the left. This affords Islamists a wide scope of populist claims that rake in the votes. But conceptual contradictions will be hard to reconcile over the long term after Islamists get to rule. Mainstream Islamists convey the economically liberal instincts of a socially conservative mercantile class. They are anchored in the global economy, which really means they want to preserve foreign economic aid and especially trade relations with the European Union. Equally daunting is the looming culture wars between the Salafis and the leftists, feminists, and religious minorities. The Salafis are reactionary social vigilantes whose ranks spawned a militant minority known to the world as jihadis. The Salafis have often winked at the violence of the jihadis, as both share revolutionary aspirations, but unlike their brethren engaged in armed struggle, Salafis generally eschew the political for the ethical. They preach and outbid each other in virtuous signaling, intruding in the public space but not trying to take it over. With the Arab Spring, the public space became
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century, it really got going in the 1930s, the heyday of communism and fascism. Islamism imbibed the reactionary zeal of Western nationalism along with its antithesis: the revolutionary passion of Western socialism. It saw itself as a transnational conservative revolution aimed at recreating a global Ummah (Muslim community) ruled by sharia. From its Western peers, Islamism also learned that it could not rely on ideological appeal only. The quest for power demanded structures and institutions that are material rather than spiritual affairs. There are costs, and people to be fed, demands to be accommodated. Long-term development requires efficient and accountable management, responsiveness to the needs of members, and ultimately solvency. Early on, Islamists left the field of ideology and moved into institutionalization.
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Saddam Husseins aggression became addictive for the regime, and when that war ended Tehran artificially maintained the pressure with a game of cat and mouse with the United States. Irans nuclear program and the occasional seizure of weapon shipments from Iran to neighboring militias opposed to American designs are reminders that, for all its fiduciary shortcomings, this is a middle income country with enough of a surplus to meddle in regional affairs. Then again, Tehrans real contribution to the treasury of movements like the Lebanese Hezbollah and the Palestinian Hamas is anybodys guess, and it is the treasury that matters. Hezbollah took control of the Lebanese government in the summer of 2011, and Hamas has alone run Gaza since 2007. It is well known that they did not get there on the basis of ideological seduction only, but by spending The idea that big spenders big money on their constituents, which got them elected. Both provide an array of social services like Hamas and schools, clinics, counseling, employment in security forces to populations grossly neglected by offiHezbollah cial authorities and exposed to the devastation of could ever be wars those two movements are paradoxically financially self- accused of having provoked. If it is easy to understand the material appeal of Hamas and Hezbollah, sufficient defies it is more arduous to follow the money trail that the imagination. made their success possible. There is a degree of tithing, of semi-extortion from the local business class, and foreign remittances. In a September 2010 interview with Thanassis Cambanis, Mahmoud Komati, the deputy chief of Hezbollahs politburo, admitted that while his movement hoped to develop independent revenue streams, it had not reached 50 percent self-sufficiency yet. Iranian aid is openly acknowledged by Hezbollah. It is a cash operation. Given the tight blockade of the Gaza Strip, Tehrans support of Hamas is more complicated. Syria, an Iranian ally, harbors Hamas-in-exile, but Damascus is far from Gaza. Official foreign aid to Gaza has been restricted since Hamas took over, specifically to prevent the blacklisted Islamist movement from diverting those funds. Nevertheless, the imf has reported a double-digit growth rate for Hamas-run Gaza, twice that of the West Bank a high growth figure which has to do with postwar reconstruction. Hamass financial resilience is puzzling given the stunted and introverted nature of the economy of Palestine, where a first-rate business consists of bottling sodas for the local market. The main exports of Palestine are not goods but emotions, and foreign aid and remittances are almost the exclusive sources of financial inflows. The money the vastly unemployed population of Gaza receives from abroad has fed traffic in the tunnels under the border with Egypt, allowing Hamas to skim off and redistribute revenues through its social works. Sara Roy, who closely studied Islamic charities in Gaza, is discrete about sources of funding: She points to donations from the community.
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ited on the Afghan population is directly related to their financial autonomy, all the more impactful that Afghanistan is so poor and their opponents, a ragtag assemblage of warlords, are themselves so brutal and corrupt. Running for office has been a constant ambition for many Islamist movements, for that was the natural route to power and money. Political parties were spun off from social works whenever the regimes allowed it, which was an infrequent occurrence. In Turkey, a strong military core garbed since the 1950s by a constrained democracy kept communists and Islamists at bay. But Islamists patiently built a political machine, fed by the contributions of rural migrants and emigrants disenfranchised by a fragmented party system dominated by fickle and corrupt elites. Following a financial collapse that shook the establishment, the Islamist ak party was Running for elected to power in 2002, and has since defanged the office has been military and crushed the secular opposition. With a public debt at 50 percent of gdp, and a structural a constant budget deficit, the Islamists in power have been anything but frugal. But they have sustained a strong ambition for rate of growth, reaping the benefits of genuine libermany Islamist alizing reforms started in the 1980s. Hardball playmovements, for ers in a merciless democratic game, they have used the courts to harass critics and competitors, all the that was the while using public spending and patronage to satisfy natural route their constituents. It is hard to see a transition of power there unless a large scandal or an economic to power. bust brings them down to earth. In Egypt, the Muslim Brotherhood has been severely repressed since the mid-1940s, and particularly so under the regime of Abdel Nasser in the 1950s. An arrangement of sorts was reached after the military defeat of June 1967, and the Brotherhood was allowed to operate in the social sphere as long as it did not engage in politics. If members ran in parliamentary elections, it was as unaffiliated candidates, and they never competed for all the seats. But Egyptian society was allowed to become more religious, the regime sometimes winking at the reactionary judgments of sharia courts. The Brotherhood was useful for the military regime. First, its social activities palliated the lack of state welfare, whether in rural Upper Egypt or in the slums of Cairos overgrowth. Second, it lived on the same turf as the traditional left, eating away at the communists. Third, the ubiquitous socialminded Islamists of the Brotherhood were lumped together with the jihadis who had challenged the state militarily in the 1990s and presented to the West as a pretext to maintain military rule. Few in the West believed that the Brotherhood was al-Qaeda, but few dared to test that hypothesis either. This relationship of convenience between the officers and the Islamists carried until the Arab Spring forced the army to jettison Mubarak and to revisit the terms of their arrangement with the Brotherhood. In the immature political landscape of postArab Spring
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Up from repression
ther regimes never tolerated Islamists, bringing to bear against them the full force of authoritarianism. In Baathist Syria, the city of Hama was shelled by artillery in 1982 following years of unrest from the local Muslim Brotherhood. In Tunisia, leaders of Ennahda, an Islamist party that professed nonviolence, were sentenced to death and spent years in prison. For two decades, under President Ben Ali, the police monitored
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mosque attendance, and too observant young men could be arrested and detained for extended periods. In Qaddafis Libya, almost 1,300 prisoners, mostly Islamists, were reportedly massacred following a 1996 riot in Tripolis Abu Salim prison. Islamists who escaped the repression of those regimes were forced into exile, some in London, where they reconciled their ideology with liberalism, others in Afghanistan, where they connected with the mujahedeen milieu from which al-Qaeda emerged. This scorched-earth legacy makes the Islamist resurgence in Syria, Libya, and Tunisia the great surprise of the Arab Spring. In Libya, the Islamist current remains ill-defined. Qaddafi was killed by a mob chanting Allah Akbar the same hymn that accompanied the hanging of Saddam Hussein but such sentiments do The most not reveal a focused political agenda. Abdelhakim Belhadj, a former mujahedeen arrested in Bangkok striking rebirth in 2004 and rendered to Qaddafis jails, famously took place in led a rebel unit in the conquest of Tripoli. But Belhadj went out of his way to explain that his days Tunisia, where Islamist Ennahda as a jihadi were over. In Syria, the protest movement issued from the Arab Spring, and brutally repressed inherited a by Assads security forces, has struggled to escape a Sunni sectarian character, despite insistent appeals to revolution in minorities. In the first few months, the Syrian which it didnt Muslim Brotherhood morphed from a skeleton of exiles to a front for the rebellion within the newlyparticipate. formed Syrian National Council, a shadow government in exile. But the longer the civil war drags on in Syria, the more diverse the breeds of Islamists who find there a terrain to thrive, including old-fashioned jihadis. The most striking rebirth took place in Tunisia, where Islamist Ennahda inherited a revolution in which it did not participate. The aftermaths of revolutions are volatile periods, with fragile regimes hijacked by radical, authoritarian factions: the French Jacobins, the Russian Bolsheviks, the Iranian Komitehs. In Tunisia, the soul-searching, post-revolutionary phase saw the formation of an abundance of new parties. During those months, the historical leader of Ennahda, Rashid al-Ghannushi, returned from London and mobilized local supporters and donors. Rumors of funding from conservative Arabia were belied by the strict monitoring of the electoral agency. The Islamists were funded by local businessmen, like Nejib Gharbi, a wholesaler and spokesman of the movement. Their natural constituency was the hinterland, bypassed by the two decades of economic growth, and its unemployed or underpaid children amassed in the suburbs of the rich coastal cities. Their long suffering at the hands of the despised regime also appealed to the coastal middle class, which they courted by claiming as their own the more liberal, progressive culture familiar to the Tunisian bourgeoisie. The verdict of the October elections was unequivocal: The government was theirs.
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rule hardly skipped a beat through all of it. In Saudi Arabia, the welfare tap was turned up. The revolution passed them by. Monarchy is no panacea: Bahrains was saved by foreign military intervention, and Jordans horizons remain clouded. But the Arab juntas, with their tired revolutionary (Algeria, Libya) and military (Egypt, Syria, Yemen) rhetoric, faltered. The abundance of natural resources was not even a factor: Libya had a greater endowment per capita than Saudi Arabia, but the lazy regimes that relied on rents of all kinds to maintain a debilitating status quo were wiped out one after another.
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evolutions are not mechanical processes of social engineering. They unfold as an intrinsically unpredictable flow of events. Structurally, revolutions will go through phases, often through contradictory periods. Hardly any revolution will evolve without turbulences and phases of consolidation. And revolutions do not happen without moments of stagnation, surprising advancement, and unexpected transformation. The beginning of the Arab Spring in 2011 has not been of a different nature. It started as a fundamental surprise to most, took different turns in different countries, and was far from over by the end of 2011. Transatlantic partners are fully aware of the stark differences among Arab countries. They realize the genuine nature of each nations struggle for democracy. Yet, they are inclined to take the Western experience with democracy as the key benchmark for judging current progress in the Arab world. The constitutional promise of the U.S. or the success of the peaceful revolutions in Eastern and Central Europe in 1989 and 1990 are inspiring, but one must be cautious in applying them to the Arab Spring. Preconditions have to be taken into account. Beside, the
Ludger Khnhardt is director of the Center for European Integration Studies (zei) at Bonn University.
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history of Europes 19th and 20th century also suggest room for failure in the process of moving toward rule of law and participatory democracy. Some cynics have already suggested that the Arab Spring could be followed by an Arab autumn or even winter. Even if one discards such visions as inappropriate self-fulfilling prophecy, certain European experiences should probably not be forgotten: In the 1830s, Germany experienced its own Spring toward pluralism and democracy called Vormrz. That German spring movement (Sturm und Drang) was essentially a cultural uprising without the follow-up of transformational political change. In 1848, across Europe, revolutionary upheavals promoted the hope for an early parliamentary constitutionalism across the continent. In most places, this hope was soon to be replaced by variants of a restrictive consolidation of the ancient For the time, regimes. In 1989, the experience of Romania deviatthe Arab Spring ed strongly from most of the peaceful revolutions across Europe. Ousting and even killing the former has evolved dictator was a camouflage for the old regime to preinto the prelude vail for almost another decade. While the rest of of revolutionary Central and South Eastern Europe struggled with regime change and renewal, Romania prolonged transformation regime atrophy and resistance to renewal. For the time being, the Arab Spring has evolved that will go on for many years. into the prelude of a revolutionary transformation that will go on, most likely for many more years to come. The Prague Spring of 1968, in the former Czechoslovakia, comes to mind: It was welcomed with euphoria in the West and in secrecy by many citizens under communist rule in the east of Europe. Yet, it turned out to be just the beginning of a transformative period in the communist world. It took another two decades before a substantial change of the political order in most communist states came about. The Prague Spring was the spring of a generation, not the spring of a year. No matter what direction the Arab Spring may take in the years ahead, two trends are startling: First, the Arab Spring has initiated a wide range of different reactions and trends around the Arab world. The homogenous Arab world is a myth. Likewise, the notion that Arab societies are permanently stagnant and immobile is a myth. The quest for dignity, voice, and inclusion under rule of law, and a true structure of social pluralism, has been the signature of peaceful protest all over the Arab world. The reactions of incumbent regimes have demonstrated a variety of strategies but also different levels of strength, legitimacy, and criminal energy. Second, and more surprising, is the relative resilience of the Arab monarchies to the Arab Spring: Morocco and Jordan, Saudi Arabia and Oman, Kuwait and the United Arab Emirates, and Qatar and Bahrain have been reasonably unaffected and remain stable (in spite of the temporary clashes in Bahrain and their oppression with the help of Saudi Arabias army). While the quest for dignity, voice,
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gious or moral-based authority, the historical record of monarchies confronted with the pressure for change is mixed. Reference to traditional religious sources of legitimacy has not, in the past, been enough for some monarchies to survive the winds of change with which their societies were confronted. While going beyond this perspective, several insights into the nature of hereditary systems have stood the test of societal change. They are pertinent and may be a useful mirror to keep in mind as the future path of hereditary rule in the Arab world unfolds.
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and Spain took place cannot repeat itself in todays Arab world. Arab transformation will continue down its own contingent path, which will likely be one that doesnt follow Western expectations and aspirations.
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These kind of feudal ligatures are not able to generate private initiative that goes beyond sustaining the ruling elites. In the end, in a hereditary political system as much as in any other republican democracy, only a stable middle class based on education and vocational training can guarantee long-term stability. This also happens to be the case in practically all Arab societies today.
Transatlantic partners
he arab spring has opened a new chapter in the political history of the Arab world. The outcome is far from predictable. It may vary from country to country and it may drag on with different speeds and intensity for years, if not decades. It began thanks to the courage of nonviolent people who wanted to revitalize their societies on the basis of dignity, freedom, and justice. In a geopolitical context, the historic opportunity the Arab Spring represents will, at least, lead to two fundamental reconfigurations: On the one hand, the traditional prejudice according to which Africa is divided between North Africa and Sub-Saharan Africa will end. The issue of overcoming personal rule and introducing constitutional change aimed at enabling law-based pluralistic democracy is as pertinent in most of SubSaharan Africa as it is in the Arab world. In both regions the issue reflects the deficits of postcolonial politics. Hence, the Arab Spring has been watched with great intensity in Sub-Saharan Africa with enthusiasm among young people and with worry among some of the petrified postcolonial elites (in Uganda, for example). In the years to come, one might predict, the Arab Spring will repeat itself in several sub-Saharan societies. There, it will most likely bring about the same mixed picture of success, stagnation, and failure we see in the Arab world. Thus, it will support the trend (and the need) for a differentiated perception of Africa. Instead of continuously and erroneously imagining Africa as one, the long-term constitutional effect of the Arab Spring will help distinguish between an emerging Africa of successful political transformation beyond the postcolonial era, and a stagnating Africa that remains trapped in postcolonial structures of personal rule and patrimonialism. On the other hand, transatlantic partners will have to redefine their strategies toward the Arab world. Neither policies of fear and stereotypes based on distorted notions of identity nor attitudes of benevolent paternalism will help to redefine American and European relations with the Arab societies and their emerging new political structures. Transatlantic partners need to engage the Arab world and eventually Africa, too in a comprehensive agenda of transformation. As for the transatlantic partners the United States and the European Union it will be necessary to move beyond the traditional security para64 Policy Review
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underwent only gradual transformation. As for the future of Arab monarchies, the West might end up with both hereditary rulers and Islamic governments. Formulating a reasonable and positive strategy to cope with such situations is urgent. In the end, from a Western point of view, the current opening of the Arab political space should be seen as a golden opportunity. The United States and the European Union would be well-advised to define a joint strategy for future engagement with the Arab world. The strategys formative ideas should be transformation and legitimacy, its long-term objectives stability and partnership, and its driving instruments geared at promoting civil society and the private sector. In the global past, some monarchies went through stages of transformation that stretched over cenThe spirit of turies. The hereditary rulers in the Arab world may the Arab Spring not have so much time. What was truly new about the events of 2011 is the spirit of the Arab Spring: is truly new. It the self-empowerment of Arab societies, bringing has brought back dignity and hope to frustrated and marginalback dignity and ized societies, enabling millions of citizens to act as proud, self-confident, and open partners of their hope to millions neighbors. This might only be the first step in a long, vexed journey. Currently, the main focus among of frustrated transatlantic partners is on the future of Arab citizens. republics, which are torn between the most extreme possible scenarios. Some may think that Arab monarchies will be the last to reform and hence can be neglected. There are good reasons to argue for the opposite. Unreformed Arab monarchies could undermine any progress currently made in Arab republics. But reformed, transformed, and consolidated Arab monarchies could become reliable agents for change and legitimacy in a renewed Arab world. In this context, even the future of regional groupings in the Arab world has become an open issue. When Saudi Arabia invited Morocco and Jordan to join the Gulf Cooperation Council, the other gcc partners were not amused. No matter how realistic this perspective in the end may be, it certainly indicates that Saudi Arabia is prepared to strengthen Arab monarchies at the expense of cohesion and deepened integration in the Gulf region. While Morocco and Jordan are engaged in a new phase of advanced internal reforms, the Saudi offer was rather understood as a means to curb and curtail reforms that may challenge the existing structure of power in Morocco and Jordan. A realistic assessment cannot exclude new periods of stagnation and resistance to change in certain Arab monarchies. Skeptics point to the financial support from Saudi Arabia for the more traditional, if not extremist, part of the Islamic movement in Egypt and say its an indication of reactionary potential, both in revolutionary Arab republics as well as in nonreformist
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n the immediate aftermath of his 2010 election as the newest senator from Utah, Mike Lee spoke before a crowd of enthusiastic practitioners, scholars, and students at the Federalist Society National Lawyers Convention. Senator Lee focused on the role of Congress in constitutional interpretation, and he ended his remarks with the following pledge: I will not vote for a single piece of legislation that I cant reconcile with the text and the original understanding of the U.S. Constitution. The senators statement rejected the idea that the Supreme Court is the only relevant constitutional interpreter in the federal system and struck at the heart of the living Constitution, the notion that the original meaning of the Constitution is not binding on todays government officials. By requiring adherence to the original meaning of the constitutional text, Senator Lee sided with originalism. The late scholar Gary Leedes once complained that while originalists ask the federal judiciary to be originalist, they permit the electorally accountable officials substantial leeway. The Congress can interpret the tenth amendment and the necessary and
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proper clause virtually as it pleases. Senator Lees speech represents a forceful reply to Leedess challenge: Congress must be originalist, too. The senators pledge highlights a remarkable fact about American constitutionalism today: Only a generation removed from the constitutional revisions of the Warren and Burger Courts, originalism has not only established itself as a respectable interpretive theory in the federal judiciary, but it has also been taken up by some members of Congress. Even a major-party presidential candidate, Newt Gingrich, has pledged that as president he would interpret the Constitution using originalism. Such a state of affairs was unthinkable decades ago when, as Judge Robert Bork characterized the conventional wisdom of the era, lawyers came to expect that the nature of the Constitution [would] change, often quite dramatically, as the personnel of the Supreme Court change[d]. But it was precisely because of an article by then-Professor Bork that so much has changed and that Senator Lees pledge was possible. Borks 1971 article in the Indiana Law Journal, Neutral Principles and Some First Amendment Problems, is widely recognized as having launched modern originalist theory. While Professor Noah Feldman has underlined the role Justice Hugo Black played in the development of modern originalism, it was not until Borks article in 1971 that the modern originalist movement took flight. Thus, having just passed the 40th anniversary of that landmark essay, it is appropriate that we survey how modern originalism began, how it has changed, and what challenges lie ahead.
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through of his essay was his tripartite notion of neutral derivation, definition, and application. According to Bork, the problem with past attempts to fashion neutral principles was that the focus had been entirely on neutrally applying the principles essentially prizing consistency across cases. Bork argued that these efforts did not go far enough. Using Griswold v. Connecticut, the 1965 Warren Court decision often thought to have found a general constitutional right to privacy, Bork attempted to show that it is equally important to define principles with sufficient precision that they become capable of neutral application. But if the Court defines the principle however it pleases, this is just as illegitimate as applying a principle in inconsistent ways, since the definition will necessarily embody the justices value choices rather than the peoples. How a principle is defined, then, must also be accomplished in a neuIt was Raoul tral fashion. Berger who, with While this commentary on Griswold would on its own probably have been enough to get Bork into the possible hot water in his 1987 confirmation hearings, he exception of went further and questioned the very idea of a conBlack, made the stitutional right to privacy. Having already argued that the right to privacy embodied in Griswold was first foray into neither neutrally defined nor capable of neutral the practice application, Bork stated that the derivation of a privacy right was utterly specious. Bork saw no of modern general right to privacy in the Constitution: When originalism. the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh . . . respective claims. But how are principles to be neutrally derived? Bork offered two possible methods. First, principles can be derived by taking from the Constitution rather specific values that text or history show the framers actually to have intended and which are capable of being translated into principled rules. Second, some principles are derivative rights i.e., rights that will lead [a citizen] to defend them in court and thereby preserve the governmental process from legislative or executive deformation. By this latter category, Bork seems to have had in mind rights that are instrumentally valuable to a societys functioning or to the protection of fundamental rights, but he never explicitly defined what he meant. For our purposes, it is Borks first method of neutral derivation that is most important: the original intent of the Framers. Bork was right when he said that Neutral Principles and Some First Amendment Problems did not set forth a comprehensive theory of constitutional interpretation. Its purpose was to identify the shortcomings of the Warren Courts jurisprudence in an effort to show the need for a new interpretive framework, one based on neutral principles. All of this work was necessary to clear the way for modern originalism, and Bork offered the original intentions of the Framers as the
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Originalism in transition
he story of how originalism developed over the next 40 years is well known among scholars. Professor Richard Kay has called it the standard story about the originalist approach to constitutional interpretation. Johnathan ONeills Originalism in American Law and Politics is an ambitious attempt at a comprehensive retelling, but it is Professor Keith Whittingtons essay The New Originalism that has been most important in recent years. A few years after Bork published Neutral Principles and Some First Amendment Problems, Justice William Rehnquist delivered a lecture called The Notion of a Living Constitution. The lecture reinforced Borks critique of the Warren Court as illegitimate. Rehnquists argument, like Borks, was grounded in the idea of popular sovereignty: The people are the ultimate source of authority; they have parceled out the authority that originally resided entirely with them by adopting the original Constitution and by later amending it. For the Court to modernize the Constitution rather than stick to its limitations was therefore a usurpation of the popular sovereign. Borks clarion call had been answered by a member of the Supreme Court. However, it was Professor Raoul Berger who, with the possible exception of Justice Black, made the first foray into the actual practice of modern originalism. His consequential 1977 book Government by Judiciary made the explosive claim that the Supreme Courts 1954 decision in Brown v. Board of Education was irreconcilable with the original intent of the Fourteenth Amendment. Berger, like Bork and Rehnquist, grounded his theory in popular sovereignty and used sentences descended from Neutral Principles, such as Bergers claim that the Constitution represents fundamental choices that have been made by the people, and the task of the Courts is to effectuJune & July 2012 73
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ate them . . . When the judiciary substitutes its own value choices for those of the people it subverts the Constitution by usurpation of power. In the process of developing his historical analysis, Berger ventured a few answers to the questions raised by Borks 1971 article. For instance, Berger defined original intent as shorthand for the meaning attached by the Framers to the words they employed in the Constitution and its Amendments. All of this went a long way toward showing originalisms staying power. It was becoming clear that originalism was no speed bump on the way to a second era of living constitutionalism. As scholars began to grapple with this reality, the intellectual assault on originalism began in earnest. The first body blow came from Professor Paul Brest, who in 1980 pointed out what became known In the mid-1980s, as the summing problem. Brest argued that there may be instances where a framer had a determinate Attorney intent but other adopters had no intent or an indeGeneral Edwin terminate intent. If different Framers had different intentions, how could there be a single, homogenous Meese began original intent? And even if such an intent could publicly pushing be found, how could scholars know the contours of it? This latter question related to levels of generality. originalism in Assuming for the sake of argument that the a series of Founders only intended to protect political speech with the Free Speech Clause the position adopted lectures and by Bork in Neutral Principles how broadly did articles. the Founders define political speech? Originalists were starting to confront difficult theoretical and conceptual dilemmas. The next serious challenge came from Professor H. Jefferson Powell, who argued that the original intent of the Framers was that the Constitution should not be interpreted using original intent. If originalism was based on how the Framers thought about the Constitution, then perhaps the correct originalist interpretation of the Constitution was to use nonoriginalist methods for deciding cases. This argument was actually anticipated by Brest in his 1980 article, but it was Powell who did the historical legwork to make it plausible, and it was Powell who subsequently engaged in a years-long scholarly battle with Berger over the accuracy of the formers research. It was around this time in the mid-1980s that Edwin Meese, the attorney general, began publicly advocating originalism in a series of lectures and articles. Combined with the Reagan administrations laser-like focus on confirming suitable judges to the federal bench, Meeses speeches showed that originalism had catapulted itself from the pages of law review articles to become the default interpretive theory of the Republican Party. One of the judges confirmed during this time was Scalia, who stepped in to play a major role in the scholarly debates of the 1980s. Brest and Powells criticisms presupposed that originalism was based on the original intentions
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were comfortable wielding power. But originalists began to argue that there was nothing inherently virtuous about a restrained judge; what mattered was what the Constitution commanded. If the judge thought the original meaning of the Constitution required him or her to invalidate a piece of legislation, the judge should not hesitate to do so. Professors Whittington and Randy Barnett were two of the theorists at the forefront of this movement, though each scholar approached constitutionalism from very different standpoints. Whittington has hypothesized that the move away from judicial restraint resulted from the rise of conservative judges in the federal judiciary and the desire to exercise that power in a conservative direction. Whatever the reason, the shift happened, and the stage was set for the theoretical turmoil of the first decade of the 21st century.
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boundaries and core commitments of originalism can restore its solid foundation. The work of solving this indeterminacy crisis will likely play a major role in originalisms future. But just as modern originalism faces a great theoretical threat, it is presented with a real conceptual opportunity to which Senator Lees lecture calls attention. Since Bork, originalism has focused almost exclusively on the role of the judiciary in constitutional interpretation. Whittington has accurately explained that originalism was a reactive theory motivated by substantive disagreement with the recent and then-current actions of the Warren and Burger Courts; originalism was largely developed as a mode of criticism of those actions. Indeed, a real flaw of Borks article was its uncritical acceptance of judicial supremacy, the idea that the The originalism Supreme Court is the final arbiter of the Constitutions meaning. As Senator Lee pointed out of Bork, for in his remarks, Congress has a responsibility, as a branch of government coequal with the judiciary, to instance, can provide no good evaluate the constitutionality of legislation before passing it. His pledge to abide by originalism when reason why conducting this evaluation speaks to fertile theoretiCongress should cal ground that has yet to be tilled: the application of originalism to congressional and presidential connot also be stitutional interpretation. Professors Neal Katyal and Michael Ramsey originalist. have made tentative forays into this field. Originalism and the Legislature and An Originalist Congress, both written by this author, take the topic on directly and argue that the internal logic of various schools of originalism would require Congress to be originalist when it interprets the Constitution. But a good deal is left to be done in this area, and the interest in originalism among members of the political branches ought to inspire scholars to apply originalism extrajudicially. Borks originalism, for instance, can provide no good reason why Congress should not also be originalist. Why is it any more acceptable for Congress to favor majority or minority tyranny by substituting its value choices for those in the Constitution? Why should Congress not have to derive neutral principles when it evaluates the constitutionality of legislation? Borks response may be that the Supreme Court can correct for unconstitutional acts of Congress, but there are a whole range of procedural reasons why the Court might not get a chance to review the constitutionality of a particular statute. It might also be said that the legislature, as the peoples representatives, have a right to make such value choices, but this position constitutes methodological suicide for an originalist. If the will of todays electorate can trump the original meaning of the Constitution, then whatever Congress does is constitutionally legitimate and it would be an usurpation of authority for the Court to invalidate statutes by appealing to the
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By Peter Berkowitz
Jack M. Balkin. Living Originalism. H a rva r d U n i v e rs i t y P r e s s . 4 7 4 Pages. $35.00. ow far do the presidents powers reach in wartime? May the government restrict political expenditures by corporations and unions? Is it within Congresss authority to compel all people, on pain of paying a substantial fine, to purchase health insurance? It is a remarkable fact about liberal democracy in America that left and right agree that to answer such hard questions we must consult the 224-yearold document that brought this country into being, and abide by what it requires, prohibits, and permits. And it
Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University, where he chairs the task force on national security and law. His writings are posted at www.PeterBerkowitz.com
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is a prominent feature of our polarized politics that the quest to determine the Constitutions meaning concerning the great issues of the day excites vehement disagreement between left and right. The two sides bring to the search for the Constitutions meaning competing theories. Progressives tend to view the Constitution as a kind of living organism that grows and develops, and should be adjusted or altered by courts in response to unfolding circumstances. Conservatives generally believe that however much circumstances may have altered, courts are bound by the Constitutions original meaning. Both the doctrine of the living constitution and the doctrine of originalism derive support from common sense and from sober observation of liberal democracy in America. On the one hand, as living constitutionalists emphasize, times change, norms evolve, and some of the Constitutions clauses the First Amendment prohibition on laws abridging freedom of speech, the Eighth Amendment prohibition on cruel and unusual punishment, the Fourteenth Amendment promise that no state shall deny any person life, liberty, or property without due process of law and no state shall deny any person the equal protection of the laws seem to invite courts to apply openended terms such as cruel and unusual, speech, due process, and equal protection in light of the best available understandings. On the other hand, as originalists stress, the original meaning, or range of meanings, of constitutional provisions, serve as the starting point and anchor for analysis that properly regards the Constitution as the Constitution proclaims itself to be as the supreme
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law of the land; any congressional statute, presidential action, or state law that conflicts with the Constitutions original meaning should be rejected as unconstitutional; and by showing fidelity to the original meaning of the Constitution, which is the most authoritative statement of the peoples will and reason, judges maintain courts democratic legitimacy. Contrary to much conventional wisdom in the legal academy, which sees the living constitution and originalism as diametrically opposed schools of constitutional theory, Jack M. Balkin, Knight professor of constitutional law and the First Amendment at the Yale Law School, sides with common sense and sober observation. The choice between living constitutionalism and the doctrine of original meaning, he argues, is a false one: Properly understood these two views of the Constitution are compatible rather than opposed. To vindicate this conciliatory claim, Balkin offers a constitutional theory, framework originalism, which views the Constitution as an initial framework for governance that sets politics in motion, and that Americans must fill out over time through constitutional construction. Like originalists, Balkin insists on the need for fidelity to the original meaning of the Constitution, and in particular, the rules, standards, and principles stated by the Constitutions text. But he believes that fidelity to original meaning also requires, in the spirit of living constitutionalism, the development of constitutional constructions that best apply the constitutional text and its associated principles in current circumstances. Balkin is certainly not the first pro82
gressive legal scholar to attempt to root his constitutional theory in the Constitution. In Freedoms Law: The Moral Reading of the American Constitution (1 9 9 7 ) New York University Law Professor Ronald Dworkin sought to show how fidelity to the Constitution required judges to respect grand principles due process, fairness, and justice so as to ensure that the laws of the land treat persons with equal concern and respect. And in Active Liberty (2005), Supreme Court Justice Stephen Breyer argued that fidelity to the Constitution obliged judges to give priority to reaching decisions that promote citizens participation in political life. In both books, however, the authors professed concern for the meaning of the Constitution seemed a transparent guise for reading into the Constitution their progressive moral and political priorities. In contrast, Balkin takes history seriously and adroitly integrates law and politics. He has read massively political debates, speeches, cases, contemporary legal scholarship and synthesized prodigiously. His intricate elaboration of framework or living originalism, which at its most ambitious amounts to an account of what American constitutional government is and ought to be, provides much to admire and much to ponder and sets a new standard in grand constitutional theory. Balkin insists that original meaning is binding, while contending that fidelity to it requires interpreters to distinguish between instances in which the Constitution identifies a bright line rule Article II, Section 1 requires thatthe president must be at least 35 years of age and instances such as the Due Process and Equal Protection Clauses
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in which the Constitution proclaims general principles whose original meaning stays the same but whose application can be expected to change. He explains how culture, social movements, political mobilization, and electoral politics inevitably and properly interact with judicial interpretation while insisting on the obligation to preserve the all-important distinction between politics and law. And apart from a single lapse in the final three pages in which he adduces George W. Bush administration officials connected to the policy of enhanced interrogation as instances of constitutional evil, he writes about conservative legal theory and conservative politics critically without that anger or disdain that disfigures much academic legal theory. Yet in the end Balkin cannot resist the temptation to which Professor Dworkin and Justice Breyer thoroughly succumbed. The sometimes ingenious arguments that Balkin develops to show how originalism, correctly understood, requires in controversial issue after controversial issue decisions that advance progressive goals and prohibit outcomes favored by conservatives violate the sensible strictures that he sets forth for determining and respecting original meaning. They also further underscore that constriction of the liberal imagination that permits academic progressives to not merely view progressive goals as, all things considered, good public policy, but to equate them with reason, morality, and the law. a number of serious objections that conservatives will benefit from confronting squarely. Balkin agrees with Scalia that judges are bound by the original meaning of the Constitution. He agrees that the Constitutions original meaning consists in how those who were voting for its ratification or ratification of its Amendments would have understood it. He agrees that original meaning must be determined by standard forms of inquiry into Constitutional text, structure, and history. And he agrees that judges are bound by original meaning and barred from substituting for it their moral and political judgments. Famously, however, Scalia maintains that even when the Constitution inscribes a standard or principle say, cruel and unusual in the Eighth Amendment it actually constitutionalizes the original interpretation of that standard or principle, for example, the meaning of cruel and unusual in 1791 when the Eighth Amendment was ratified. In contrast, Balkin argues that the constitutionalization of standards and principles obliges judges to apply the reasonable understanding of those standards and principles in light of contemporary challenges and contemporary norms and understandings. This, he stresses, does not give judges a license to do as they please. Before they can be applied, the meaning of standards and principles must be ascertained through exacting historical study, and must be consistent with the Constitutions underlying structural principles and goals. Scalias fundamental error, according to Balkin, is to confuse fidelity to the Constitutions original meaning with fidelity to the original expected application. Of course, when the Constitution articulates a determinate
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o define framework originalism, Balkin distinguishes it from the approach of originalisms most famous proponent, Supreme Court Justice Antonin Scalia, and raises
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rule, there is no gap: the original meaning of the requirement that the president be at least thirty-five years of age coincides with its expected application, in the founding era as well as today. But when the Constitution articulates an indeterminate standard such as unreasonable searches and seizures in the Fourth Amendment or a general principle such as the Fourteenth Amendments equal protection of the laws it is reasonable to suppose and Balkin marshals considerable historical evidence indicating that so it was understood at the founding and in the years after the Civil War when the Fourteenth Amendment was debated and ratified that the Constitution instructs judges to determine the import and scope of the standards and principles in light of developing norms and changing social and political circumstances. After all, if the Constitutions exclusive purpose had been to bind the American people to determinate rules, it would have been possible to specify in the Fourth Amendment the kinds of searches and seizures that were forbidden, or to limit the reach of the Fourteenth Amendments promise of equal protection of the laws so as to, say, exclude women by stating that no state shall deny persons equal protection of the law on account of race, color, or previous condition of servitude, as does the Fifteenth Amendment in securing the right to vote for the newly freed blacks. Scalias equation of original meaning with original expected application, according to Balkin, gives rise to many difficulties, particularly in regard to precedent. Originalists are forced to treat many precedents, which they regard as errors (in particular those providing constitutional legitimation of
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the regulatory and welfare state forged by the New Deal) as, in Scalias words, pragmatic exceptions to the imperatives of originalism that must be preserved for the sake of political stability. This reflects, Balkin argues, an admission contrary to the tenets of Scalias originalism that legitimacy can come from public acceptance of the Supreme Courts decision, or from considerations of prudence or economic cost. In addition, contends Balkin, in deciding which precedents to leave undisturbed and which to limit or overturn, judges committed to originalism reinstate the kinds of policy decisions and vest in judges the kind of discretion that the theory was meant to preclude. Finally, originalism misrepresents the American political tradition, Balkin asserts, because it treats as regrettable errors in regulation, welfare provision, and civil rights protection the assumption of responsibilities and the performance of tasks by government that have come to be seen by significant majorities as genuine achievements of American constitutionalism and sources of pride. The most significant limitation of Scalias originalism, in Balkins eyes, is that it cannot account for how political and social movements and postenactment history shape our constitutional tradition. In fact, argues Balkin, the Constitution is always both at rest and in motion. While the original meaning of the Constitution does not change, except by the amendment procedures laid out in Article V, the application of the text, since it includes standards and principles, does. Indeed, because conditions are always changing, new problems are always arising, and new forms of social conflict and
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grievance are always emerging, the process of argument and persuasion about how to apply the Constitutions text and principles is never ending. Balkin recognizes, at least formally, that the drama of constitutional democracy that he depicts is a two way street: Views about salient norms and the proper reach and application of constitutional principles may be governed as much by a conservative aspiration for a restoration of the Constitutions lost meaning concerning, say, the right to bear arms as by a progressive aspiration for redemption of the Constitutions grand promises as, for example, in the Preambles aspiration to form a more perfect Union. But in the course of his book, Balkin makes clear that the progressive idea of redemption, or the claim that our Constitution is always a work in progress imperfect and compromised, but directed toward its eventual improvement, is the worthy aspiration. He proclaims that his theory of constitutional interpretation is also a theory of redemptive constitutionalism (italics in the original). He does not proclaim that his theory of constitutional interpretation is also a theory of constitutional restoration. In other words, on Balkins reading, the Constitution is fundamentally a progressive document whose original meaning gives priority to redemption and allows but does not respect restoration. Yet recovering what is inevitably lost and the wisdom embodied in tradition are also vital imperatives for all legal systems. To the extent that Balkins theory, or at least his application of his theory, recognizes restoration, it is only to recover the Constitutions lost progressive meaning and show that it authorizes progressive policies. This governing moral and politJune & July 2012 85
ical intention distorts his understanding of the Constitutions original meaning and hinders his quest for fidelity. onsider balkins analysis of the modern regulatory and administrative state and the Commerce Clause, to which he devotes his longest chapter and which he asserts serves as a good test for the plausibility of any theory of constitutional interpretation. He argues that the New Deal is consistent with the Constitutions original meaning, its text, and its underlying principles. And that Article I, Section 8, Clause 3 of the Constitution, which provides that Congress shall have the power . . . to regulate commerce . . . among the several states, played a pivotal and, in Balkins eyes, entirely legitimate role in justifying New Deal expansion of government power. To be sure, it was necessary for the Supreme Court to apply new constructions or interpretations of the unchanging powers that the Commerce Clause conferred on Congress to legitimate the new functions that the political branches fashioned to deal with emerging challenges of regulation and administration the United States faced as a rising industrial world power. But properly understood, argues Balkin, the Commerce Clause is an extremely broad and flexible grant of power to Congress whose extreme breadth and flexibility are built into its original meaning but cannot be defined or exhausted by its original application. Attempting to turn the tables on conservative originalists, Balkin charges that they have tended to view the commerce power through modern eyes and therefore have misread it. Whereas conservatives have identified
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the original meaning of commerce narrowly with the trade of commodities or somewhat less narrowly with economic activity in general, Balkin argues that those are constructs created by 19thcentury courts. In contrast, in the 18th century, commerce meant intercourse, and it had strongly social overtones (italics in the original). In Balkins interaction theory of commerce, the commerce clause gives Congress the authority to regulate all sorts of interactions among the states, whether they are used for commercial or noncommercial purpose, provided they present a federal problem. In addition to failing to grasp the breadth of the 18th-century concept of commerce, conservative originalists have failed to appreciate the flexibility inscribed in the original meaning of federal and enumerated powers, a phrase Balkin believes is more accurate than limited and enumerated powers. According to Balkin, in the founding era the Constitution was understood to give Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action. Federal power kicks in where state power cannot solve the problems that arise between states: Properly understood, the commerce power authorizes Congress to regulate problems or activities that produce spillover effects between states or generate collective action problems that concern more than one state. A target of regulation only lies beyond Congresss power under the commerce clause, asserts Balkin, if Congress cannot reasonably conclude that an activity presents a federal problem.
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If Balkin were correct that the original meaning of commerce included social interactions generally and that an enumerated power is a power Congress needs to deal with a problem that states cannot be expected to solve on their own or collectively, then he is also correct that the continually expanding modern activist state is unproblematic and that the individual mandate of the Affordable Care Act falls easily within Congresss authority under the Commerce Clause. But Balkins account of the original meaning of the Commerce Clause is not correct. First, while he correctly notes that one of the meanings of commerce in the 18th century as todays dictionaries will confirm remains true of the word was much wider than trade or economic activity, including social relations generally, he asserts without adequate investigation that commerces widest meaning was incorporated into the Constitution and was consistent with the publicly understood meaning of the Constitutions use of the term. It wasnt. Oddly, given Balkins dedication to recovering the Constitutions original meaning, his books extensive index does not contain a single entry for The Federalist, the collection of 85 newspaper articles authored by Alexander Hamilton, John Jay, and James Madison, which became the authoritative exposition of the Constitution and the deservedly most famous contribution to the ratifying debates. And Balkins 100-plus pages of footnotes contain one passing reference to Federalist 1 0 in which he distorts Madisons view.1 In The Federalist, the term commerce generally does not refer to social relations of all sorts.
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Rather, and contrary to Balkins contention that such distinctions were introduced into American constitutional discourse by 19th-century courts, The Federalist regularly contrasts commerce to agriculture and manufacturing and routinely uses the term to refer to the activities of trade, finance, and exchange through markets. Second, Balkin bases his extremely flexible understanding of the meaning of federal and enumerated powers on a misreading of a statement by one of the key founders, James Wilson, in the Pennsylvania ratifying convention in 1787. Balkin quotes Wilson:
Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends, in operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States.
Balkin takes this to mean that Congress may legislate in all cases where states are separately or collectively incompetent. But he does not pay enough attention to Wilsons phrase object of government, which does not refer to any
1. Balkin claims Madison argues that the values of a national political majority . . . may often be more moderate and better protect the right of minorities than those of a smaller more homogeneous political community. In fact, in Madisons view, moderation comes not from the values of the national majority (which Madison does not discuss), but from the Constitutions sound institutional design: Representation enlarges and refines the will of the people, and the size and diffusion of the population either prevents dangerous passions from arising in the majority or prevents majorities from carrying out schemes of oppression.
object at which government may aim but rather governments legitimate objects or purposes. We can be confident that Wilson assumed a distinction between legitimate and illegitimate objects of government action for reasons connected to the third major flaw in Balkins interpretation of the original meaning of the Commerce Clause, which is his demotion or suppression of the supreme underlying structural principle of the Constitution and of its highest goal: The principle is that of limited government and the goal is the securing of individual liberty. Federalist proponents and Anti-Federalist opponents of the Constitution were united in the conviction that the central task of government was to secure individual liberty, and that the central challenge was to forge a national government that would be powerful enough to secure liberty but robustly limited so that it would not wield its power to crush liberty. Accordingly, in Federalist 45 Madison reaffirmed the notion that pervades The Federalist that The powers delegated by the proposed Constitution are few and defined. Those which are to remain in the state governments are numerous and indefinite. In that context, Madison observes that the power to regulate commerce is a new power beyond those contained in the Articles of Confederation but which few oppose and from which no apprehensions are entertained. Balkins reading of the Commerce Clause, which turns the Constitution into a charter of unenumerated and virtually limitless powers, makes nonsense of Madisons assurances that the Commerce Clause is consistent with the Constitutions assignment of few and defined powers
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to the federal government. It also relegates the Constitutions supreme underlying structural principle of limited government to irrelevance. And it turns the goal of securing individual liberty, which both sides in the debate over the ratification of the Constitution agreed was paramount, into an afterthought. To determine whether the Constitution gives Congress authority to compel people to buy health insurance or pay a substantial fine and other hard questions such as how far the presidents powers reach in wartime and whether the government can restrict the political expenditures of corporations and unions it is certainly not sufficient to recognize that ours is first and foremost a constitution of limited powers whose primary purpose is to secure the rights shared equally by all. But it is indispensably necessary. story, but it has many nonfiction passages. Its characters are invented, but they are based on real people. Its about the ussr, but its author is not a Soviet expert, nor does he know Russian. Most remarkably, it focuses on one minor episode in Soviet history, but it explains the nature and demise of the ussr better than any book fiction or nonfiction I have ever read. Whether you are interested in the history of the Soviet Union or not, I am certain you will enjoy this marvelous book. It reminded me of Orwell at his best. But if you are interested in Soviet history, as I am, the book will have special significance. For many decades now, professors, pundits, and politicians have debated a single important question about the ussr: Could the Soviet project to build communism have succeeded, or was it doomed to failure from the start? In Red Plenty, Spufford offers a brilliant answer. In order to understand that answer, however, you must also understand the long and often heated intellectual struggle in which it is situated. Red Plenty has a backstory and, since I was there to witness it, allow me to tell you about it. I first went to the Soviet Union, ironically enough, in 1984. I had studied Russian, and I had taken a few classes and read a few books about the ussr. Being a disaffected youth, I was intrigued by the idea of socialism. It seemed to have great promise, and it gave me something to say about my surroundings other than, Man, this sucks. I paid especially close attention to what those in the New Left said about the ussr, about the way the American and Soviet systems were converging. Thus I flew to Moscow believing that the ussr, though regret88 Policy Review
By Marshall Poe
r a n c i s s p u f f o r d s Red Plenty is a strange and wondrous thing. Its a novel, but its also a history. It tells a made-up
Marshall Poe teaches history at the University of Iowa and is the host of New Books in History (http://newbooksinhistory.com).
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tably not politically free, was culturally sophisticated, economically prosperous, and thoroughly progressive. I half expected to find a country a bit like the United States, though without Republicans. I found no such place. Housing in the ussr was a problem. We lived three to a room in a dilapidated, cockroachinfested panel building. Though it had a large custodial staff, it was always filthy. We had water, but most of it was cold. We had heat, but the only way to regulate it was by opening and closing the window. We had light, but if a bulb went out it was not likely to be replaced anytime soon. Food in the ussr was a problem. There were no grocery stores as such, but rather dirty, poorly stocked, and unimaginatively named shops Bread, Meat, Produce. There were almost no restaurants, and fast-food joints were nothing at all like McDonalds. There were what we would call farmers markets. They had a lot of food, but almost no one in Moscow could afford it. Finished goods in the u s s r were a problem. There were, as far as I knew, only two department stores in Moscow. Neither even remotely approached J.C. Penney in quality or quantity of items on sale. There were sundry stores, but they seemed to sell nothing but pencils, pens, and paper, all of an inferior grade. Transportation in the ussr was a problem. The Moscow Metro was wonderful, but if it didnt go where you wanted you faced a series of bad options: Slog through the icky mud (sidewalks were rare), take a smelly bus (often late and uncomfortably packed), or hire a junky cab (Soviet cars have a welldeserved reputation). Believe it or not, I had an excellent time during my stay,
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largely thanks to my many warm Russian friends. Thats the general picture I recall. But what I remember even more vividly are anecdotes, telling episodes in which the true nature of Soviet life revealed itself. The time I asked for a menu at a famous Georgian restaurant and was told there was no point. The time I witnessed a grown man cry because his Soviet jeans had fallen apart. The time I went to a state motor pool to illicitly buy gas. The time I saw drivers stop their cars during a shower to put their precious windshield wiper on. The time I saw a friend bribe a traffic cop. The time I found large bone fragments in my soup. The time I exchanged money at a large multiple of the official rate with a black-marketer. The time I went to a foreign currency store to buy food for a sick kid. The time I had my glasses fixed by a moonlighting toy-maker. The time I saw old women sweeping the streets with homemade brooms. The time I bought beer by the bucket out of a tanker truck. The time I watched a dogs carcass decompose over the course of months right on the street. The time I took the train from St. Petersburg to Helsinki and had the feeling someone had turned on the lights. p o n m y r e t u r n to the U.S., I entered graduate school at Berkeley to study Russian history. The professor who guided my studies of the Soviet Union was a famously good scholar and advisor. I really liked him, as did everyone. As it happened, he was very sympathetic to the New Left and its understanding of Soviet history. According to this view, capitalism was bad and dying and
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socialism was good and inevitable. The Bolsheviks were brought to power by a popular revolution led by the working class with the kind assistance of the retrograde peasantry. Once in power, Lenin and company began to build something like socialism, though it wasnt true socialism. After Lenins death, however, Stalin seized power and betrayed the lofty goals of the revolution. What he built was definitely not true socialism. When Stalin expired, Khrushchev returned the party to the Leninist course and resumed socialist construction. He was ousted, demonstrating that the ussr was still politically immature, but nonetheless socialist construction continued under new leadership. The contemporary Bolsheviks werent there yet, but the numbers looked good. According to Soviet statistics, the average standard of living in the ussr was approaching that of many Western countries, and without alienated labor. Thus was E.P. Thompson, intellectual star of the New Left and author of the then-ubiquitous Making of the English Working Class, able to write: Soviet society, which is in important respects more classless although it is certainly less free, is more advanced [than Western societies]. Those Western societies, Thompson said unkindly, were dominated by that old bitch gone in the teeth, consumer capitalism. My advisor in matters Soviet agreed with much of this, as did many on the Berkeley faculty. As my studies progressed, I discovered that there were scholars, though not many of them, who didnt believe any of this. Robert Conquest and Richard Pipes, for example, offered a very different interpretation of Soviet history. They began from the premise
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that, on the evidence itself, capitalism was good and communism was bad. The former, they noted, had made people prosperous and free, while the latter whatever its supposed liberating potential made them poor and bound. As for the Bolsheviks, they had mounted a successful coup and claimed popular support in order to win popular support. Once in power they did indeed begin to build communism. But there was no good Lenin, bad Stalin divide. Stalin finished what Lenin had started. So when Stalins successors proclaimed that the period of socialist construction was over and the period of real existing socialism had begun, we should believe them. The Bolsheviks were not building communism, as the New Left claimed; they were living in it. The Soviet Union was communism in the flesh. The Soviet statistics, of course, were a sham: The ussr was shabby, poor, and corrupt, as anyone who had been there could tell you. But Conquest and Pipes went further. They said that the writing was on the wall for the Bolsheviks, and it had been for a long time. The Communist Party might have had the trust of the people once, but it was losing that trust because it could not deliver on its promises. Oppression and lies might delay the end, but eventually the citizens of the Soviet Union would say enough. It was inevitable. So here were two answers to the Soviet question circa 1987: The New Left said the party could and would build socialism, while those we might call the realists said it already had built socialism and the results doomed it. I confess I didnt know what to think, but my experiences in the Soviet Union rather than anything I read
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made me tend toward the realist position. The Soviet Union I had seen was, in fact, shabby, poor, and corrupt. Moreover, I saw no sign of anything resembling faith in the system. Most of the people I knew had passed from bitter cynicism to hopeless acceptance. In any event, the Soviet question received a decisive answer in 1 9 9 1 when the ussr collapsed practically overnight. By luck, I was there to watch the Soviet flag come down from the Kremlin for the last time. hich brings me back to Red Plenty. There was a time when English writers were all socialists of one stripe or another, with some obvious and notable exceptions. No more. Spufford has no sympathy whatsoever for the New Lefts now defunct understanding of the Soviet Union. In Red Plenty, Spufford essentially explores how Soviet communism undermined itself by raising expectations, systematically subverting the programs designed to meet them, and then raising them again. He does so by focusing on a peculiar and little-known episode: the cybernetics initiative of the 1950s and early 1960s. It was one in a long string of Soviet attempts to make communism deliver prosperity. These included, in chronological order: nationalizing everything (didnt work), eliminating money (didnt work), stealing from the peasantry (didnt work), enslaving class enemies in work camps (didnt work), collectivizing the peasantry (sort of worked, but of course not for the peasantry), five-year planning (worked, but only for heavy industry), and hauling German factories back to Russia (didnt work). After World War II, the
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party had run out of fresh ideas to bring the wealth to the masses. So it simply told people that they were prosperous (didnt work). Spufford picks up the story with Khrushchev. He had had enough of the lying: Stalin was a bastard, the people were poor, and something new was needed to get things moving. But what? The imaginative general secretary had many (too many, it turned out) answers, but the one most germane for Red Plenty is science. Truth be told, he was not exactly the first to claim that science would fill the socialist horn of plenty. Stalin put great stock in science as well, or rather a pseudoscience called Marxism. He was, however, very suspicious of all the real sciences because they were bourgeois. To be of any use in the ussr, Stalin said, the real sciences had to be made Marxist. Stalin actually wrote quite a bit about how to make a real science into a Marxist science. He was, after all, a universal genius. Naturally it was all nonsense, as the infamous Lysenko affair and his Lamarckian plants demonstrated. But Khrushchev took a different view. In 1957 he had seen with his own eyes how Soviet scientists used purloined bourgeois know-how (German, as it happened) to overtake and surpass the West by launching Sputnik. What a coup! This was just the sort of magic Nikita Sergeyevich was looking for, he wanted more of it, and he cared not one whit what class interest it reflected. The particular brand of scientific magic then on offer, at least in the realm of socialist planning, was called cybernetics. During the Second World War, the generals gave German, American, and British scientists the task
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of designing machines that could accomplish computationally intensive tasks, such as targeting and firing weapons faster and more accurately than their human operators could. The machines they built were, essentially, the first really practical robots: They gathered information, interpreted it, and adjusted to the result. In other words, they regulated themselves, and to great effect. Norbert Weiner, a mathematician, was one of the scientists who designed these self-regulating systems. He also had a philosophy degree, so he quickly saw their broader significance. He correctly noted that they were found everywhere in nature. Every atom, every molecule, every cell, every organ, every living thing, every environment, the Earth, the solar system, the galaxy, and even the universe itself was a self-regulating system. This being so, he concluded, the study of self-regulating systems constituted a kind of super-science, a discipline that ordered all the ordinary sciences. He called this discipline cybernetics. For a generation of scientists, cybernetics represented the most promising avenue to the theory of everything. For Khrushchev and his scientific advisors, it represented the most efficient road to having everything. Cybernetics would, finally, bring prosperity to the Soviet Union. It would do what Gosplan could not: make the Soviet economy into a vast, efficient, self-regulating machine that brought supply into perfect harmony with demand for everyone. The party poured resources into cybernetics. It also spent a lot of money on propaganda about cybernetics, just so the people would know that their leaders were on the case with a fresh and promising idea.
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Red Plenty is a fictionalized account of the cybernetics program. Spufford tells the story through a series of interwoven vignettes, each inhabited by sharply drawn characters roughly based on real people. We meet starry-eyed mathematicians who are sure equations are the key to making socialism work. We meet academic careerists who care more about the way the political wind is blowing than the way knowledge is progressing. We meet members of the intelligentsia who are carefully testing the waters of thaw-era freedom. We meet party hacks who know nothing will change and are glad of it. We meet collective farmers who dont have a proverbial pot to piss in. We meet journalists who struggle to come to grips with the reality of Soviet oppression. We meet corrupt institute directors who want only to feather their nests. We meet factory managers who are desperate to fulfill the plan, or at least to appear to do so. We meet black-marketers who help them get what they need to fulfill said plan. We meet the gangsters who protect the black-marketers. And we even get to meet Khrushchev himself, both as he vows to overtake and surpass the West on his way to America and as he muses on why it all went wrong in forced retirement. There are certain scenes in the book that are both remarkably telling and memorable: the city boys discovery of squalid poverty in a village right outside Moscow; the apparatchik explaining to the nave scientist that money means nothing in the Soviet economy; the black-marketer being shaken down by both the gangsters and police. I could go on and on, but I dont want to spoil it for you.
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Of course the cybernetics initiative came to nothing, as Spufford explains in vivid colors. And here we come to the underlying message of Red Plenty: The Soviet system real existing socialism ensured that prosperity, let alone freedom, would never come to the ussr. The minute the Bolsheviks decided central planning would completely supplant markets, the die was cast. Very quickly certainly by the end of the nep in the 1920s period the Soviet Union reached a profoundly sub-optimal equilibrium, as the economists might say. Naturally the party saw that things werent going to plan. As Khrushchev said, communism was supposed to make people rich, not keep them in poverty. The party thus launched repeated reform efforts aimed precisely at bringing wealth to the masses. All of them, however, were in vain because they were aimed at perfecting a fundamentally flawed instrument the centrally planned economy. The cybernetics initiative is a perfect (if minor) example. Khrushchev thought it would allow planners to rationally allot resources across the entire economy so as to maximize efficiency and, thereby, raise standards of living. But, as Spuffords characters learn, it could never work. Neither cybernetics nor any other science could determine what everyone wanted and give it to them there was just too much to know and no way to know it. Besides, a host of interests in the system didnt want to see this nut cracked and were deathly afraid of attempts to crack it. Millions of good Soviet citizens lived on the systems inefficiency and corruption. What would they do without it? Its not fair to say that the party mounted this and other reform efforts just to look busy. It
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is, however, fair to say that the party recognized that they went a good way to convince the masses that prosperity was coming even though everyone in the Party knew that it wasnt. We shouldnt think, however, that starry-eyed programs like the cybernetics initiative did nothing to alter the Soviet system. As the cyberneticians themselves would tell us, no self-correcting, self-sustaining system is completely closed. The human body, an excellent example of such a system, relies on many inputs that it cannot produce: water, food, air, etc. When these resources are unavailable, the human body breaks down (Lenins body being the only known exception). The Soviet system depended on many such inputs, but the most important of them was legitimacy. As weve noted, the Bolsheviks promised that if everyone would do as they were told, prosperity would follow. They very publicly mounted reform efforts to make good on this promise. Again and again they failed. They managed to remain in power by means of coercion, deception, and more promises. But all the while they were depleting their stock of legitimacy. Soviet citizens knew what socialism was supposed to be and they knew what it actually was. Every time they had no hot water for a month, were unable to find sausage, stood in long lines for shoddy shoes, and waited in vain for a wretched city bus, they witnessed the yawning gap between the partys aspirations and its accomplishments. This, they ironically said, was Soviet reality. Confidence eroded. People grew cynical. Since the party was neither willing to scale back expectations nor to adopt the market
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reforms that might lead to their partial fulfillment, it had no way to regain the trust of the people it supposedly served. By the 1980s, when I first went to the ussr, the Communist Party had nothing left. No one believed that the promise of 1917 could be made good, not even party members themselves. An essential input was gone and the system collapsed as it had been destined to do from the very beginning. subject that not only suffers from the slippery vagueness of its customary terminology but is also still firmly in the grip of self-appointed ethicists and moralists. Apparently a deliberate ambiguity and the prevailing zeitgeist pay off politically as well as in academic circles. The book was originally published in German as volume IX of the e c a e f book series Studien zur Wirtschafts- und Gesellschaftsordnung and is now available in this splendid translation. Bouillon is one of Germanys leading social philosophers and currently professor of philosophy at the University of Trier (an old, midsized town in the triangle of France, Luxembourg, and Germany). He also serves as director for institutional research at smc University, Vienna, and as academic deputy director for the New Direction Foundation, a new think tank based in Brussels. His numerous books and essays have been translated into several languages, including Chinese. This book is not politically correct and thus will almost certainly provoke some heated debates. In the course of four chapters, with short concluding remarks in the fifth, Bouillon offers here quite a few original insights and explanations to the understanding of business ethics and its decisive central part, namely the definition of a morally just economic action. After all, can such vaguely defined slogans as corporate social responsibility, the ubiquitous word sustainability, or the equally insuppressible phrase social justice really provide for a productive discussion in business ethics? Unlike the majority of authors in the field, Bouillon takes a firm stand and confronts the current semantic and
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By Kurt R. Leube
Kurt R. Leube is professor of economics emeritus and research fellow at the Hoover Institution, Stanford University. He also serves as academic director of the European Center of Austrian Economics, based in the Principality of Liechtenstein.
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intellectual confusion by contesting the most decisive part of business ethics: justice in moral economic actions. He leaves no doubt that business ethics as an academic discipline presents itself mostly as politically biased and only on rare occasions as a science grounded in logic following clear definitions. Thus, through detailed examinations of the basic assumptions of the body of current business ethics, right from the start Bouillon unrelentingly points out the various shortcomings within the subject, which are due to the sloppy and unconvincing language used by most contemporary ethicists. The philosophically untrained reader will be grateful not only for Bouillons gentle and clear step by step introduction to the world of precise philosophic thinking but also his reminder of the implication compliance rule, which is increasingly ignored. According to this principle, a logical conclusion may never have an implication that is not already implied in the subject. Or as he puts it: a logical conclusion may not smuggle in new information and claim validity at the same time. This is especially important for his discussion of the distinction between the empirical and normative aspects of business ethics. In order to follow his arguments it is also important to understand his newly introduced term methodological individualist ethics, which he describes as an ethics that corresponds with one of the main methodological pillars of the Austrian School of economics, namely its methodological individualism (a term coined in 1908 by Joseph A. Schumpeter). Unlike established business ethics, which asserts that there is a moral connection within enterprises, or nations, or any
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other entity, Bouillon argues that only human beings and their deeds can be categorized as moral. This assumption is important, as firms or other organizations are not actors within Bouillons methodological individualist ethics. It follows that social responsibility or value to society, among other popular and widely used phrases, can only be interpreted as a composite of many individual actions. The precise operational definitions of his terms and concepts which he offers along with some elucidations to commonly used words and phrases such as economic goods, property, or markets pave the way for a very useful, step-by-step guide taking readers from a definition of economic action to the definition of moral economic action. In order to lead us to the proper understanding of what he labels moral economic actions, Bouillon provides an interesting and so far ignored correlation to Carl Mengers (the founder of the Austrian School of economics) eminent four prerequisites of an economic good. A thing can become an economic good only, Menger wrote, if the following prerequisites are
simultaneously present: 1) A human need. 2) Such properties as render the thing capable of being brought into a causal connection with the satisfaction of this need. 3) Human knowledge of this causal connection. 4) Command of the thing sufficient to direct it to the satisfaction of the need. Only when all four of these prerequisites are present simultaneously can a thing become a good.
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argues that we always utilize economic goods according to our subjective preference rankings. It is for this reason that he concludes that in order to be identified as an economic action such an action must be performed under the condition of scarcity and must also be subjectively useful. This statement is important for the understanding of his innovative definition of a moral economic action, because inasmuch as the characterization of moral action . . . is accepted, we can conclude that economic action must be compatible with this characterization for being entitled to use the label moral economic action (his italics). In other words, the decisive part of the academic field of business ethics is the moral economic action, or at least, as Bouillon puts it, moral economic action should form it. In the third chapter Bouillon helps us grasp and follow his arguments for a workable definition of a morally economic justice. This chapter is arguably the most important. Especially with todays confusion of language in political thought (as Friedrich von Hayek wrote), and in the face of the ongoing controversies, and with the muddle surrounding the ambiguous concept of social justice right from the onset, Bouillon makes it clear that there are no more or less just actions, as there are more or less courageous, generous, and moderate acts. He who suggests a norm that is not entirely compatible with justice, willy-nilly recommends injustice a cause most people try to avoid, for instance by ways of redefining justice. At the end of the day, should we try to adapt the concept of justice to existing social norms (which we will never fully comprehend)? Or should we rather use these mostly intu96
itively felt social norms to test whether they can stand up against what Bouillon calls formal justice? By and large, in following Hayeks theory of social evolution, Bouillon argues that any social order grows up because individuals unintentionally act within general rules of universal application. The emergence of a social order thus is only possible because individuals act in a certain predictable way with respect to one another. Those groups which have the most effective sets of personal rules of conduct will survive and expand more easily than others. However, the overall effect of observing these rules cannot be known in advance, just like the winners of a game cannot be deduced from looking at or analyzing the rules. In other words, men did not simply design a set of social norms or rules and impose them upon the environment. Social norms may evolve over time from voluntary conventions, from contracts, or even loose agreements between people. These social standards are a sort of structure of interrelated parts that display some predictability and regularity due to the rules that govern their behavior. Our mind is itself a system that undergoes permanent changes as a result of our efforts to adapt to new situations. It is a sort of process of continuous and simultaneous classification, and constant reclassification, on many levels of impulses proceeding in it in any moment. This arrangement is applied in the first instance to all sensory perception but in principle to all the kinds of mental entities, such as emotions, concepts, images, drives, etc. that we find to occur in the mental universe. It seems that the whole order of sensory qualities, all the differences in the
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effects of their occurrence, could be exhaustively accounted for by a complete explanation of all their effects in different combinations and circumstances. We can go along with Bouillons argument concerning economic moral actions and label them as just so long as they do not interfere with the liberty of others (he thoroughly describes liberty in his second chapter). However, the real question about the politically popular concept of social justice still remains to be investigated. Is his understanding of formal or commutative justice (always demanding a restitution of injustices and only indicating what one person is due from another under generally accepted conditions) weakened or seriously damaged by the introduction of that omnipresent phrase social justice? Over the past 150 years, it seems the concept of social justice has successfully replaced the clear meaning of distributive justice and has inspired generations of social policymakers. Although the model of distributive justice can easily be traced back to Aristotle, according to Hayek the synonymous use of distributive justice and social justice was introduced by John Stuart Mill; the usage has since avoided any serious discussion. It is worthwhile to recall Mills own language of 150 years ago:
Society should treat all equally well who have deserved equally well of it, that is, who have deserved equally well absolutely. This is the highest abstract standard of social and distributive justice; towards which all institutions, and the efforts of all virtuous citizens, should be made in the utmost degree to converge.
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Very importantly, however, Bouillon points out that social justice differs from the Aristotelian use of distributive justice, insofar as it seems to intentionally discard the decisive aspects of individual success and accomplishment. Among the most important reasons why the term is so popular, according to Bouillon, is that it appeals to those deeply rooted natural instincts that were appropriate in small tribal societies and equally small organizations. But over the span of hundreds of thousands of years, we have gradually developed into a modern mass society that is radically different from its forebears, and we function now on the principles of equal treatment and free cooperation. And still, most arguments in favor of social justice assume that there is a certain set quantity of goods or services like a cake that can be sliced and then distributed according to abstract moral principles such as need or merit, rather than according to the principles by which the goods or services were produced in the first place. In markets, however, there is no such distinction. Income is distributed according to the anticipated marginal productivity of factors. A persons income in a market economy, therefore, is a function of the value of his or her services to others. It is thus inappropriate to assume that there is any merit in a moral sense in his or her actions. The notion of social justice becomes meaningless in a society of free people because only a mixture of an individuals skills and luck determines the outcome. In other words, the term social justice is mostly used to imply that a particular distribution of wealth or income between various members of a
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society is fairer or more just. The neverending trust in the concept of social justice seems to have emerged among other erroneous beliefs from a misconception of a society. However, we must clearly distinguish between two types of a society: one which is the result of the spontaneous interaction of a multitude of people with different purposes and goals, like markets; and another which is a result of a deliberate design, determined by a shared purpose and goal, such as a club, a corporation, or an organization. To repeat, the notion of social justice is meaningless in a society of free people in which only a mixture of skills and luck determines the outcome. The final chapter is a highly instructive summary in which Bouillon not only reiterates the countless logical contradictions of diverse concepts and the consequences of these inconsistencies for the contemporary intellectual misconceptions in business ethics. He also applies the definitions and insights provided in the previous chapters to politically sensitive and fiercely contested topics such as organ trade and abortion, insider trading and data protection, or the politically most-appropriate cases of bribery and corruption. In light of current debates about market failures, dazzling bonuses for bankers or ceos, special taxation for the rich, or the famous but vacuous phrase fair share, the topic of business ethics is discussed almost everywhere. These debates are regrettably argued either with sloppy terminology or without any deeper understanding of the complex subject. Hardy Bouillons slim book is an important and illuminating contribution, a mustread in business ethics.
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By Paul Kengor
he man in the Middle: An Inside Account of Faith and Politics in the George W. Bush Era is not your typical memoir of the Bush years, nor of any White House. To be sure, readers looking for noteworthy details and insights into the Bush presidency from both a policy and historical perspective will get just that. They will not be disappointed. But they should first brace themselves for a gripping personal story of one mans fall and redemption. And whether you are a person of faith or not, or the coldest policy wonk, you are certain to be drawn in from the opening pages of Tim Goegleins autobiographical account. The story begins vividly with Goeglein, for seven years George W. Bushs deputy director of the White House Office of Public Liaison, dropping to his knees, trembling in his office
Paul Kengor is professor of political science at Grove City College. His books include The Crusader: Ronald Reagan and the Fall of Communism and Dupes: How Americas Adversaries Have Manipulated Progressives for a Century.
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in the building next to the White House. He had just gotten an e-mail from an old journalist friend. I opened the e-mail, read it once, felt the blood drain from my head, got down on my knees next to my desk, and was overcome with a fear and trepidation as never before, writes Goeglein. My only prayer, which I repeated again and again, was God help me. God help me. Goeglein knew immediately it would be the worst day of his life, with a trial he had never faced, a cross perhaps too heavy to bear. The journalist asked Goeglein if he had plagiarized part of a recent column he had written for his hometown newspaper. Was it true? Goeglein, who strived to live his life as a man of character and integrity literally writing and lecturing on virtue answered honestly. It was indeed true. And it was worse than she knew, as she and the whole world would soon learn. Goeglein writes: When I sent that email reply, acknowledging what I had done, in all my guilt and shame, I knew events of that day would move rapidly toward my resignation from the White House and service to a president I loved and respected. He continues: Every one of the principles I held and espoused, every one of the values I was raised by truth in all things, character above intellect, unquestioned integrity before God and man alike every mentor who ever invested part of his or her life in me, I had violated and violated completely. My hypocrisy was transparent, and I was guilty as charged. What a prideful fool I was, and it was all my fault without excuse or exception. Pride cometh before the fall, and now Tim Goeglein fell hard.
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Immediately, his resignation followed, as did the scandalous front pages, the ridicule, the embarrassment, the political damage to the Bush White House, the ordeal of facing friends and family. Having been taken by pride and the temptation of the dark side, Goeglein allowed himself one solace: He vowed to never again darken the doorstep of the West Wing. Ah, but he would have no choice: A few days later, after a weekend from hell, Goeglein got a call from George W. Bushs chief of staff. The president wanted to talk to him. Goeglein steadied himself for a welldeserved trip to the woodshed. Here would be a fitting final punishment, a deserving dnouement to this sordid episode, a justly lasting, ugly memory to soil his seven years of otherwise solid service. George Bush would surely tell him that he had been a grave disappointment. Tim Goeglein walked alone toward the open Oval Office door. He heard the presidents voice: Timmy, is that you? Please come in. It was just Goeglein and Bush, no one else. Goeglein quickly tried to say the first words, Mr. President, I owe you a . . . . Bush stopped him: Tim, I want you to know I forgive you. But Mr. President, interjected Goeglein, I owe you . . . . Tim, Bush interrupted, I have known mercy and grace in my own life, and I am offering it to you now. You are forgiven. Goeglein persisted: But Mr. President, you should have taken me by the lapels and tossed me into Pennsylvania Avenue. I embarrassed you and the team; I am so sorry.
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George W. Bush wasnt much interested. He finished: Tim, you are forgiven, and mercy is real. Now we can talk about this, or we can spend some time together talking about the last seven years. The president escorted Goeglein over to the two couches in the Oval Office. No, sit here, he told Goeglein, gesturing to the chair of honor in front of the fireplace, reserved for distinguished guests. They talked about their families. Here, of course, was an incredibly busy man, into the final stretch of his presidency, overwhelmed with so many domestic and international issues, absorbing so many arrows and indignities, and, yet, he gave this staffer his heart and time. The meeting came to an end. As the president escorted Tim Goeglein to the door, Goeglein was certain he would never see him again a bittersweet moment, and Goeglein choked up. But then George Bush offered yet something more: Tim, he said, I would like you to bring Jenny and your two sons here to the Oval Office so I can tell them what a great husband and father you are. Goeglein was stunned. Two days later, he heard from the White House scheduler. That meeting, too, took place and was likewise unforgettable. To learn more, one must read Goegleins book. And for such reasons alone, the book is worth the time and price. In fact, if for nothing more than a glimpse into this thoroughly and honestly human portrait of George W. Bush, this book is worth it. No matter what the lefts demonization, George W. Bush was a decent man, and this book is a testimony to that.
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As I researched George W. Bush for my own book on him a few years ago, I found a speech he gave back in Texas in December 1 9 9 9 . He talked then about how one behaves when no one else is watching. Character is what happens when no one else is watching. Here, in this moment with Tim Goeglein, no one else was watching, and character is what happened. We know it only through Goegleins words. But we can also gain much more on George W. Bush from Goegleins memoir. There is plenty of material to both feed the inner wonk and add to the historical record on the Bush years. Goegleins perspective contains four core elements of keen interest. First, there are the policy aspects of the book, which tend to gravitate around areas that Goeglein specialized in via his outreach to faith-based groups. These range from the presidents crucial early decision on embryonic stem-cell research, which came shortly before September 11, to matters like gay marriage, the family, and Supreme Court picks, among others. Second, Goeglein offers an accounting of the two elections that narrowly got Bush into the White House, including a chapter on the Florida recount and the values voters critical to Bushs electoral success. Third, this book contains something of a manifesto on conservatism, badly needed as conservatives seek to support a Republican presidential candidate in 2012. Goegleins understanding of conservatism is a thread that runs naturally from chapter to chapter. He effortlessly synthesizes the thinking of great conservative minds from Russell Kirk to Edmund Burke, from Newman to Chesterton, from Whittaker Chambers to Richard
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Weaver to Evelyn Waugh, from Tocqueville to T. S. Eliot. His synthesis is grounded in the American Founders, their principles, and a careful appreciation of the interrelationship between faith and freedom. Goeglein also readably integrates the intriguing personal relationships he forged with conservative founders like William F. Buckley Jr. and Russell Kirk toward the end of their lives. Really, Goegleins insights into conservatism provide a compelling cohesion to his narrative, one that teaches the reader a philosophy for politics and life. His own story and experiences (and struggles) are vindication of the ordered liberty that Kirk advised for all Americans and their country. Finally, Goeglein gives valuable insights into George W. Bushs war decisions, from Afghanistan to Iraq. hen you think about it, it is astonishing that this former governor of Texas, who had hoped to shape a presidency around a largely domestic agenda rooted in what he called compassionate conservatism, found himself thrust into foreign policy amid some of the darkest days in the history of the republic. That happened, of course, on September 11, 2001, as he was reading a book to students in a Florida public school. September 11, Bush often said, changed everything. Goeglein presents this episode much in the same way that it presented itself in the life of George W. Bush. Following a chapter on faith and compassion, Goeglein abruptly talks about driving to work in Washington the morning of September 11 under the clearest of blue skies, the most beautiful day of the year. He, too, like the
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president, began his day routinely. But then lightning struck. Goeglein likewise tried to rapidly assemble and piece together what was happening. Like his president, he was thunderstruck. Given his faith-based role, Goeglein was the man who organized the inspiring National Cathedral service shortly after the attacks, which included Billy Graham, the Clintons, the Gores, and all of official Washington. He secured the participation of a frail Graham, but had to figure out how to get him to town. He worked with the frazzled, under-the-gun faa to literally clear the skies for the elderly church statesman to fly in. The combination of Grahams sermon and Bushs speech, wrote Goeglein, in a Russell Kirk-like thought, had seemed to put Jerusalem and Athens . . . in perfect equipoise that morning. Not quite so balanced, however, was the world that now unraveled outside the walls. Goeglein writes of the immediate sense among the presidents staff of how much things had changed in the ten months since his inaugural. It was truly a new world, instantly transformed from relative peace and prosperity in January to the near-constant stories of horror now streaming in to the White House. The presidents daily schedule was now driven almost exclusively by 911, writes Goeglein, even as domestic concerns continued on one track. Over the next two years, and especially an intense period from late 2001 to early 2003, the White House grappled with interpreting the new world and its challenges and, most acutely, how to respond and make its case. The clash of civilizations was intensifying, terms like jihad were now part of
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everyday vernacular, and the presidents team wondered how much of its response would be or would appear to be jaw-jaw (meaning diplomacy) or war-war. Of course, war-war meant going first into Afghanistan and then Iraq. If 9 / 1 1 had changed George W. Bushs presidency, the decision to go to war in Iraq changed him physically. Goeglein recalls the presidents Oval Office announcement on March 19, 2003: As he declared the United States would invade Iraq, everyone who worked for him saw instantly the gravity of his tone and mien physically transform his appearance; both his face and his body language visibly changed. Bush, notes Goeglein, was a reluctant war president. Nonetheless, this was George W. Bushs hour for choosing. Goeglein does not brush aside the downturns, from the absence of wmd stockpiles to the U.S. death toll prior to the surge, but he wants history to appreciate Bushs leadership qualities in the face of not only very difficult decisions but extraordinarily harsh and unrelenting criticism. He saw in Bush the traits of a great leader: resoluteness and steadfastness instead of indecision; independence of analysis and thought; prudence instead of reaction; and what the great Irish statesman Edmund Burke called moral imagination; which is the ability to see your way forward informed by an ethical view not tarnished by political considerations. We can certainly disagree with Bushs individual choices within the war and even the overall decision to go to war, but when it comes to Bushs sin102
gular focus and leadership, it is difficult to disagree with anything Goeglein says. Bush was extraordinarily decisive and resolute and, yes, apolitical. As to the latter, the worst assessment of Bushs thinking during the entire war period remains Ted Kennedys utterly absurd statement in 2003, when the Massachusetts senator claimed that Bush pursued war in Iraq for political purposes: This was made up in Texas, growled Kennedy, announced . . . to the Republican leadership that war was going to take place and was going to be good politically. In fact, at the moment Bush decided to pursue a highly risky path to war, he was still surfing an unprecedented wave of popularity. Political scientists speak of the rally-round-the-flag phenomenon a boost that presidents receive during national tragedy. Typically, this lift lasts a few weeks. Yet, Bushs postSeptember 11 jump lasted over a year the longest rally-round-the-flag peak ever recorded. And he gave it up to go to war. He sacrificed political fortune for what he thought was right. He never regained that post-September 11 upsurge. Moreover, if body bags piled up, he could easily have been a oneterm president. Kennedys statement was not only mean and unfair but irrational and just plain dumb and sadly all too common among the presidents wild detractors. For his part, George W. Bush did not respond to this kind of nonsensical, outrageous criticism, even when many wanted him to. That, too, was part of Bushs unique leadership. On that, Goeglein explains: Even when his opponents were at their bitterest, he refused to lower himself to their level.
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The most constant refrain I heard from the presidents supporters is that he needed to hit back, to get in the proverbial sandbox and throw some verbal punches. Harry Reid said this war is lost. It was a criticism utterly mild compared to the stunning demagoguery that Goeglein and the White House staff gauged daily and even hourly: Bush was a fascist, an American Hitler; the prison at Gitmo was like a Soviet gulag; Bush lied, kids died. On and on and on. The nature of Goegleins job, which was to reach out to the presidents core conservative and faith-based constituency, and share with them the presidents war narrative, was such that he dealt with war criticisms incessantly. He knew what the presidents critics and supporters alike were thinking. He knew the supporters wanted the faithbased president to, in essence, quit turning the other cheek to the point where Bush often seemed a doormat for his detractors. The presidents advocates were tired of watching him curl up into the fetal position as his tormentors kicked away. They wanted him to kick back, or at least respond effectively. Bush did not do that. I still wish he would have. Nonetheless, even then, as Goeglein observes, Bush was not given to despair or desolation, even in the most desperate, dispiriting days of the occupation of Iraq. Why was that? Goeglein answers that question as well:
I came to see because he talked about it frequently that the president believed this war was between good and evil, between liberty on one hand and tyranny on
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the other. He often framed his arguments in terms of justice to the consternation of his critics. . . . The president believed in good and evil, in right and wrong, and was comfortable putting things in that perspective. There was no valuesfree foreign or domestic policy in the Bush White House and he saw the war in those terms. The enemies of freedom were evil, and the defenders of liberty were good.
Bush withstood the smears on his personal reputation and character. As Goeglein notes, Bush remained comfortable in his own skin and did not need nor seek validation from others. Goeglein is right: Among the political class, that lack of a need for validation alone makes [Bush] unique. So much for the critics. But how will history remember the presidents performance? Goeglein is confident that Bush will be confirmed in his major decisions by history, even though I heard him say on multiple occasions he did not give much thought to his legacy. Will that confirmation occur? Time will tell. And if it does, Bush, as he himself has indeed said, may not live to see the results. The legacy may be one he never witnesses in this lifetime. i m g o e g l e i n s memoir is about much more than George W. Bush and 9/11 and wars in the Middle East. It is somewhat of a disservice here to focus mostly on those elements, although such will be the chief historical contributions of this book. But they are far from the only contributions. A major bonus to this mem-
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oir is Goegleins informed understanding of the conservative movement and what it means to be a conservative. Beyond that still, and at a deeper level, this is a stirring tale of a considerable fall from grace. That fall began its path of redemption through the human grace of a gracious president that Tim Goeglein both served and, in a bad lapse of judgment, also disserved. The human grace of Bush, rooted in faith, tapped into a divine grace that began the process of healing for Goeglein. Bush himself knew that grace from his own personal weaknesses. He knew how and where to access it. Tim Goegleins White House account has a redeeming element not found in the vast majority of conventional White House memoirs. We learn much about the autobiographical subject but also, mostly uniquely, learn something even better about the presidential subject at the heart of the story. chance to observe the Prussian statesman up close was Benjamin Disraeli, who as leader of the Tory opposition first met Bismarck at the Russian ambassadors residence in London in the summer of 1862. On this occasion, Bismarck, on the verge of assuming power, spelled out his plans for Prussian greatness under his leadership:
I shall soon be compelled to undertake the conduct of the Prussian government. My first care will be to reorganize the army, with or without the help of the Landtag [the legislature] . . . As soon as the army shall have been brought into such a condition to inspire respect, I shall seize the first best pretext to declare war against Austria, dissolve the German Diet, subdue the minor states, and give national unity to Germany under Prussian leadership. I have come here to say this to the Queens ministers.
Jonathan Steinberg. Bismarck: A Life. Oxford University Press. 592 Pages. $34.95. tto von bismarck may have had his share of shortcomings, but a lack of ambition wasnt one of them. Among those who had a
By Henrik Bering
Being Bismarck
For clarity of intent, this is hard to beat. Afterwards Disraeli warned the Austrian envoy: Take care of that man. He means what he says. Bismarcks indiscretion was also legendary, and he was perfectly willing to gripe publically about his complicated relationship with his master, emperor William I. Sixteen years later, Disraeli, now as British prime minister, attended a private dinner at the Bismarck residence during the Congress of Berlin and afterwards recorded his impressions in his report to Queen Victoria:
I sat at the right hand of P. Bismarck, and never caring to eat in public, I could listen to his Rabelaisian monologues: endless
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revelations of things he ought not mention. He impressed me never to trust princes or courtiers; that his illness was not as people supposed brought on by the French war, but by the horrible conduct of his sovereign, etc. etc.
more sinister version starts appearing, stressing the irrational and violent aspects of Bismarcks character. His contemporaries saw something of the Evil One in him. Steinberg quotes the British ambassador Odo Russell who wrote that the demonic is stronger in him than in any man I know. f not actually born unpleasant, Bismarck soon got the hang of it: His cold, calculating nature comes through already in his youth, which Steinberg recreates in exquisite detail. One of his closest friends when studying at the University of Gttingen was a young Bostonian, John Lothrop Motley, who later became a diplomat and in whose novel Mortons Hope Bismarck appears under the name of von Rabenmarck:
His dress was in the extreme of the then Gttingen fashion. He wore a chaotic coat without collar or buttons, and as destitute of color as of shape. Enormously wide trousers and boots with iron heels and portentous spurs . . . A faint attempt at moustachios, of an infinite color, completed the equipment of his face, and a huge saber strapped around his waist, that of his habiliment.
In the report, Disraeli also noted the discrepancy between Bismarcks bulk and his well-bred voice: The contrast between his voice, which is sweet and gentle, and his ogre-like form, is striking. Disraeli, the only contemporary whose intellect matched the Prussians, is one of many voices presented in Jonathan Steinbergs splendid biography Bismarck: A Life. As the above passages testify, one of the most fascinating aspects of Bismarcks character is what Steinberg calls his brutal, disarming honesty, which comes mixed with the wiles of a confidence man. Bismarck transformed his world more completely than anybody during the 19th century with the exception of Napoleon, writes Steinberg, and he did this purely though the strength of his personality, which cowed everyone around him. He never had sovereign power but he had a kind of sovereign self. The aim of his book is to demonstrate how this dominance played out in practice, to present him as he was seen through the eyes of others and as he emerges from his own, often very lively letters. As the author notes, for decades after World War II, conservative German historians tended to portray Bismarck as embodying the essence of a visionary and responsible statesmanship, as opposed to Hitlers rashness. At the end of the 20th century a truer,
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A few days later, they meet again in the street, where von Rabenmarck in short order challenges three students to duels on Mensurschlger, the special sword used for manly scarification, and forces a fourth to jump over his stick. But once they have returned to his rooms, a different side is revealed: There, said von Rabenmarck, entering the room and unbuckling his belt, and throwing the pistols and schlger
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on the floor. I can leave my buffoonery for a while and be reasonable. The conversation then turns to how he got admitted to the dueling society, the hardest of the student societies to gain admittance to: I suppose you made friends of the president and the senior as you call him, and other magnates of the club, said I. To which von Rabenmarck responds:
No, I insulted them all publicly, and in the grossest possible manner . . . and after I had cut off the seniors nose, sliced off the con-seniors upper lip, moustachios and all, besides bestowing less severe marks of affection on the others, the whole club in admiration of my prowess and desiring to secure the services of so valorous a combatant voted me in by acclamation . . . I intend to lead my companions here, as I intend to lead them in after-life. You see I am a very rational sort of person now. You would hardly take me for the crazy mountebank you met in the street half an hour ago.
blocked their bedroom door with a chest of drawers. The next morning at 6:30 Bismarck knocked on their doors. No response. He then called from the courtyard. Still no response. Whereupon he fired two pistol shots through the window. A handkerchief on a stick immediately appeared in the window as a sign of surrender. But Bismarck was not content with a life as the local Junker landowner, an existence the dullness of which he had once mockingly described in a letter, imagining himself as ending up a wellfed Landwehr militia officer with a moustache, who curses and swears a justifiable hatred of Frenchmen and Jews until the earth trembles, and beats his dogs and his servants in the most brutal fashion, even if he is tyrannized by his wife. Bismarcks frustrated ambition at this time Steinberg compares to a massive engine with a steam boiler at high pressure and the wheels locked by cast-iron brakes. russias landed aristocracy formed a tightly knit elite where everybody knew each other. The problem facing Bismarcks class was how to retain their power and privileges at a time of profound change, as an emerging modern state with a growing middle and working class threatening their way of life. They hated the free market, free peasants, free movement of capital and labor, free thought, Jews, stock markets, banks, cities and a free press, writes Steinberg. In 1848, William Is brother and predecessor, King Frederick William IV, had in their view humiliated himself by caving in to public pressure and granting a slightly less oppressive constitu106 Policy Review
Clearly, there was method to Bismarcks madness. Later in life, his bullying manner reasserted itself during negotiations with the Austrians, where we find him playing cards with an Austrian diplomat and bent on scaring the poor man with the aggressiveness of his play. Bismarcks wild ways earned him the sobriquet of the mad Junker. Two friends once visited him at Kneiphof, one of the family estates in Pomerania. After a night of heavy drinking, they all agreed to rise early in the morning. His guests had second thoughts and
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tion, though the king still retained control of the army and the civil service. Conservatives were appalled, as one does not negotiate with revolution. Their bible was Burkes Reflections on the Revolution in France, providing them with the arguments for Junker rule from above. When taking a seat in the Diet the year before, Bismarcks approach was similar to the one he had practiced in the dueling societies: He linked up with the Pietists, the most reactionary protestant element of the Junker class. Not that Christian notions of charity or forgiveness meant much to him. As Steinberg notes, his beliefs could be discarded as easily as his extravagant outfit on that day in Gttingen with Mottram. But the Pietists provided a useful platform from which to launch his political career. His parliamentary debut in May 1847 Steinberg sees as typical of his subsequent speeches in the Landtag and in the Reichstag, displaying complete contempt for the members of these bodies, dramatic gestures, violent ideas, couched in sparkling prose, but delivered in easy conversational tones. The royal family were well aware of his brilliance, but also wary of it. During the turbulence of 1848, King Frederick William IV had made a note: Bismarck: To be used only when the bayonets rule without limit. Instead, the King appointed Bismarck ambassador to the German Confederation, consisting of 39 states, whose General Assembly representing the sovereigns met in Frankfurt, and where Austria at this point was calling the shots. And when William took over as prince regent in 1857 after his brothers stroke, he packed Bismarck off as
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envoy to the court of St. Petersburg, where he served for four years. Interestingly, when setting off to Russia, only reluctantly was he granted permission to wear a majors epaulettes by the military authorities. The man who was later to appear wearing a fearsome Pickelhaube had never served in the regular army, only in the reserves, and the army only agreed after he argued that nobody would take him seriously without a proper military rank. But Bismarck dreamt of bigger things. In his famous 1857 letter to Leopold von Gerlach, his mentor among the Pietists, he outlines his political thinking. What has become known as realpolitik is a policy devoid of principle or moral scruple, based solely on a practical pursuit of the national interest. Prussia should be free to use any means available and make alliances or deals with whoever serves her interests of the moment. He even contemplates a temporary alliance with the archenemy, France, to scare the German princes into submission. The idea is to retain maximum flexibility. As he put it in a follow-up letter to a shocked von Gerlach, One cannot play chess if sixteen of the 64 squares are forbidden from the beginning. In every great career, there is usually a person who provides the final, vital assistance. In Bismarcks case it was the minister of war, Albrecht von Roon, who paved the way for his elevation to combined prime minister and foreign minister after parliament had spent the summer of 1862 deadlocked. Two incidents almost derailed Bismarcks career before it got started. On going to meet King William for his appointment, he learned that the king strongly consid-
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ered abdicating, as the Landtag had rejected his army reform; Bismarck managed to talk him out of it. The other incident was Bismarcks first speech as prime minister, his famous blood and iron speech held in the budget committee in the Landtag, in which he declared that Prussias borders were untenable and would have to be settled, not by speeches and majority decisions . . . but by blood and iron. The speech caused an uproar with liberals, who saw it as the first step towards a royal military dictatorship. It could have been his last speech, as the queen was keen on getting him fired for having acted irresponsibly. Resolutely, he stops the kings train on its way to Berlin and persuades his majesty to let him stay on. As Steinberg notes, if William had abdicated in 1862 or if Bismarck had been fired after his blood and iron speech, his career would have been over there and then, and German history would have been very different. But the blood and iron speech merely stated in a public forum what Bismarck had said in smaller settings to Disraeli and others: His goal was to use foreign war to forge internal cohesion and unleash the forces of German nationalism, which would undermine the local rulers in the other German states. First, he picked a fight with the Danes over the duchies of Schleswig Holstein, an issue about the origins of which Lord Palmerston famously quipped that only three people ever understood: One is dead, the other has gone mad, and I have forgotten, but which Steinberg manages to explain in lucid fashion. This gambit was risky because by treaty the British, Russians,
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and French had a right to intervene, but their attention was elsewhere. Then, as outlined to Disraeli, he turned a disagreement with Austria over the occupation of the duchies into a cause for war, resulting in the AustroPrussian War of 1 8 6 6 : Thanks to Prussias superior ability to concentrate its forces, the Austrians were beaten in six weeks and their hegemony ended. But Bismarck was careful not to make the peace too severe, as he needed the Austria as a subservient ally later on. Thus there were no annexations and no victory parade, though William had wanted one. Afterwards Bismarck marveled how brilliant military victories make the best basis for diplomatic arts. Everything went as if oiled. Bismarcks final move was to engineer a conflict with the French while making them look like the aggressors. In this he was greatly aided by the folly of Louis Napoleon, without which, Steinberg notes, Bismarck could never have united Germany. In 1851 Louis Napoleon had staged a bloodless coup and was now emperor, with heady visions of emulating his famous uncle. Napoleon might wear a famous name, but he had inherited none of his uncles military genius, and his army was a meal ticket affair, stuck in its old routines. In the war, Napoleon suffered the humiliation of being taken prisoner at Sedan, but unexpectedly, the French decided to fight on in a guerilla-type campaign. Bismarck again needed a quick end to the war so as to foreclose the possibility of other great-power intervention. Ruthlessly, he suggested bombarding Paris. As commander of the 3rd army, Crown Prince Frederick argued that killing civilians was dishonorable,
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but Bismarck prevailed, and thus saddled the Germans with a reputation for Schrecklichkeit beastliness. The bombardment of Paris and the annexation of Alsace-Lorraine, which Bismarck actually warned against, guaranteed that the French would be itching for a rematch. Having secured the agreement of the southern German states to unify, the high point of Bismarcks career came when William was proclaimed emperor in the Hall of Mirrors in Versailles on January 18, 1871. As Friedrich von Holstein, a foreign ministry official recalls, Bismarck was furious with pastor Rogge who, as the theme for his sermon on the festive occasion, had chosen Come hither, ye princes and be chastised, which does indeed strike one as slightly ironic. espite all his successes, Bismarcks hold on power was precarious. Lacking a solid parliamentary power base of his own support for his Reich party consistently stayed below ten percent, only once reaching 13.6 percent he was totally dependent on William I, his rather decent but unforceful master. Bismarcks was a public of one, writes Steinberg. But William could dismiss him at any point, and Bismarck knew that the empress was against him, as was Crown Prince Frederick and his wife Princess Victoria, both confirmed liberals. This meant that he had to win all his battles with the emperor, bending him to his will, and to prove his indispensability by constantly engineering crises. This was exhausting for both. Said William: It is hard to be Kaiser under Bismarck.
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With Bismarcks political genius went some serious character flaws. As Steinberg notes, in medieval terms, he displayed the two deadly sins of gluttony and wrath. His appetite and his drinking capacity were legendary: A menu from January 1878 features oysters and caviar, followed by venison soup, followed by trout, followed by morel mushrooms and smoked breast of goose, followed by wild boar in Cumberland sauce, saddle of venison, apple fritters, cheese and bread, marzipan, chocolate, and apples. Here we eat until the walls burst, as his personal assistant Christoph Tiedemann noted. Gorging is not uncommon among people who work under severe stress. As concerns his wrath, Steinberg details Bismarcks countless bouts of anger and hypochondria, which increased the more successful he became. Mostly, these episodes were triggered by domestic politics, which was messier than foreign policy. As Steinberg notes, Not even Bismarck could run a modern state, and he would allow nobody to share it with him. He bitterly complained to his brother over those who keep knocking at my door with questions and bills that I could bite the table. He constantly threatened to resign, and for long periods withdrew to his estate, where he would sit sulking in the Prussian mist with his calf-size dogs. Naturally, he was the boss from hell: He was incapable of admitting mistakes, but blamed them on his underlings, whom he took pleasure in humiliating. Yet, notes Steinberg, his staff worshipped him. Tiedemann provides the reason why a sensible man like himself would put up with such histri-
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onics: There is something great to live ones life in and through so great a man, and be absorbed by his thoughts, plans, and decisions, in a certain sense to disappear into his personality. At certain points, Bismarck was close to the edge: During the siege of Paris, a colonel wrote: Bismarck begins really to be ready for the madhouse. In the Reichstag, we find him raving about his stenographers sabotaging him. And the book details how his doctor had to swaddle him in warm blankets and hold his hand. By putting him on a diet, the doctor saved his life. Under it all lay a deep pessimism, the roots of which Steinberg ascribes to the feeling that his class had no future. until he realized he needed them against the socialists, whereupon he called off the persecution. At this time, Germany also experienced a wave of anti-semitism, which Steinberg sees as representing a revulsion of a deeply conservative society against liberalism, with Richard Wagner as the first prophet of modern anti-semitism. As Steinberg notes, while Bismarck didnt create anti-semitism and was himself able to make certain exceptions when he found people useful, he shared all the standard prejudices of his class, and did not nothing to distance himself from them. Tensions in the new Reich were exacerbated by economic woes. After years of boom, helped by French war reparations, came the crash of 1873, which was followed by a long depression. Seeking common ground between the Junkers and the large artisan class in a shared hatred of free markets, capitalism, and free mobility, Bismarck responded by introducing a number of protectionist measures. Bismarcks main concern was the threat represented by the urban workers. Preferring to act preemptively by making changes from the top, rather than face increased pressure from the bottom, he introduced a state system of social security involving accident, sickness, old age and disability insurance, in the belief that this would stem the calls for change. Still, notes Steinberg, the Social Democrats kept gaining seats, thanks to universal suffrage, formerly his best weapon, but now increasingly impossible to control. In fact, says Steinberg, had he known how easily the princes would have given in, he would never have introduced universal suffrage in the
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omestically, he practiced the same kind of tactics that he did in foreign policy. According to the 1871 constitution, there was universal male suffrage, but the voters lacked essential democratic rights and were without influence on the crucial areas of power, which remained under Junker control: The new Germany retained all the worst features of Prussian semi-absolutism and placed them in the hands of Otto von Bismarck, writes Steinberg. To preserve royal power, Bismarck busied himself with playing off different groups against each other, town versus country, liberals versus conservatives, free-marketers versus protectionists. His first target after unification were the Catholics, who, after the addition of the southern states, he thought would become too influential, and against whom he launched the so called Kulturkampf or war of culture, imprisoning or exiling bishops and priests
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first place. His other mistake had been to assume that the masses backed the monarchy, as they had Napoleon 111 in France, overlooking the fact that while France still remained very much an agricultural nation, that no longer applied to Prussia. His reaction to an attempt on the kaisers life in 1878 and recorded by Tiedemann reveals his mindset: He immediately saw the possibilities inherent in the situation: accuse the liberals of being unpatriotic, dissolve the Reichstag, and get a new constitution to replace that of 1870, one that did away with that pesky universal suffrage. Which was exactly what he had planned to do in 1890, had events not overtaken him. n 1888, the so-called Year of the Three Kaisers, the Reich had three emperors, all within 100 days: Wilhelm I died at the age of almost 91 and was followed by his son Frederick III, who had represented England and liberalism, but who was terminally ill with cancer. His death paved the way for the 2 9 -year-old Kaiser William II, an immature and inexperienced youth who liked strutting around in fancy uniforms and was addressed as darling by his homosexual coterie. The new kaiser, whom Bismarck had referred to contemptuously to as that silly boy, did not want to stand in his prime ministers shadow, so he fired him in March 1890: He wanted to rule on his own, he wanted Germany to have a place in the sun, and he was completely out of his depth. The stage was set for the cataclysm of 191418. According to Steinberg, Bismarck carries part of the blame for this cataJune & July 2012 111
strophe by having prevented Germany from entering on a more liberal course: He bequeathed to his successors an unstable structure of rule, writes Steinberg, preserving a grossly unbalanced parliamentary system [which] continued to give the small class of Junker landlords a permanent veto on progress. The constitution, in which a strong chancellor bullies a weak king, was tailor-made to suit his own needs. The author cites British Foreign Secretary Sir Edward Greys comparison of Germany to a huge rudderless battleship, and adds: Bismarck arranged it that way; only he could steer it. Ultimately, it all boiled down to preserving his own hold on power. The means were Olympian, the ends tawdry and pathetic, Steinberg concludes. And he sees a direct Junker link from Bismarck to Adolf Hitler in Hindenburg, the old field marshal and hero of the battle of Tannenberg who, as president of the Weimar Republic, handed Hitler Bismarcks old job. The Junkers thought they could manage Hitler. Thus Steinbergs view of Bismarck appears harsher in tone than the one found in Christopher Clarks history of Prussia, Iron Kingdom, and in places one might have wished for a little more emphasis on the instances where Bismarck showed moderation: As noted above, he warned against annexing Alsace-Lorraine, for instance, but the military insisted. But like Clark, Steinberg notes that there was nothing inevitable about Germanys descent into darkness. The great shame was that Wilhelm I lived so long, almost reaching the age of 91, he writes. The crown prince was a man of liberal
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ideas, which could have allowed Germany to follow the parliamentary path of other European nations. As for the concept of realpolitik, in the American context it is usually associated with Henry Kissinger, who was seen as a politician in the Bismarckian mold, accused by the right of being excessively pragmatist and accomodationist and by the left of being morally unscrupulous, propping up a variety of dictators. Significantly, Zbigniew Brzezinski, Jimmy Carters national security adviser, entitled his memoirs Power and Principle to set himself apart from Kissinger. In Brzezinskis view, a balance needed to be struck between pragmatism and idealism, between a traditional concern with the national interest and a commitment to furthering American values of freedom and democracy. Unfortunately, Brzezinskis boss Jimmy Carter got the balance all wrong. There was a surfeit of principle and precious little power to back it up with. Too morally fastidious, Carter failed to support the shah and instead got Khomeini. And whatever the goals, the crucial ingredient remains a big stick. As Bismarck rightly pointed out, diplomacy becomes so much easier when backed by force.
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