Originalism is a theory of constitutional interpretation, it is not—nor can it be—a constitutional theory in itself.
It is a dicey business for scholars housed at academic institutions to embark on projects to influence public opinion and practical politics. That is one of the relentless premises of Nancy MacLean’s Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, a scurrilous attack on James M. Buchanan that is written as a screed, published with a popular press, and suffused on every page with an obvious intent to influence public opinion and practical politics.
MacLean, the William H. Chafe Professor of History and Public Policy at Duke University, might better have entitled the work, which is pervaded with innuendo and guilt by association, “Six Degrees of Jim Buchanan.” His constitutional focus on veto points is similar to John C. Calhoun’s; Buchanan is therefore tarred by association with Calhoun’s racial views. Buchanan came to prominence in Virginia when the state was under the thumb of the segregationist U.S. Senator Harry Byrd. Byrd’s beliefs on voter suppression are unfurled in tandem with Buchanan’s story, inviting the reader to infer a phantom link between them. Likewise the implied association of Buchanan with the full range of the Virginia journalist James J. Kilpatrick’s views.
In MacLean’s telling, Progressivism is normal and anything to its right, being deviant, requires apology. It is thus “hard to imagine” why Charles Koch holds the views he does, so MacLean naturally turns to the “mysteries of individual human personality” shaped by a warped father-son relationship. Would George Soros receive a similar diagnosis? That Koch might actually have reached his conclusions intellectually does not appear to be within the range of possibilities. Because what MacLean calls “the right” cannot be rationally explained, only corruption, ill will or, failing those, neurosis can do the trick.
There is, for example, this gem on page 38: MacLean writes that the early members of the Mont Pelerin Society wanted to “shift the tide of history away from what they called ‘statism,’ or what we might call a strong role for government.” “They” and “we”—this from an author who accuses Koch of divisive tactics. Those included in this “we” are apparently the normal ones who accept statism.
And it is indeed, on MacLean’s account, normal. Take her treatment of John Maynard Keynes. She is, she humbly allows, “not an economist,” holds “no special brief” for Keynes’ views and leaves debate of them to others.
Given the shallowness of her treatment of Buchanan, the 1986 Nobel laureate in economics, her disclaiming of economic expertise is believable. But the disclaimer would be more credible were it not immediately followed by a world-historical claim for Keynes: “his way of thinking, as implemented by elected officials during the Great Depression, saved liberal democracy in the United States from the rival challenges of fascism and Communism in the face of capitalism’s most cataclysmic collapse.” Later, when Keynesian doctrines have no answer to the stagflation of the 1970s, this is a result, she says, of “chance.”
The bias of her economic analysis is evident in such passages as this:
Buchanan insisted that his hyper-individualistic method was ideologically “neutral.” But it was not. It took effort to deny that “the market” was not a real thing but rather an intellectual abstraction. In the real world, throughout history, people had created markets, and governments had shaped those markets in various ways, always benefiting some groups more than others. History and the daily news alike showed how hard it was for people with vastly unequal wealth to come to a mutually satisfying solution. One had only to read Charles Dickens to grasp the reality of unregulated capitalism; the unchecked economic power of some enabled the domination of others.
Buchanan’s game-theoretical method cannot be a “science,” MacLean opines, because it is not rooted in empirical observation. One wonders if she similarly dismisses John Rawls. Certainly that standard would banish thinkers from Plato to Hobbes to Locke to Rousseau.
Much of the political thinking in these pages is strikingly unsubtle—again owing to the seeming premise that MacLean’s views are correct and deviations from them are aberrant. She seems genuinely surprised that Buchanan could hold—she must specify that it is “with every fiber of his being,” as if to underscore that, no, seriously, can you believe it, someone actually buys this stuff—that measures imposed without unanimous consent “constituted not persuasion of the majority but coercion of the minority.”
Is there any scenario in which they constitute something else? Progressive taxation is entirely defensible, but is paying it voluntary? If not, it is coercive. There are dictionaries: That is what “coercion” means. Redistributive taxation takes money from some people and gives it to other people. The coercion can be justified, but precisely for that reason, it ought to be acknowledged. One presumes that as the holder of a named chair at Duke, MacLean’s salary exceeds that of the average professor; one also presumes that, to invoke Hobbes’ famous example, she locks her door. There is nothing selfish in this act, nor is she denying other people their rights when she does so. She is simply protecting what belongs to her from a coercive act of taking. Buchanan sees constitutional measures inhibiting taxation similarly.
Of course, when a taking occurs politically, it differs categorically from when it occurs privately. One of the drawbacks of MacLean’s unsubtle analysis, indeed, is that it fails to grapple seriously with the shortcomings of public choice theory’s aversion to coercion, which is ultimately a mistrust of political life and a common good. MacLean’s account of Buchanan is reductionist: Everything is motivated by money, and money is often motivated by race, unless it is that race is often motivated by money, which gets confusing.
But I digress. She is correct that public choice theory itself is often reductionist. Its reduction of politics to a process of exchange among individuals seeking to maximize their interests, power, and influence means it cannot account for the most important things. Politics is coercive because people living in conditions of what Peter Augustine Lawler called “natural dependence” make demands on one another and because we cannot attain our highest ends without doing so. Public choice theory would reduce political life to what we avoid, not what we attain.
These nuances are lost on MacLean. Her conception of democracy does not include persuading people to agree with Jim Buchanan. Her conception of democracy does include a horror of “legal—indeed, constitutional—shackles on public officials, shackles so powerful that no matter how sympathetic these officials might be to the will of majorities, no matter how concerned they were with their own reelections, they would no longer have the ability to respond to those who used their numbers to get government to do their bidding.” It’s a horror that, one suspects, does not extend to shackles like Roe v. Wade and Obergefell v. Hodges.
Or, for that matter, Brown v. Board of Education, which unquestionably, and entirely appropriately, shackled local majorities who on MacLean’s own account wanted to deny equal protection of the law to African American students. MacLean’s most pernicious charge is to attribute the genesis of public choice theory to the state of Virginia’s campaign of “massive resistance” to Brown. What gives her the opportunity is that Buchanan pushed his ideas for privatizing schools in this context.
It is difficult fully to trust her characterization of her archival findings of Buchanan in view of her outrageous distortions of Tyler Cowen, whose words she so dramatically mischaracterizes as to invert Cowen’s meaning completely. That said, if Buchanan opposed Brown, he was wrong. So was his dalliance with Augusto Pinochet in Chile’s constitutional reform, which more than anything proves—as if someone had not gotten the memo about Woodrow Wilson—that academics should not be permitted to convert theoretical regimes to reality.
MacLean’s account of Buchanan’s supposed subversion of democracy is equally unconvincing. It is also overwrought: Buchanan’s project is “haunt[ing],” and it is “gnawing.” The rhetorical questions are breathless, such as, “Could it be—and I use these words quite hesitantly and carefully—a fifth-column assault on American democratic governance?” This must be the same hesitation and care that impel MacLean to describe her subjects with a succession of adjectives that ratchets from “radical right” to “capitalist radical right” to (the coup de grâce) “ultra-capitalist radical right.”
And what is the conspiracy in which Buchanan, whom MacLean variously describes (no, really) in terms of “evil genius” and “wicked genius,” is engaged? It is—draw the curtains—this: He wrote his ideas down in books, talked about them with politicians, communicated them to the public . . . and tried to convince others he was right.
Indeed, Charles Koch comes off in these pages as remarkably bad at corruption. Equipped with over $100 billion with which to influence the political process, Koch did—what, exactly? Bribed legislators? Bought voters? No, the rascal is accused of spending his money to persuade people.
With the business booming and nothing much else to take up his time other than what he called a “compulsion” to learn how the world worked, he devoted more and more of his time to reading books and articles that would enhance his “understanding [of] the principles that lead to prosperity and societal progress.”
Wait. Could it be? This sounds positively philanthropic. Koch has a view of justice and is willing to spend his money to achieve it. If this view entailed carbon offsets, MacLean would surely recognize as altruistic the fact that Koch spends more promoting his views than he stands to benefit. What stigmatizes the view in question as “corrupt” in this case is that MacLean disagrees with it.
Here we have the conceptual question with which she utterly fails to grapple. The precise nature of the corruption is as unclear as its mechanism. A union spending money to promote its views on the minimum wage is not corrupt and is not generally viewed as such. One reason is that it has no power to compel assent—unless MacLean herself believes the view she imputes, in another context, to the “American right”: that the people are “dull and inert.” This is, in fact, how she describes them, as a passive force ripe for manipulation.
Hence the fact that the number of people who believe fossil fuels cause climate change has dropped is not due to their independent exercise of their reason but rather to the manipulation of the “Koch-network-funded academics and institutions,” without which “the public would have little doubt that the evidence of science is overwhelming and government action to prevent further global warming is urgent.” The people alone reason correctly and well, with correctness defined as MacLean’s views. The people disturbed by the Koch network lose their intellectual capacity.
Yet money cannot accomplish this. Money cannot plant chips in voters’ brains or force them to vote in desired ways. It can only be used to persuade, and especially in a pervasive information environment, it can only—unless voters are “dull and inert”—persuade the willing. The only areas in which campaign contributions could overcome the will of voters are the microscopic ones voters cannot possibly monitor or see, a fact that—wait for it—public choice analysis illuminates.
Moreover, the direction of causality in donations to political campaigns—that is, whether they induce politicians to take certain positions or follow those who already hold them—is notoriously difficult to establish. The former description is especially alluring, of course, to those who believe conservatism is irrational and that some externality must be necessary to explain it.
Thus MacLean: “James Buchanan did not start out as a shill for billionaires,” she writes, implying that he ended up that way. The suggestion is apparently that the economist took their money and wrote what they wanted. The reality is that they supported him because he said what he was saying anyway.
This notion of the recipient of funding—whether a candidate or a scholar—as a tabula rasa on whom the donor scrawls self-indulgent views is counter to common experience. It is like saying that MacLean had no views, then received a $50,000 government grant to research Buchanan (she did), and consequently became an apologist for government (in this book, she is). The last two steps in that sequence are correct, but the first is silly. There is nothing in Democracy in Chains, one can safely assume, that differs from what MacLean would have said without a grant from the National Endowment for the Humanities. Nor is there any reason to believe Buchanan’s views would have differed had donors not backed him.
MacLean’s pieties about academic independence are similarly confused. She is shocked at Buchanan’s alleged politicization of scholarship yet cites, apparently approvingly, a secret administration study of the supposedly excessive conservatism of his Economics Department at the University of Virginia. Would she similarly approve of an investigation into the leftism of the Divinity School at her Duke University today? Recent events would certainly warrant it. It might be better in both cases for administrations to refrain. In either, the idea of a hostile conservative takeover of academe, as opposed to its occasional success in establishing beachheads that ever so slightly diversify campuses that everyone knows are otherwise monolithic, is laughable to all but those who believe any conservatism at all is an inherent stain upon the robe and hood.
By way of concluding the book, MacLean drops the passivity of her biases, warning of the “horror” of the right-wing agenda and invoking Joseph Goebbels to explain how it is propagandized. It is objective fact—that is, “a large body of research” has “demonstrated”—that inequality “is in good part due to the outsized power of corporations and wealthy donors over our politics and public policy.” She provides a shocking exposé of the “slavery-defending-founders’ constitution,” which contains “egregious” provisions like the equality of states in the Senate and whose undemocratic features the Kochs seek to “exaggerate.”
There are mistakes, whether deliberate or not. MacLean calls the Liberty Fund, the publisher of this web site, “Koch-backed.” It is not. She attributes to Justice Clarence Thomas the view that the Senate should have considered the nomination of Merrick Garland to the Supreme Court; the quotation MacLean cites actually pertains to dysfunction in Washington more broadly.
MacLean repeatedly refers to an undifferentiated judicial era of Lochner and Plessy, to which the advocates of judicial engagement—every one of whom today decries Plessy—are implied to want to return. She writes of “McCulloch v. Madison” and refers to Cato’s Letters, which were published in London, as an American Revolutionary text. She claims West Coast Hotel v. Parrish “enabled all federal regulation” under the Commerce Clause, which is pretty much true in practice, but still.
Of course, authors err. But given that the bulk of her sources are archival and thus unpublished, this book largely asks us to take MacLean’s word for its accuracy. Those details that are verifiable thus assume added importance.
Some of the mistakes are more important than others. The “social movements” MacLean lionizes are described as representing thwarted majorities, which, first, deprives them of the nobility of having stood for the rights of oppressed minorities and, second, entirely elides the problem that majority rule can be abusive and requires constitutional mechanisms to season it. This goes as far as the downright bizarre claim—from a historian of the United States, no less—that the Civil War was necessary to end slavery despite the “vast majority” that apparently supported doing so peacefully. Wait, what? Abraham Lincoln, even then promising not to interfere with existing slavery, won his first term with less than 40 percent of the vote. One would be forgiven for wondering how much of the analysis and judgments in the book can be accepted on their own terms. MacLean is not just given to excessive judgments that impugn Buchanan’s character, she has also written a sloppy book.
The fact that majority rule can be abused does not justify some of the unanimous and supermajority measures to which Buchanan would have subjected the constitutional order. Still less does it justify MacLean in such extremities as accusing Buchanan of racism, fifth columnism, and corruption for the audacity of seeking to persuade other people that he was right.