“For Our Next Trick, We’ll Give Every Child a Little Red Book”

Via Brian Faughnan (who sent it to me in an e-mail), we have this. Charming, no?

The statement from Charles Grassley’s office is entirely on point; I guess that the only really surprising thing about it is that it actually had to be issued. I continue to hope that someday, people like Mao, Che Guevara, Vladimir Lenin and Joseph Stalin will be seen to have been as despicable as Adolf Hitler was, but I increasingly wonder whether the masses will have that epiphany during my lifetime. If the Department of Education were actually on the job, it might have read this before publishing the Mao quote:

Can you name the greatest mass murderer of the 20th century? No, it wasn’t Hitler or Stalin. It was Mao Zedong.

According to the authoritative “Black Book of Communism,” an estimated 65 million Chinese died as a result of Mao’s repeated, merciless attempts to create a new “socialist” China. Anyone who got in his way was done away with — by execution, imprisonment or forced famine.

For Mao, the No. 1 enemy was the intellectual. The so-called Great Helmsman reveled in his blood-letting, boasting, “What’s so unusual about Emperor Shih Huang of the China Dynasty? He had buried alive 460 scholars only, but we have buried alive 46,000 scholars.” Mao was referring to a major “accomplishment” of the Great Cultural Revolution, which from 1966-1976 transformed China into a great House of Fear.

The most inhumane example of Mao’s contempt for human life came when he ordered the collectivization of China’s agriculture under the ironic slogan, the “Great Leap Forward.” A deadly combination of lies about grain production, disastrous farming methods (profitable tea plantations, for example, were turned into rice fields), and misdistribution of food produced the worse famine in human history.

Deaths from hunger reached more than 50 percent in some Chinese villages. The total number of dead from 1959 to 1961 was between 30 million and 40 million — the population of California.

Or this:

Mao, like Stalin, indisputably murdered more people than Hitler. He tyrannized the world’s most populous nation for more than a quarter century; and while by most counts his victims were somewhat less numerous than Stalin’s, the range of error makes it quite possible that Mao Zedong was the greatest mass murderer of the century. Mao was both the Lenin and the Stalin of Chinese Communism: not only did he found the system, but he raised it to lethal maturity. While Mao waited a few years to antagonize the peasants with forced collectivization, the killing began immediately. As Laszlo Ladany observes in his The Communist Party of China and Marxism: 1921-1985:

There are few parallels in history for what the [Chinese] Communists did [when they first came to power]. The French Revolution had many victims, but it did not institute a lasting political system. The October Revolution in the Soviet Union was not a peaceful affair, but the mass killings did not come till years later, during Stalin’s collectivisation… In China, the terror - what else can one call it? - was widespread and saw the beginning of a lasting system.

After Stalin’s death, Khrushchev and his successors eliminated some of the most horrific aspects of his regime. Mao denounced these reforms as “revisionism,” studiously repeating each of Stalin’s horrors. Unlike Stalin, Mao never fully succeeded in utterly crushing internal opposition within the Chinese Communist Party, which is probably why Mao’s policies were not even more deadly than they were.

They could have read Leszek Kolakowski as well, and I encourage everyone to do so. As I mention in my review of Kolakowski’s epic work. “among other things, Mao told his followers that they must take care to not read too many books, not even Marxist/communist books. The mind reels.”

More commentary:

The “Kids’ Zone,” of course, was channeling Chairman Mao’s Little Red Book (or more likely one of the thousands of “quotable quotes” websites on the Internet that mistakenly render insatiable as satiable. We’re not, by the way, suggesting that the Department of Education has been infiltrated by Maoists. Rather, one of its websites seems to be in the hands of historically illiterate hacks.

Needless to say, the prominent featuring of Mao’s quote attracted more than the usual quota of attention to the “Kids’ Zone,” and the snippet was quickly removed. Here is what it was replaced with: “Sorry there is no quote of the of the today.”

The Mao quote eventually got replaced with a quote from Abraham Lincoln. One cannot help but wonder whether the removal occurred for the right reasons, however. For all we know, it may have just been a strategic retreat.

More Shameless Self-Promotion

From SSRN:

Dear Pejman Yousefzadeh:

Your paper, “DICK CHENEY AND THE ROBUST CONCEPTION OF PRESIDENTIAL POWER (BOOK REVIEW OF IN MY TIME: A PERSONAL AND POLITICAL MEMOIR BY DICK CHENEY)”, was recently listed on SSRN’s Top Ten download list for: Political Institutions eJournals.

As of 03/10/2013, your paper has been downloaded 147 times.

Very happy news. Again, keep downloading. Previous bit of shameless self-promotion found here.

Happy News from SSRN

Dear Pejman Yousefzadeh:
Your paper, “DICK CHENEY AND THE ROBUST CONCEPTION OF PRESIDENTIAL POWER (BOOK REVIEW OF IN MY TIME: A PERSONAL AND POLITICAL MEMOIR BY DICK CHENEY)”, was recently listed on SSRN’s Top Ten download list for: LSN: Structure of Government & Political Theory (Topic), LSN: Structure of Government & Separation of Powers (Topic), Law & Politics eJournal, Law & Society: Public Law - Constitutional Law eJournal, PRN: Political Processes, Public Policies, Individual & Social Well-Being (Topic), PSN: Executive Authority (Topic) and Political Institutions: The President & Executives eJournal.

Keep downloading.

As Larry Solum Might Say …

“Download [my article] while it’s hot!” From the abstract:

The memoirs of former Vice President Dick Cheney advance — among other things — his expansive view of executive power. This Book Review discusses Cheney’s those views. It depicts Cheney’s Nixon Administration experience, his time as a member of Congress, and his service as secretary of defense and vice president. In all of his years of public service, Cheney did not become a skeptic of executive power. On the contrary, even as a member of Congress, he sought to safeguard executive power against what he — and others around him — saw as encroachment by Congress. This Book Review also highlights two notable instances in which Cheney, as a member of the Executive Branch, sought to protect presidential power — and one instance in which he worked to preserve the autonomy of the Vice President from the President and his staff.

In Memoriam: Ronald Dworkin

The most consequential legal philosopher since H.L.A. Hart passed away on February 14th. Edward Luce discusses Dworkin’s legacy:

Most accounts of western liberal thought conclude with its seemingly inevitable drift into relativism – the denial that there is any such thing as a right answer. If the 18th and 19th centuries belonged to positive liberty – the idea that a free society could be grounded in morality – the 20th gave way to the negative, as argued by Isaiah Berlin: the only thing society can ultimately promise is freedom from oppression (and that society is largely silent on what people should do with their freedom.)

Ronald Dworkin swam powerfully against that tide. As one of America’s most celebrated liberal philosophers, Dworkin, who has died at 81 in a London hospital, dominated or heavily influenced every field of philosophy he touched. A life-long Anglophile who studied and taught on both sides of the Atlantic, he was a philosopher of constitutional law, morality, politics and how to live life.

Running through all Dworkin’s work, from the seminal Taking Rights Seriously that took on the legal positivists who dominated Anglo-American jurisprudence, to the more recent Justice for Hedgehogs, is the idea there is a right answer to everything. We may not always know what it is – or be able to reveal it to everyone’s satisfaction. But to deny its possibility is to flirt with nihilism.

Professor Larry Solum remembers Dworkin thusly:

… Dworkin’s output was prodigious and his intellect was ferocious.  He was famous for making seemingly effortless presentations, composed in perfect sentences and paragraphs, but apparently delivered on the fly—almost always without notes.  Dworkin was not one to give ground.  Critics were frequently frustrated by his deflection of arguments by restating his position in a way that objections did not apply and then insisting that this had been his position all along.  He was famous for the workshops he hosted, in which he would both present and critique the authors work: it was always quite a show.  Dworkin was for many years the Professor of Jurisprudence at the University of Oxford, he followed H.L.A. Hart in that chair.  He also taught at New York University, Yale, and the University of London.  He clerked for Learned Hand and worked at Sullivan and Cromwell.

Dworkin was undoubtedly one of the greats.  He transformed legal theory and the philosophy of law.  He was deeply committed to liberalism and equality, and lived a life of style and much grace.

Randy Barnett had the opportunity to study with Dworkin:

Dworkin did me a very good turn once. When I was deeply absorbed in Harvard’s extensive 9-hour criminal law trial practice program, I neglected my other courses. I showed up for one only to find I didn’t understand a word the professor was saying. After class, I made a bee line to the Registrar to drop the course, but being a third year student, I needed to find replacement credits. Dworkin agreed to sponsor an independent study for 1 credit hour (I don’t remember how I made up the other 2). I wrote a paper criticizing a chapter of his recently published book, Taking Rights Seriously, devoted to the proposition that there is “no general right to liberty.”

I met with him a couple times to discuss my paper, and the interchanges were amazing. Rather than respond to the criticism or argue, he got inside my argument to see what I needed to say in order to make it work. When he asked me whether I was willing to trade off property rights for an increase in liberty, and I declined, he replied: “Well then you’re not a libertarian, you’re a propertarian.” That challenge inspired a great deal of my early work on liberty that culminated in my book The Structure of Liberty: Justice and the Rule of Law (OUP 1998). (I am currently writing an Afterword for a new edition to be published by Oxford University Press).  (I still think I am a libertarian.)


A master rhetorician, Dworkin was not without his faults and weaknesses, but today is not the day to dwell on these.  Today, I choose to remember the man who did me a very good turn when I needed it badly, at a school where good turns from faculty were hard to come by, and something he did not need to do.  I remember him as a debater extraordinaire who, in his prime, could simply take your breath away when in verbal combat.  I remember him as a scintillating teacher who had a deep influence on me.  Before I became an originalist in the late 90s, if you had asked me about my approach to constitutional interpretation, I would have described myself as a Dworkinian.  Even when I was a very junior professor, he seemed to remember me when we met and was very gracious in his praise.

Another libertarian—Walter Olson—writes that there is much in Dworkin’s work that ought to appeal to libertarians:

I’ve taken a less-than-reverent view of Dworkin’s work myself on occasion, but obituaries make a suitable time to emphasize the positive, and the fact is that over decades of intra-Left legal debates, Dworkin repeatedly took the better side, arguing for the importance of individual rights, free speech and the integrity of law as a discipline in itself. His forceful arguments on First Amendment values were important in preventing the anti-speech feminism of Catherine MacKinnon from becoming the dominant view in American progressive circles. He warned appropriately against the temptation on both left and right to abdicate questions of jurisprudence to simple majoritarianism in one form or another, and argued eloquently on behalf of both formalism and constitutionalism (legal reasoning yields correct answers for adjudicating particular cases, and law is not merely an extension of politics by other means). True, he tended to fill these honorable vessels with very different contents than I or my Cato colleagues might. But better that than to smash the vessels and leave us with no inheritance of law or constitution or legal principle or rights at all, as not a few others on the Left were attempting to do over Dworkin’s long heyday.

Thanks to the Hart-Dworkin debate, Dworkin will forever be linked with H.L.A. Hart. Back in 2007, law professor Scott Shapiro outlined the nature of that debate. From the abstract:

Although trying to capture the essence of a philosophical debate can be tricky, I think that there is an important unity to the Hart-Dworkin debate that can be described in a relatively straightforward manner. I suggest that the debate is organized around one of the most profound issues in the philosophy of law, namely, the relation between legality and morality. Dworkin’s basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. This contention directly challenges, and threatens to undermine, the positivist picture about the nature of law, in which legality is never determined by morality, but solely by social practice. As one might expect, the response by Hart and his followers has been to argue that this dependence of legality on morality is either merely apparent or does not, in fact, undermine the social foundations of law. 

I recommend downloading the full paper. I side with Hart in the debate; morality can be—and often is—a subjective construct that depends in large part on cultural and religious norms. We all have our own concept of what constitutes morality and we would like that morality to find a place in the law, but my morality may not be yours and it is a tricky thing (to say the least) to demand that judges incorporate a standard of morality into their rulings when there are so many different standards of morality out there. To ensure that a standard of morality finds its place in the law, it is best to agitate for political action and to place pressure on legislative bodies in order to bring about a desired addition of a particular moral code into a body of law. So long as a law obeys the dictates of a validly enacted constitution and is passed by officials who are freely elected in a manner that comports with constitutional law, that law should be considered valid. Whether that law is moral is another matter—one best left for politicians and the electorate to hash out in debates and elections.

One of the problems with a Dworkinian jurisprudence is that it conveniently leads to legal outcomes that Dworkin the political animal liked. The New York Times’s obituary notes the following quote from Judge Richard Posner: “Dworkin’s dominant bent as a public intellectual is to polemicize in favor of a standard menu of left-liberal policies.” This critique was echoed by the late Judge Robert Bork, who said that “Dworkin writes with great complexity but, in the end, always discovers that the moral philosophy appropriate to the Constitution produces the results that a liberal moral relativist prefers.” It was fine and good for Dworkin to have a distinct political philosophy to which he professed great adherence throughout his life, but to come up with a method of jurisprudence that just happened to demand that judges make that particular political philosophy part and parcel of their rulings constituted gaming the system. Not everyone shares Dworkin’s political philosophy, but to believe in the validity of Dworkinian, anti-positivist jurisprudence, one is obliged to. That is a step too far.

And of course, some of Dworkin’s comments in the political sphere were silly. David Wagner’s remembrance recalls the following comment from Dworkin during the 2008 election:

Even a mediocre Democratic candidate should win easily. If a remarkably distinguished candidate like Obama loses, this can be for only one reason. We Americans can do something great in November. Or we can do something absolutely terrible and then live with the shame of our stupid, self-destructive racial prejudice for yet another generation.

Of course, it ought to go without saying that there were and are reasons to wish that Barack Obama were not president that have nothing whatsoever to do with race. And I have to believe that Dworkin was smart enough—and not nearly too partisan, despite his obvious partisanship—to believe otherwise.

But while Dworkin could be criticized for certain glaring faults, this is not the time to dwell on them. I certainly don’t want to dwell on them. Rather, let me end this post with an excerpt of Dworkin’s with which I am very much in sympathy:

We have a responsibility to live well, and the importance of living well accounts for the value of having a critically good life. These are no doubt controversial ethical judgments. I also make controversial ethical judgments in any view I take about which lives are good or well-lived. In my own view, someone who leads a boring, conventional life without close friendships or challenges or achievements, marking time to his grave, has not had a good life, even if he thinks he has and even if he has thoroughly enjoyed the life he has had. If you agree, we cannot explain why he should regret this simply by calling attention to pleasures missed: there may have been no pleasures missed, and in any case there is nothing to miss now. We must suppose that he has failed at something: failed in his responsibilities for living.

What kind of value can living well have? The analogy between art and life has often been drawn and as often ridiculed. We should live our lives, the Romantics said, as a work of art… . We distrust the analogy now because it sounds too Wildean, as if the qualities we value in a painting—fine sensibility or a complex formal organization or a subtle interpretation of art’s own history—were the values we should seek in life: the values of the aesthete. These may be poor values to seek in the way we live. But to condemn the analogy for that reason misses its point, which lies in the relation between the value of what is created and the value of the acts of creating it.

We value great art most fundamentally not because the art as product enhances our lives but because it embodies a performance, a rising to artistic challenge. We value human lives well lived not for the completed narrative, as if fiction would do as well, but because they too embody a performance: a rising to the challenge of having a life to lead. The final value of our lives is adverbial, not adjectival—a matter of how we actually lived, not of a label applied to the final result. It is the value of the performance, not anything that is left when the performance is subtracted. It is the value of a brilliant dance or dive when the memories have faded and the ripples died away.

It was once popular to laugh at abstract art by supposing that it could have been painted by a chimpanzee, and people once speculated whether one of billions of apes typing randomly might produce King Lear. If a chimpanzee by accident painted Blue Poles or typed the words of King Lear in the right order, these products would no doubt have very great subjective value. Many people would be desperate to own or anxious to see them. But they would have no value as performance at all. Performance value may exist independently of any object with which that performance value has been fused. There is no product value left when a great painting has been destroyed, but the fact of its creation remains and retains its full performance value. Uccello’s achievements are no less valuable because his paintings were gravely damaged in the Florence flood; Leonardo’s Last Supper might have perished, but the wonder of its creation would not have been diminished. A musical performance or a ballet may have enormous objective value, but if it has not been recorded or filmed, its product value immediately diminishes. Some performances—improvisational theater and unrecorded jazz concerts—find value in their ephemeral singularity: they will never be repeated.

We may count a life’s positive impact—the way the world itself is better because that life was lived—as its product value. Aristotle thought that a good life is one spent in contemplation, exercising reason, and acquiring knowledge; Plato that the good life is a harmonious life achieved through order and balance. Neither of these ancient ideas requires that a wonderful life have any impact at all. Most people’s opinions, so far as these are self-conscious and articulate, ignore impact in the same way. Many of them think that a life devoted to the love of a god or gods is the finest life to lead, and a great many including many who do not share that opinion think the same of a life lived in inherited traditions and steeped in the satisfactions of conviviality, friendship, and family. All these lives have, for most people who want them, subjective value: they bring satisfaction. But so far as we think them objectively good—so far as it would make sense to want to find satisfaction in such lives—it is the performance rather than the product value of living that way that counts.

(Footnote omitted.) Ronald Dworkin: A Life Well Lived.

Requiescat in pace.