Tag Archives: freedom

Lesson from Athens: Democracy ≠ Freedom

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One of the recurring themes here on The Hannibal Blog is the tension between two distinct concepts that we (in the West) usually conflate nowadays:

1) democracy and

2) freedom.

They often appear together, but they are not the same, and indeed they can on occasion become enemies. America’s founders understood this, and they distilled this insight in large part from their meticulous study of ancient (Attic and Roman) history.

Athens, as the first and to this day the “purest” democracy (James Madison’s term), offers one lesson about how democracy can threaten freedom: through the “tyranny of the majority”. (That is also Madison’s term, although Madison, with his incredible acuity, foresaw an even greater greater danger from the mixture of democracy with “factionalism”, which ancient Athens did not yet have.)

So here are my notes from Bettany Hughes’s The Hemlock Cup that pertain to this paradoxical relationship between democracy and freedom in ancient Athens. (The Hemlock Cup is the excellent biography of Socrates I recently reviewed here.)

1) Ostracism

It seems that whenever members of the species Homo Sapiens congregate, the groups they form tend to ostracize individual members. In the context of this dynamic, democracy is merely a way to administer the resulting injustice, as is evident from the word ostracism itself.

The ostraka (see picture above) were shards of pottery which the Athenians used as ballots to vote individual citizens out of their city, ie to exile them. The victims (among them illustrious ones, such as Aristides and Cimon) need not have done anything wrong or bad. It was enough that a plurality (with a minimum of 6,000 votes, according to some sources) were sufficiently pissed off at them.

The exile lasted ten years. Hughes (emphasis mine):

… ostracism came to be a handy way of eliminating the unsuccessful, or unpopularly successful, individuals. The piles of scratched ostraka in the Agora Museum in Athens are hard evidence of lives ruined; ‘Kallias’ is ostracised in c.450 BC, ‘Hyperbolus’ in 417–15 BC and another ‘Sokrates’, ‘Sokrates Anargyrasios’, in 443 BC….

An interesting twist is that the practice of ostracism was most popular during Athen’s most “enlightened” period, ie its Periclean Golden Age. Once Athens started losing the war against Sparta and flirted with oligarchic juntas — roughly from 415 BCE onwards — the practice gradually disappeared.

As Hughes says (emphasis mine):

… shamed by their defeats in war, confused by the freedom their own political system gave them, the Athenians from around 415 BC onwards chose oppression over liberal thinking. After c.415 BC there was no further need for ostracism – because now the state could harry and censor at will. Socrates’ death came at the end of more than a decade of intellectual and political persecutions. We must never forget that although Socrates is the most famous victim of Athenian oppression, there would have been scores – perhaps hundreds – more like him whose names have escaped the historical record.

2) Scapegoating

When something went wrong (plague, defeat, etc), the Athenians also picked some compatriots for permanent expulsion. (The word for such a victim was pharmakos, which is the root of our pharmacy. Go figure.)

This practice subsequently became known as scapegoating.

Scapegoating, democracy and religion formed a potent cocktail of institutions in Athens. Hughes:

I think it was no coincidence that Socrates was killed in May/June – the ancient month of Thargelion. Every year at this time, in an obscure ritual known as the Thargelia, two people – either male and female, or representing the male and the female by wearing a necklace of black and green figs respectively – were exiled from the city as scapegoats. Flogged outside the city walls, their expulsion was a symbolic gesture. The Athenians believed their sacrifice would prevent pollution and stasis from seeping through the city-state.

3) Demagogy

Our word democracy (= people power) is closely related to our word demagogy (= people leading). The two concepts were indeed very close in Athens. And the Athenians were quite aware that in a democracy it is not necessarily the best argument that wins, but the best oratory.

Thus Hughes quotes Thucydides (one of my ‘great thinkers’, for his ruthless depiction of Athenian “realism”), who reports a speech by one Cleon in the Assembly (emphasis again mine):

In speechifying competitions of this sort the prizes go to the spin-doctors and the state is the loser. The blame is yours, for stupidly encouraging these competitive displays … If something is to be done in the future, you weigh it up by hearing a good speech on the subject, and as for the past, you judge it not from your own first-hand, eye-witness experience but from what you hear in some clever bit of rhetoric … You all want to be the first to make a speech, and if you can’t do that, you try to sit there looking as though you are one step ahead of the speaker … you demand changes to the conditions under which you live, and yet have a very dim understanding of the reality of those conditions: you are very slaves to the pleasure of the ear, and more like the audience of a paid public speaker than the council of a city.

4) Leadership

When democracies are unlucky, they fall prey to demagogues. When they are lucky, they have leaders. Athens, for a while, had such a leader: It was Pericles. Although he was technically no more than one among equals in the Assembly (this was a pure democracy, after all), his opinions held sway.

Pericles

Hughes (emphasis mine):

Pericles, because of his position, his intelligence, and his known integrity, could respect the liberty of the people and at the same time hold them in check. It was he who led them, rather than they who led him, and, since he never sought power from any wrong motive, he was under no necessity of flattering them: in fact he was so highly respected that he was able to speak angrily to them and to contradict them. Certainly when he saw that they were going too far in a mood of over-confidence, he would bring back to them a sense of their dangers; and when they were discouraged for no good reason he would restore their confidence. So, in what was nominally a democracy, power was really in the hands of the first citizen.

5) American parallel: populism vs elitism:

It is tempting, of course, to compare ancient Athens with America today. Try, for instance, to swap the words America/American with Athens/Athenian in this passage from Hughes:

This tension between oligarchs and democrats, between aristocrats and the people, charged Athenian politics and culture, and infected its very atmosphere. And Socrates would be both an exemplar and a victim of Athens’ great dilemma: in a true democracy, where power and responsibility are shared equally amongst all citizens, what is the place not just of the good, but of the very great? …

… Socrates goes further, he suggests that tyranny is spawned by the liberty of all in the demos. Here he is the first to suggest that liberty is an illusion fostered by the great to keep the many happy. Come then, tell me, dear friend, how tyranny arises. That it is an outgrowth of democracy is fairly plain….

Freedom to, freedom from

Pericles' Funeral Oration

Two years ago, near the beginning of my amateurish exploration of the concept of freedom here on The Hannibal Blog, I dabbled a bit in the nuance between

  • negative and
  • positive

liberty.

As it happens, there is a much, much better treatment of that distinction in this lecture by Hunter Rawlings, a classicist at Cornell (as well as that university’s former president).

We today subscribe largely to the negative concept of freedom. We want to be free from things (intrusion, government, …)

Most of the ancients — such as Pericles, the Athenian statesman who probably summed up classical democracy best in his famous Funeral Oration, pictured above — took nearly the opposite point of view. They wanted to be free to do things (speak in the assembly, sit on juries, fight in the army, co-determine the fate of their polis…)

(One exception in antiquity might be Diogenes, which is perhaps what makes him so interesting to us, or at least to me.)

As Rawlings puts it, neither society, Greek or American, would regard the other as “free”.

The Greco-Romans had a communitarian (and largely tribal) definition of freedom and were concerned about virtue (but hardly at all about property).

Enlightenment thinkers, starting with John Locke, defined freedom in much more individualistic terms and were more concerned about property than virtue.

The mixture of the two strands was at first (in the minds of geniuses such as Madison or Hamilton) tonic. But something has arguably gone wrong in the centuries since then, leading us gradually to stunningly childish and unsophisticated notions about freedom today.

A short excerpt of the lecture is below, but I hope you take time for the full hour, because it is fascinating and touches on all the topics dear to The Hannibal Blog: Greece and Rome, the Founding Fathers, democracy, et cetera.

Incidentally, I discovered the speech through this Greek blog post, which discusses some of my own posts and which Google has only translated for me very imperfectly. Thank you very much!

I’ll leave you with one snippet from Rawlings’ lecture, which is that the ancient Greeks, being so busy with their freedom to participate in the public business, had … no word for boredom! 🙂

Now the excerpt:

The case for Alexander Hamilton (II)

Alexander Hamilton came from a different background than the other Founding Fathers, one that gave him a different worldview and philosophy of governance and freedom.

It is a philosophy that was bitterly contested at the time — and still is today, especially in this “Tea-Party” year. But overall, Hamilton’s vision is the one that prevailed. We today are, to a surprising extent, living in Hamilton’s America. So what was that vision?

  1. In the previous post, I looked at Hamilton as a man, at his character, life and background.
  2. In this post, I try to describe the ideas that such a character, life and background produced, and their timeless (but, as you’ll see, tragic) legacy.

Balance in government

Recall from the previous post that Hamilton, illegitimate and foreign-born, felt like an outsider in America, felt vulnerable as result, and had reason to be pessimistic about human nature, for he had seen, in the West Indies and in revolutionary America, atrocious human acts.

In particular, he had seen how dangerous mobs could be.

Recall also that he was a superb intellect, deeply versed in the classics.

It was therefore natural that he should appreciate an ancient concept, dating all the way back to Polybius and Aristotle: that balance is necessary to preserve liberty.

The government that best reflects human nature, in this view, blends the elements of

  • monarchy,
  • aristocracy (which literally means rule of the best) and
  • democracy.

But they have to stay in balance, because an excess or corruption of any one of these elements will destroy liberty, by becoming, respectively,

  • tyranny,
  • oligarchy or
  • mob rule.

Thus, for example, Aristotle and Polybius considered Carthage and Rome balanced, but Athens during the time of Socrates to be too democratic to be stable. In Hamilton’s own day, the French Revolution might illustrate the point even better: tyranny and oligarchy (the ancien régime) gave way to mob rule (the guillotine), which gave way to another tyranny (Napoleon), without any intervening liberty in more than motto.

In particular, Hamilton and several other important Founding Fathers, especially James Madison, shared with the classical philosophers an admiration of Rome. When they wrote public treatises, such as The Federalist Papers (discussed below), they adopted Roman pen names. Hamilton, for instance, was Publius (after Publius Valerius, the first consul of Republican Rome).

Madison

Early in their careers, Hamilton and Madison were intellectual allies in this respect. They wanted a republic, not a democracy. They feared tyrannical minorities and majorities equally. Thus they became the most important individuals in the creation and passing of America’s Constitution.

Madison had more intellectual input into the actual document, and was the note-taker during the Constitutional Convention. But Hamilton and Madison then collaborated in campaigning for that Constitution to be ratified by the states. (The document, much as we esteem it today, was very controversial and ratification was a close call.)

The Federalist Papers

This meant above all explaining and interpreting the proposed Constitution, which Hamilton and Madison, along with John Jay, later the first Chief Justice, did with one of the most impressive literary achievements in history: The Federalist Papers.

The Federalist Papers are a collection of 85 essays, of which 51 are attributed to Hamilton, 29 to Madison and 5 to Jay (so Hamilton was clearly the main author). The essays amount to about 175,000 words. And they wrote them in the space of only seven months, in their spare time (!), for they were still pursuing their main vocations during office hours — Hamilton as a lawyer.

Here is a measure of how important The Federalist Papers continue to be: By the year 2000, they had been quoted 291 times in Supreme Court opinions, with the frequency of citations rising with the years. (p. 261 in Ron Chernow’s biography of Hamilton)

And in these Federalist Papers, we see Hamiltonian values — meaning the ancient values of balance — on display. Hamilton envisioned:

  • a strong executive, (≈ monarchy)
  • a strong legislature (≈ democracy), and
  • an independent judiciary that could and should, if necessary, overrule the “popular will” if it destroyed liberty. (≈ aristocracy)

Judicial Review (and Prop 8 )

That this last bit is the “aristocratic element” might take a bit of explaining. To be sure, it is not the only aristocratic element in America’s overall structure. The electoral college originally had actual powers to select the president. Members of the upper chamber of the legislature — called the Senate, in direct allusion to Rome — were elected by state legislatures rather than the voters (an idea that many in the Tea Party want to bring back). And so on.

But the judiciary seems to me to be the most important aristocratic check on both potential tyranny and mob rule. In Federalist Nr 78, Hamilton wrote that

no legislative act … contrary to the constitution can be valid.

This sounds simple and obvious now, but it is not actually in the Constitution. In effect, Hamilton said that the Supreme Court (ie, a meritocratic elite) must be able to overturn legislation (ie, the popular will). Hamilton thus prepared the way for a later Supreme Court decision (Marbury v Madison, 1803) that established the concept of judicial review.

And that, of course, is what we have today. If you want to see the inherent and eternal tension that Hamilton foresaw, look, for instance, to the controversy about California’s “Prop 8“:

  • it is a ballot measure (ie, an expression of the popular will),
  • in which a majority voted to restrict a right (marriage) of a minority (gays and lesbians),
  • before a federal court overturned that vote.

Each side in the Prop 8 debate is screaming “tyranny” at the other, but Hamilton’s notion of balance will prevail. Hamilton, in the 18th century, would certainly have been surprised by the context (gay marriage) but not by the principle involved.

Center and periphery: “enumerated” and “implied” powers

That example of Prop 8, in which a federal judge has overturned a state ballot measure, also shows another aspect of Hamilton’s vision: there also had to be a balance between the core and the periphery, between central government and state government.

Recall the previous post again: Hamilton was actively fighting — as George Washington’s chief of staff, mostly — in the Revolutionary War, whereas some of the other Founding Fathers, and specifically Hamilton’s future enemies (I will get to them in a minute), remained in the comfort of their plantations or with the Continental Congress in Philadelphia, with its bustling dinner-party circuit.

What vantage point did that give Hamilton on the fledgling nation?

He saw that the nation was not viable as such. If the United States then has an equivalent today, it would be the United Nations.

America was fighting a professional army and navy (the Brits) with a ragtag force of militiamen who had no uniforms, and often no shoes and weapons. These Americans enlisted for a year at a time, which meant that Washington feared that his entire fighting force might literally disintegrate and vanish at the end of each enlistment period.

The nation, such as it was, had no powers of taxation. At all. So it had no money to pay its soldiers. And it could not issue debt. It relied on the individual states both for money and for soldiers. On occasion, the American troops mutinied, once even marching on Philadelphia and sending Congress to flee from its own soldiers.

This was not an abstract matter for Hamilton or Washington: They were starving and freezing with their soldiers at, for instance, Valley Forge, a miserable plateau in Pennsylvania where the Americans wintered in 1778-9.

The painting above (of Washington and Lafayette on horseback, with perhaps Hamilton as the rider behind them?) does not really do the misery justice. According to Chernow’s new biography of Washington, the Americans (unlike the soldier in the picture) had no shoes, no coats, sometimes no shirts, and were dying of cold, disease and starvation.

So Hamilton and Washington formed a vision of a strong center, one that could feed and clothe its soldiers and hold the states together. For the center to be strong, it would have to have a professional army, and powers of taxation and borrowing (“Aha,” say the Tea Partiers of 2010…).

When opponents later charged that the Constitution did not explicitly mention the things necessary to build such a strong central government (for example a Central Bank), Hamilton replied that

it is not denied that there are implied as well as express powers.

And thus Hamilton, almost en passant, submitted another evergreen argument into American politics, which you hear debated this year by Tea Partiers parsing “enumerated” and “implied” powers.

But Hamilton was not for a Leviathan (I believe he would be shocked by the bloat of our federal government today). He definitely envisioned the central government, though strong, as sitting atop states that remained otherwise sovereign in their daily affairs. Hence the “federalist” nature of the new country, and the name Hamiltonians called themselves: Federalists.

The federal balance that Hamilton conceived was so stable that Switzerland, in 1848, imported it wholesale and Germany, a century later, in large part.

The first American Capitalist

Alexander Hamilton was the only Founding Father who grasped not just one but both revolutions occurring in his time:

  1. the political revolution in governance and
  2. the industrial revolution.

For background: America was an agrarian society. The colonies were dependent on Britain for manufactures. There were no companies as such (both the legal form and the accounting systems did not exist in any form recognizable to us). Banks as such did not exist. Stock exchanges did not exist.

Hamilton’s enemies, primarily Thomas Jefferson, wanted to keep it that way. To Jefferson, an agrarian America was more “pure” than an industrial America. Here, arguably, likes the origin of America’s schizophrenia regarding “Main Street” versus “Wall Street”. But let’s remember (recall once again the previous post) that the agrarian “purity” of which Jefferson talked was based on slave plantations such as his own in Virginia. It was pre-capitalist, yes, but in a feudal, illiberal, dehumanizing way.

Hamilton, on the other hand, wanted to abolish slavery and looked ahead to a capitalist era. He read Adam Smith’s (then new) Wealth of Nations. He grasped modern concepts of finance. He wanted America to manufacture things, and to finance this new economy with banks and securities.

So he entered the most fruitful period of his career, as the first Treasury Secretary. Washington was president, and the only two other members of the cabinet were Thomas Jefferson as Secretary of State and Henry Knox as Secretary of War. But neither Jefferson nor Knox had much to do, whereas Hamilton became a de facto prime minister to Washington in putting the new country together. Within a few years, Knox had a dozen civilian employees in War, Jefferson had six at State, and Hamilton had … more than 500 at the Treasury. Knox was a jovial nature and didn’t care. But Jefferson was seething.

Hamilton was too busy to care. Within a few years, he created:

  • a central bank,
  • a monetary policy and paper currency to go with it,
  • a stock exchange,
  • a coast guard and customs service to collect the tariffs that were to finance the government (there was no income tax).

In short, he seeded the modern American economy.

The tragic lesson: American inversion of reality

You may agree by now that Hamilton was a genius and that, yes, his vision, more than any other Founding Father’s, created the nation we know. But I personally have learned more from the tragic aspect of his career.

The tragedy has to do with the political inversion of reality that was threatening to undo Hamilton’s career when he died so prematurely in his duel.

And that, too, may be the Founding Fathers’ legacy to us.

What am I talking about?

Opposition to Hamilton and his ideas started early. Some compatriots always found something sinister in his charm and success and genius, in his foreign origins and cosmopolitan attitudes, and in specific opinions such as Hamilton’s abolitionism.

For example, during the struggle in the states to ratify the Constitution, the anti-federalists began posing as populists, even though the most prominent of them were rich slave owners. Patrick Henry of Virginia — the very same Henry who famously said “Give me Liberty or give me Death!” — argued against the Constitution by telling delegates that

They’ll free your niggers.

Others, less blunt than Henry, wrapped their scorn in the emerging meme of the day, which painted Hamilton as a closet monarchist or aristocrat, whereas the (slave-owning) agrarians were the true democrats.

George Washington, who usually kept a dignified distance from the political swamp but reliably sided with Hamilton, wryly observed the irony:

It is a little strange that the men of large property in the South should be more afraid that the Constitution will produce an aristocracy or a monarchy than the genuine, democratical people of the East.

By the “people of the East” he meant the mostly northern farmers, merchants and industrialists in Hamilton’s circles.

Hamilton himself also deployed his irony. In a newspaper piece in 1791, referring to Madison and Jefferson, he wrote (Chernow, p. 307):

As to the negroes, you must be tender upon the subject … Who talk most about liberty and equality …? Is it not those who hold the bill of rights in one hand and a whip for affrighted slaves in the other?

But irony rarely wins in America. Then as now, the most effective political strategy in American politics is relentlessly repetitive attack until reality becomes what the attacker wants it to be. Jefferson was the worst offender, but Madison, Hamilton’s erstwhile soulmate, was just as bad after he split from Hamilton and went over to the “Republican” side.

And let’s reflect on that label the Jeffersonians chose, for a moment. Why call yourself “Republican” if not to imply that your opponents are un-republican? Everything you’ve read in this post so far tells you that Hamilton was a true republican, and yet Jefferson and his cronies now campaigned to make people think the opposite.

And cronies they had plenty. (Both sides did, to be fair). The Fox News of the day was the National Gazette, first published in 1791, a newspaper that served as the mouthpiece for Jeffersonian attacks branding Hamilton as a monarchist, tyrant and what not.

And thus it was that

  • the future presidents Jefferson and Madison, the patrician owners of slaves and plantations, became known and remembered for generations as the folksy democrats who were close to the land and people, whereas
  • Hamilton, the illegitimate quasi-orphan from the Caribbean who had worked his way to success with sheer talent and grit and who wanted to free the slaves, became the elitist aristocrat.

I have, in the paragraphs above, suggested several modern analogs to the issues raised in this post. But I will leave you to ponder this last subject on your own. And I will end, very much as Hamilton might, on that note of pessimism.


The case for Alexander Hamilton (I)

Alexander Hamilton is “my favorite” Founding Father, as I’ve hinted several times before. But I’ve never actually explained what I meant by that.

In this and the next post, I will try to unravel which aspects of this complex, visionary and soulful man (just look at that portrait above!) so resonate with me.

  • In this first post, I’ll sketch the man, his temperament, his journey and philosophy about people and life.
  • In the next post, I’ll describe his intellectual contribution to American governance and political philosophy.

You’ll see after the second post that the man can’t be separated from his ideas, nor the ideas from the man. And you’ll see (I hope) how timeless — meaning: relevant today — Hamilton is.

I will give you my interpretation, but my main source is Ron Chernow’s excellent biography of Hamilton. (I am now reading Chernow’s new biography of George Washington as well.)

Now, to Hamilton, the man:

1) He was an outsider who ended up on the inside

Hamilton was the only Founding Father born outside of what became the United States. He was born in a Caribbean hellhole (called Nevis, in the West Indies) that seemed to specialize in tropical diseases, random violence and the slave trade.

And he was born as an ‘outsider’ in another way: he was illegitimate. His mother was not married to his ostensible father, James Hamilton, and even James Hamilton was probably not his biological father (instead, that seems to have been a gentleman by the name of Thomas Stevens).

His childhood was rough. When Hamilton was a teenager, in the space of a few years,

  • his mother died,
  • his father vanished,
  • his aunt and uncle and grandmother also died,
  • his cousin committed suicide, and
  • Alexander and his brother were disinherited and left penniless orphans.

As Chernow puts it:

that this fatherless adolescent could have ended up a founding father of a country he had not yet even seen seems little short of miraculous.

2) He had an open mind

This experience might mark him as, yes, an American archetype: The Immigrant Who Reinvents Himself.

Reinvent himself he certainly would — several times throughout his short life, and in a unique, and uniquely compelling, way.

He began by getting himself to America. Through savvy, wit, charm, chutzpah, and luck, Hamilton found himself on a trading ship to New York, with an allowance from an older mentor and a job that gave him a bottom-up view of international commerce, shipping and smuggling. (Much later, this expertise would serve him well, when he founded the US customs service and Coast Guard.)

Already his mind was expansive, open to new worlds, both of experiences and ideas. Coming from the Caribbean, he was bilingual in English and French (although, unlike Franklin, Jefferson and Adams, he would never set foot in that superpower of the day).

He was, in a word, cosmopolitan. And this would, yet again, mark him as an outsider in America. For America has always had, and continues to have, an ambivalent — nay, schizophrenic — relationship with cosmopolitan types. Yes, Americans sometimes admire and appreciate them and their perspective. But they also distrust cosmopolitans and are ready to exclude them at a whim — by calling them elitist, for example, or insinuating that they are not real Americans.

Hamilton was also unapologetically erudite, immersing himself into the classics, and in particular in Plutarch, one of my favorites. Among the Founding Fathers he was in good company in this respect, for they all valued intellect and learning. But in America at large this erudition would — yet again — make him potentially suspect, for America has always had, and continues to have, the same ambivalence toward intellectuals that it has toward cosmopolitans.

3) He had a romantic sense of honor

His illegitimate and Caribbean background, and his cosmopolitan style, made him vulnerable to attacks on his reputation. Understandably enough, Hamilton was therefore unusually touchy about his good name, and fiercely keen about defending it. He was an Enlightenment man who believe in reason and law, but he simultaneously retained an older, classical, romantic, even Homeric sense of honor.

His thirst to earn and defend his honor — and specifically his American and patriotic honor — made him demand to be in battle, in the line of actual fire. So he fought with extra valor in the war and came to the attention of George Washington. Hamilton was 22 and Washington 43 when the general made the young man his protégé and chief of staff, giving Hamilton not only a perfect view into American history as it unfolded but a role in shaping it.

Washington was tall, imposing, dignified, laconic and kept his emotions bottled up. Hamilton was five foot seven, slim and athletic, elegant, gave his emotions free reign and was so articulate that he talked himself into trouble as much as out of it. The two men, so different and yet like father and son, would form one of the most important relationships in history.

Hamilton yearned to be more than chief of staff. He wanted to become a war hero, by commanding troops and risking his life. At Yorktown, Washington gave him that command and Hamilton became that hero, after fighting as though driven by a death wish.

In this respect, Hamilton was certainly very different than those Founding Fathers who would become his enemies — above all Jefferson, who somehow always found himself where there was no physical danger, and in one case (when he was governor of Virginia) actually fled on horseback from fighting, for which he was accused of dereliction of duty.

(Remember this when we get to the next post, and the hyper-partisan fight between Jeffersonians and Hamiltonians.)

4) He was ethical but all-too-human

The biggest ethical issue of the day was, of course, slavery. And how did Hamilton regard this institution?

As despicable and evil. He was unambiguous and clear about it. He was the first and staunchest abolitionist among the Founding Fathers.

To us this is a no-brainer, but to Americans at the time it was not. Washington, Jefferson, Madison and all the Southern Founding Fathers owned, bought and sold slaves. They may have had qualms, but never enough to free their slaves or to push for abolition (Washington was the only one of them to emancipate his slaves after his death). This, of course, is the founding irony at the heart of the American idea: Thomas Jefferson owned human beings at the very instant in which he wrote the words “… life, liberty and the pursuit of happiness.”

So Hamilton was unusual in that he was ethically on the right side of this issue. Which would make it all the more ironic — in that inevitable American way — that his political enemies, including some of the aforementioned slave owners, would later try to paint him as immoral.

How? The way one does this in America: with a sex scandal. Hamilton, stupidly and unnecessarily, allowed himself to be seduced. It was America’s first public and politicized bimbo eruption, a sort of proto-Lewinsky affair. It is of no interest or consequence to us, but it was in its day.

Hamilton was certainly a charmer and flirt. That episode aside, however, Hamilton was also a devoted husband and father, perhaps because he had never had a father. He and his wife had an intimate bond. And his eight children meant everything to him. When his oldest son, handsome and also sensitive about his honor, died in a duel, Hamilton went to pieces in grief.

5) He had a nuanced grasp of human nature

From his reading of history and the classics, and his own upbringing in the West Indies, Hamilton developed a sophisticated worldview that was somewhat pessimistic about human nature, at least in comparison to the — then as now — reflexive and simplistic optimism that usually wins arguments in America.

Thus he saw the potential evil of tyranny — which, of course, he was actively fighting with Washington in the war against the British crown — but he also saw the potential evil of mobs, of anarchy. There was a lot of violence in those days, much of it directed at Tories or loyalists, who might easily end up tarred-and-feathered or even lynched. But Hamilton, even though he fought for the republic, always remained humane towards individuals on the other side — and wary of mobs on any side.

Our countrymen have all the folly of the ass and all the passiveness of the sheep in their compositions,

he once said. And that would lead him to say things such as this:

We should blend the advantages of a monarchy and of a republic in a happy and beneficial union.

But that will be the segue to the next post.

6) He died as he lived, but too young

But before I hand over to that next post, just one final anecdote that gives a glimpse into his character. Because he guarded his reputation and honor so jealously, he had, on occasion, to duel. He certainly saw the folly of dueling as he got older. He must even have hated it after he lost his beloved son in a duel.

But when, in the ordinary course of bitter partisan politics, certain things were said between him and a vulgar mediocrity named Aaron Burr, Hamilton picked up the very pistols his son had used, rowed across the Hudson to New Jersey (duelling was illegal in New York), and met his challenger in a clearing by the river.

It appears that Hamilton shot first, but “threw his shot away”, in the parlance. In other words, he deliberately missed by firing into air, thus signaling that both parties had satisfied the requirements of honor and could end this business without shedding blood.

Then it was Burr’s turn. But Burr had a different sense of chivalry. He aimed at Hamilton and found his target.

Hamilton, in convulsions, was rowed back to New York, where he died many agonizing hours later, as his family and city grieved over the loss of a great man, who, aged about 47, had already changed the world in ways that would only fully become clear generations later.

Spontaneity and order

 

Hayek

 

Ten years ago, I began a piece in The Economist about Hong Kong with a paragraph that was, in this particular context, intended to be surprising:

FRIEDRICH VON HAYEK and Walter Eucken parted company over the issue of power formation in the private sector. Hayek, a leader of the Austrian school of liberalism, believed that keeping government small was enough to preserve competition. Eucken, who founded the school’s German branch, felt that anyone with excessive power, whether a government or a company, could threaten economic freedom. It is a pity that neither was alive this week to analyse the case of Hong Kong….

 

Eucken (click for credits)

 

Our local readers in Hong Kong quite enjoyed this framing of what they considered their “little” hometown business controversies, since they don’t usually see their city connected to the big debates among Western intellectuals.

I, however, was fascinated by precisely those local controversies, for two reasons:

  1. I consider Hong Kong the freest place in the world (and thus worth studying), and
  2. I have a personal connection to that debate between Hayek and Eucken, which I’ll tell you about at the end of this post.

Liberalism vs Libertarianism

What reminded me of all this was a post the other day by one of my colleagues about the two isms, Liberalism and Libertarianism. He concludes that the difference is basically about the precise role of government and

which approach is likeliest to lead to the most freedom.

So, because I’ve been parsing Liberalism here on The Hannibal Blog for a couple of years now, I thought I’d add a “continental” twist for those of you who are connoisseurs of all things liberal.

Between Freiburg and Vienna

 

Mises (click for credits)

 

For a lot of “Anglo-Saxons”, in my experience, the first surprise is that that there is a continental twist at all. Surprise turns into shock when the twist turns out to be specifically Germanic. Could Germans really have much to say about freedom?

Well, yes, a whole lot. The liberal tradition is long and deep in the German-speaking countries. Obviously it suffered a near-death experience during the Nazi years, but then it came roaring back in the post-war years.

More to the point, a lot of what we now tend to think of as “Anglo-Saxon” ideas actually have an intellectual pedigree that goes back to these “Germanic” (mainly German and Austrian) thinkers.

Ludwig von Mises (above) was the first giant of the so-called “Austrian School”, and in turn influenced the even more gigantic Friedrich von Hayek. Hayek in turn influenced Milton Friedman, who in turn influenced Ronald Reagan and Margaret Thatcher, thus re-branding Austrian Liberalism in the minds of many people as an “Anglo-Saxon” thing.

 

Rüstow

 

Walter Eucken, on the other hand, founded the so-called “Freiburg School” of Liberalism (after the university town where they hung out), which included liberal thinkers such as Alexander Rüstow (above) and Wilhelm Röpke (below).

 

Roepke

 

How spontaneous is order?

The first and most important thing to understand about all these thinkers is that they were friends. They liked each other’s company and liked debating one another. They viewed themselves not on opposing sides of anything, but on the same side: the side of individual freedom (which is what all classical Liberals agree on).

The subtlety that kept them busy (and I deliberately oversimplify) had to do with order. The Latin for order is Ordo, so the Freiburg School eventually even called themselves Ordoliberals.

Order, as opposed to anarchy, is necessary for individuals to be free. The question, however, is whether or not order comes about spontaneously.

Option 1: Yes

If the answer is Yes, as the “Austrians” basically believed, then the conclusion has to be that we simply need to keep government out of the equation entirely.

The “market” (and this could apply to more than material things — ie, ideas, culture, etc) will then “order” itself spontaneously, though competition. The prerequisite is merely the rule of law.

Option 2: Jein

The Ordoliberals did not counter that the answer is No. Instead, I would call their answer Jein (a contraction of Ja and Nein in German). Yes, markets can spontaneously create order. But that order is not always stable. Worse, that order could be of a sort that robs individuals of liberty.

What they had in mind were cartels, tycoons, cabals, and anybody else who amassed an unhealthy amount of power.

So whereas the “Austrians” worried almost exclusively about excessive government power, the Ordoliberals worried about all excessive power, whether in the private or public sector.

This led the Ordoliberals to the conclusion that government must, yes, stay limited, but must also supplement the “spontaneous” ordering of markets with “corrective” ordering. Government had to crack down hard on cartels and monopolies, for example.

My personal interest

I mentioned a personal connection to the debate. Well, I wrote my Master’s thesis at the London School of Economics about it (or rather, about an obscure aspect of it). My dad had once written his PhD thesis about another obscure aspect of it. And that was probably because his uncle and godfather was somebody by the name of Ludwig Erhard (“Uncle Lulu“). Here they are in the sixties, Lulu on the left, dad on the right:

And if Hayek influenced Ronald Reagan and Margaret Thatcher, and thus “Anglo-Saxon” policy, the Ordoliberals shaped Ludwig Erhard and thus post-war West German policy, for Uncle Lulu was West Germany’s first economics minister and then its second chancellor.

Postscript: Liberal v Libertarian (again)

So back to those two isms.

In essence, I think that Libertarians trace their evolution back to the Austrians featured here, and Liberals to the Ordoliberals.

However, those Austrian and Ordo-Liberals themselves, if we were able to bring them here today, would be puzzled by the debate. They would abhor some of the intellectual excesses committed in both names, and remind us that they were originally almost indistinguishable.

High on freedom and honest debate

I find that a great test of whether your instincts are liberal (as classically and correctly defined to mean freedom-loving) is how you approach the question of legalising marijuana.

In the current issue of The Economist I try to summarize the debate in California about Proposition 19 in November, a ballot measure that would legalize cannabis for those 21 or older.

And in an accompanying podcast, I interview an opponent and a proponent of legalization, both carefully chosen, in an attempt to get beyond mere gut instincts to clarify the arguments for and against. I wonder how you guys would interpret that conversation.

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Justice: by truth or victory?

Credit: Javitomad

Which sort of judicial system, generally speaking, is more likely to lead to justice? One that:

  • looks for the truth, or
  • lets two sides fight it out to see who wins?

You might think that I’m setting up another facile thought experiment, but I am not. Most of the world has, through the fascinating and mysterious quirks of history, chosen one or the other of these underlying approaches to justice.

The first philosophy — justice as a search for truth — we call the inquisitorial system (because a judge sets out to inquire after the facts of a case, ie the truth).

The second philosophy — justice by duking it out until one side is left standing — we call the adversarial system (because two adversaries and their lawyers meet in court, and a judge merely makes sure that the rules are observed).

We generally find the inquisitorial philosophy undergirding the civil law systems of continental Europe and its former colonies and the countries that have adopted it voluntarily. That turns out to be most of the world — all the countries in blue on the map above.

And we find the adversarial philosophy mainly in the common law systems of England and all the lands it ruled at one point or another — ie, the countries in red or brown on the map. (Let’s leave the countries with Islamic Law, in yellow, and Mongolia, in green, out of this post.)

Because justice, and therefore law, is so fundamental to freedom (which is one of my favorite topics) I have for some time been pondering the question I opened with. So I challenged Richard, a frequent commenter on The Hannibal Blog and a veteran English lawyer, to compare the two systems. Somewhat to my surprise, he did.

In this rigorous series of posts, Richard introduces the systems in turn, proceeding methodically and cautiously to unveil — somewhat coquettishly, I might add 😉 — his preference. (I won’t spoil the fun: Go and find out for yourself.)

Here now is my modest contribution.

A brief history of the systems

Historically, the adversarial system descends from the brute medieval practice of trial by combat.

You did me wrong! → Let’s fight.

It is, in short, the law of the stronger.

Click for credits

Right from the start, especially whenever ladies were involved, the adversaries were allowed to appoint champions to fight on their behalf.

Like its gruesome medieval judicial cousin, trial by ordeal, trial by combat made no pretense to truth. Somebody prevailed, that was all. So it was efficient. But we would not call that justice.

In 1215, Pope Innocent III wanted to change that. So he reformed the court system administered by the Catholic Church across Europe (ie, the ecclesiastical courts, from Greek ekklesia, assembly or church).

The idea was that an ecclesiastical court could take the initiative and summon and interrogate witnesses even without an accusation by one adversary against another.

Trial by combat was now forbidden in the ecclesiastical system. On the continent, this ecclesiastical tradition then became the basis for the subsequent evolution of secular courts.

But in England, Henry II had, during the 1160s, established parallel secular courts. When the church-administered courts in England switched to the inquisitorial system, the secular courts remained adversarial, and those in time became the courts of England. Hence the split.

Henry II

Critique

I) The adversarial system

The adversarial system makes me — intrinsically, philosophically, emotionally — uncomfortable because it was not originally designed to ascertain truth, merely the supremacy of one side.

That said, it has evolved in such as way that truth is now the implicit and desired by-product of the adversarial struggle. If the rules (of evidence, testimony, presumption of innocence et cetera) are sophisticated, it is hoped, the truth is revealed in the process and the “right” side wins, so that the outcome is indeed just.

Nonetheless, there are troubling remnants of the system’s combat origins:

1) The undue role of the “champions”

Today, we call those champions lawyers (attorneys, solicitors….). In the adversarial system, they are the stars. What do you tell a friend in trouble in an adversarial country? “Get a good lawyer.”

Some people try to get a good lawyer, but end up with a bad one, or at least one less good than the adversary’s. Other people cannot afford a good one. Others can afford entire armies of lawyers, and usually win. So money plays an unsavory role.

If the truth really wanted to be revealed, why should it matter so much which lawyer you have? But we all know that it does matter.

2) The undue emphasis on winning

An inquisitor wants to find the truth. But a prosecutor wants to win. To him, that means to convict.

A couple of days ago, I was chatting with Steve Cooley, the district attorney of Los Angeles County and a candidate for attorney general of California. How does he compare himself to his rival, Kamala Harris, the district attorney of San Francisco? Through the conviction rate, of course. Whether or not the convictions were just does not even come up for discussion. (How would you even discuss it?)

In practice, said Cooley, about 95% of convictions come through plea bargains, an inherent part of the adversarial system. (Ie, the two sides come to an agreement even before an independent judge or jury evaluates the truth of their arguments.)

Well, I recently mentioned Harvey Silverglate’s book detailing the various excesses to which prosecutors can go in the pursuit of victory. You can make anybody break down by piling more charges on him until he pleads. That does not make it just.

II) The inquisitorial system

The inquisitorial system makes me uncomfortable in a different way.

In theory, it is splendid to task somebody with inquiring after the truth. Take the example of plea bargains cited above: In the inquisitorial system, a guilty plea does not automatically lead to conviction. It is merely one more piece of evidence. (The inquisitor might decide to ignore the plea if he suspects, for instance, that the pleader is trying to protect somebody else, or is insane, et cetera.)

In practice, however, you have to choose an actual human being to find out the truth, and how is that likely to go?

There is a reason why we (or at least I) hear bad connotations in the word inquisition. It reminds us of the Spanish Inquisition, a time when the system went awfully wrong. The inquisitors, as it happened, were altogether more concerned with pleasing Ferdinand and Isabella than with ascertaining the truth. And they subscribed to the notion that you can get any truth that suits you; it’s just a matter of how you ask.

So an inquisition into truth can become corrupt. Notice, however, that this is a problem common to both the inquisitorial and the adversarial systems: The judiciary must be absolutely independent from political pressure. That includes not only the executive branch of government but also the mob. Ask black people in the Jim Crow South how well the adversarial system worked for them.

The subtler but more profound critique of the inquisitorial system has to do with what Richard calls “over-confidence in the expert”:

If you have a trained magistracy, ostensibly expert in discerning and charged with discovering the truth, there is the risk of over-valuing their work.

And why would that be a problem? Because experts are experts precisely because they have seen lots and lots of cases. And so they are likely to slip into a thought process that says “Hmm, this case X reminds of Y, and I should be consistent so I will…”. No. The facts (truth) of case X must be considered on its own merits alone.

Perhaps experts are less able to do that. As Richard says,

Justice is the art of espying the exception.

Which leaves us, unfortunately, where we started: with questions.

Who, expert or lay, is more likely to espy the exception?  Who is most likely to be free and fair? Which process — a search for truth or a struggle that reveals it — is more just?

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Individuals, tribes & classes

How do genuine liberals (as correctly defined) view the world? As a collection of individuals.

How do conservatives view it? As a collection (clash?) of cultural communities.

Socialists? Economic communities (or blocks).

Communists? Classes.

Fascists? Tribes, nations or races.

People have drawn many diagrams to depict the political spectrum. But they don’t make sense to me. So I drew my own (in the new Google Draw. Try it.) Here it is:

This way of looking at the spectrum might help you to explain “left” and “right” to a child, should you ever need to. (More about the historical and arbitrary origins of “left” and “right” in a subsequent post.)

If you view the spectrum not as a matrix or a line but as a loop or circle, things become clearer. Liberalism then reveals itself to be not the “place in the middle,” the “split-the-difference” no-man’s-land of compromise and moderation, but the extreme and radical opposite of collectivism, which includes everything from Nazism to Communism.

Yes, Liberals care most about freedom, whereas collectivists tend to care more about “equality” (insofar as it pertains to the group of interest to the respective collectivist — ie, the class or the tribe.)

But the debate is not merely about the desired outcomes — freedom vs equality — of policy. It goes deeper. It is a debate about the unit of analysis. What — or rather whom — do we care about? What matters?

As a liberal, I instinctively choose individuals. People matter.

Now, it’s easy to lampoon this instinct. The caricature usually involves a quote from Margaret Thatcher, when she allegedly said:

There is no such thing as society. There are only individuals.

Here is what she actually said. As you can tell, it doesn’t come close to Ayn Rand in shrillness.

Individuals do form families and other groups, and liberals do care about those. But those are groups that individuals volunteer to form. (By contrast, I never volunteered to be American, German or middle class. Most of the time, I’m not even sure what those group memberships are supposed to mean.)

Let’s talk about Arizona

Enough prologue. Let’s talk about the new Arizona law against illegal immigration.

In my article in the new issue of The Economist, I try to analyze how the law and the backlash against it might affect American politics. My editor wrote a “leader” (ie, opinion editorial) to go along with it. And both of those pieces follow a short piece I whipped up the other day, when the law was first signed.

Now, it may not surprise you to learn that, in addition to the hundreds of, shall we say, passionate comments on our website, I have also been getting reader letters.

I have already regaled you with you my cavalier amusement at the tone of the American reader letters I get. But I must say, the mail bag of late has taken another turn for the worse. I leave it to your imagination.

So let’s step back and try to understand why I, and The Economist, would instinctively be

  • for more open borders,
  • for more liberal migration laws,
  • for freer movement of people.

Is it because I love Latinos, as some of my reader letters suggest (albeit in a different vocabulary)?

Well, yes it is. I do love them. Though no more so than I love Eskimos, Wasps and Tibetans. I love them all, but only as individuals.

There was a time, not all that long ago, when only diplomats carried passports. Other people moved freely where they wanted to go. Just read Casanova’s memoirs. 😉

This sounds like an ideal world: Free individuals and families moving wherever they want to go, with a minimum of hassle (besides the natural stress of moving).

I admit that this was before some countries had welfare states which might attract poor migrants and thus be overwhelmed. This issue — whose taxes pay for whose benefits in a given land — must be addressed.

And I also admit that this was before terrorists (who already existed) had access to weapons of mass destruction. So this issue — how do we keep murderous migrants out — also must be addressed.

On the other hand, I do not admit that immigrants in general, whether legal or illegal, are more likely than natives to commit crimes, because research proves this not to be true.

Garden of Earthly Delights

So what would a liberal Utopia look like?

All individuals anywhere would be free to move to and live where they please, within basic and minimal parameters to address the two issues above.

Americans, for example, would be allowed to go to Latin America or Europe to pursue careers, loves and dreams. Latin Americans and Europeans would be just as free to come to America to do the same.

This would apply to the “high-skilled” migrants, such as Indian graduates from the Indian Institutes of Technology (IIT), probably the best university system in the entire world today. And it would apply equally to “low-skilled” migrants, because they, too, have contributions to make and dreams to pursue.

Is this realistic? Probably not.

But is it desirable?

That depends whether you view the world largely as tribes, classes or, as I do, individuals.

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American Caligulas

Alan Dershowitz

It is fundamental to a free society that its citizens be able to read the law and conform their conduct to it.

So says Alan Dershowitz, a Harvard law professor and famous lawyer, in his foreword to “Three Felonies a Day,” a new book by Harvey Silverglate. (Silverglate talks about his book at the Cato Institute in the clip below).

So this is yet another way in which simplicity, one of my recurring themes on The Hannibal Blog, is a prerequisite for freedom, another thread of mine. By contrast, complexity and vagueness, by entrapping citizens, can lead them into serfdom.

America’s founders, Dershowitz reminds us, used to say that a criminal statute had to be so clear and simple that it could be understood when read by a person “while running.” They believed that, if people struggle to understand what they are supposed to do or refrain from doing, society is no longer free in any meaningful sense of that term.

Caligula

The notorious Roman emperor Caligula also understood this, but had a different motivation. Cassius Dio (LIX, 28.8), tell us that

after enacting severe laws in regard to the taxes, he inscribed them in exceedingly small letters on a tablet which he then hung up in a high place, so that it should be read by as few as possible and that many through ignorance of what was bidden or forbidden should lay themselves liable to the penalties provided…

Another man who understood and used this insight is Lavrenti Beria, Stalin’s head of the KGB, who famously said

Show me the man and I’ll find you the crime.

The Road to American Serfdom

Is America today like Caligula’s Rome or Beria’s Soviet Union? No, at least not yet, and nobody is suggesting that it is.

But the fact that we need to spell this out should itself cause alarm. For this might be the road we’re on. (We already found that the Soviet Union during the Gulag was the only society with a higher incarceration rate than America today. This is not the sort of peer group that one wants to be compared to!)

The reason for worry is the increasing and extreme vagueness of America’s federal and state statutes. Sometimes, in addition to being vague, statutes also contradict other statutes, so that a law-abiding citizen in certain situations has no legal option to act at all! As Dershowitz writes:

The very possibility that citizens who believe they are law-abiding may, in the eyes of federal prosecutors, be committing three federal felonies each day … threatens the very foundation of our democracy…. when the executive branch, through its politically appointed prosecutors, has the power to criminalize ordinary conduct through accordion-like criminal statutes, the system of checks and balances breaks down…. [We are] … in danger of becoming a society in which prosecutors alone become judges, juries and executioners because the threat of high sentences makes it too costly for even innocent people to resist the prosecutorial pressure.

What he is referring to there is the trend among even innocent defendants today to plead guilty to “reduced” charges rather than risk a trial with draconian sentences in the event of conviction. Because that’s what American prosecutors are wont to do: to pile charges upon charges until the victim breaks down in fear, and tells prosecutors whatever they want to hear in return for a deal, so that the prosecutors can then go after another and more valuable target.

Silverglate, in his book, describes case after case of this so-called “laddering” by prosecutors. (Silverglate’s task is difficult because, by definition, the evidence is not so much in trial records but in the plea bargains that did not lead to trials.)

So let’s talk …

About American prosecutors

Unlike Beria or Caligula, they may genuinely believe that they are on the side of good rather than evil. (Technically, the congressmen who write the laws are the equivalents of Caligula; the prosecutors who manipulate the laws’ vagueness are the Berias.) As Dershowitz writes,

The men and women of zeal who use elastic criminal statutes to prosecute citizens who they believe are exploiting or endangering other citizens may in fact be doing God’s work, but they are not doing Jefferson’s work or Hamilton’s work or Madison‘s work or the work of the other founders of our secular nation and Constitution. They should leave to God (or public opinion) the punishment of immoral people who do not violate the explicit terms of criminal statutes.

America, of course, is unusual among liberal democracies in several respects:

  1. Its attorneys general are political appointments by the president. They have two distinct functions. One is to be loyal and trusted advisers to the president. The other, in theory, is to be impartial prosecutors. Other democracies split these two roles into two separate jobs. America does not.
  2. Being a prosecutor in America is very often merely a stepping stone toward higher office, such as senator or congressman or governor, so prosecutors must … win, win, win. (Remember Spitzer?) Never mind the “truth” or “justice”.
  3. At the state and county level, Americans often elect prosecutors and even judges. This is because they believe that democracy is always synonymous with freedom and refuse to examine this idea. In other democracies, prosecutors and judges are civil servants. In America, many of them campaign for re-election, raise money from voters, compete with each other to be “tough on crime” and so on.

As Dershowitz writes,

Our penchant for voting on everything has reached laughable proportions in Florida, where even “public defenders” must run for office. I can only imaging what the campaign must be like.

The result, of course, is a severe and growing threat to liberty. This is a non-partisan issue, neither of “the left” nor of “the right.” Americans (whether on FOX or MSNBC) must stop evoking “freedom” as a soundbite and political cudgel and start thinking about what it actually means and requires.

Watch Silverglate:


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The best tax for America

It is Tax Day again in America and some people left their returns to the last minute (as you can see on this photo, which I took in Los Angeles yesterday.) So I’ll take this occasion to muse about the relationship between America’s tax system and freedom.

One year ago today, I offered some “tax day thoughts on complexity in American life.” The gist of that post was that the complexity of America’s tax system, not the rate of taxation, is what harms freedom in this country. Contrary to what you might think if you go to Tea Party rallies, we are not overtaxed, we are badly taxed.

But I did not offer a better — meaning simpler — alternative system. In this post, which I expect to be controversial, I want to do that. (As always, keep in mind that the views expressed on The Hannibal Blog are mine alone, not necessarily those of The Economist.)

There are many proposals out there for a simpler and more efficient tax system: A flat tax, value-added tax, et cetera. I won’t review them all, but instead pick the proposal that I consider simplest, cleanest and boldest.

The Idea

It is the so-called FairTax Plan.

Part of its strength (ie, simplicity) is that I can describe the entirety of America’s proposed tax code in a few short lines:

  • America’s existing income and other taxes would be abolished. (Not cut, but eliminated!)
  • The IRS and America’s other organs of proto-authoritarian oppression would also be abolished.
  • Instead, all Americans would pay a national sales tax, as most Americans already pay state or local sales taxes.
  • In addition, all Americans would get a prebate — ie, at the beginning of each year, everybody gets a check.

And that’s it!

The drafters of the proposal think that the rate of this new national sales tax needs to be about 23% to provide the same revenues that we now get from the income tax. It might be 28% or 19%. I’m not the least bit interested in that.

The idea is that we raise as much money as we would otherwise raise through an income tax. As it happens, we would need to collect quite a bit less than we currently do, because we would no longer incur the enormous costs of the IRS bureaucracy, auditors and accountants!

Now for the discussion of the advantages and alleged disadvantages of this new tax system:

Advantages

I think the advantages are self-explanatory:

  • You would keep your whole pay check. Ie, your take-home pay would spike right away.
  • You would not have to file a tax return.
  • No more record-keeping! You no longer maintain mountains of paper for wages, the cost basis of your investments, mortgage deductions, childcare and nannies, et cetera et cetera.
  • IRAs, 401(k)s, Roth IRAs, Keoghs…..: You can throw them all into the trash, because all your investments are by definition untaxed.
  • Thanks to your annual prebate (which gives you a certain amount of subsequent sales tax “back”), a portion of your consumption is untaxed, too.
  • But beyond that, all your consumption is taxed, thus making you think twice about frivolous and unnecessary consumption, which reduces your carbon footprint and clutter.
  • Whenever you do consume (either goods or services), you can see the tax you pay on the receipt, in the clearest and simplest manner possible.
  • All this amounts to: transparency (replacing opacity) and freedom (replacing anxiety and bureaucracy).

Criticism

There is only one major criticism of this sales tax, but it is a big one, so I want to concentrate on it.

The disadvantage is that this sales tax, like any consumption tax, at first glance appears to be regressive.

In the current system, rich people pay not only absolutely but relatively more of their income than poor people. (There is a reason why I italicized that phrase. Keep reading.) In the new system, poor people (who might need to spend, rather than save, all their income) would seem to pay relatively more of their income than rich people.

And this seems unfair.

Rebuttal

I’ve pondered this for some time. As you may remember, I am a liberal, correctly defined (ie, libertarian but not loony). And I do worry about inequality, which is inevitable in a free society to some extent but in excess (ie, in America) harms freedom.

Part I

My first response to the above criticism is that our current income tax (ie, that which the FairTax proposes to replace) is not fair either!

Warren Buffett has famously explained how he, as a mega-rich investor who does no “tax planning”, pays a lower tax rate than his secretary, who lives off her meager pay check.

Fairness, it turns out, is not about progressive tax brackets. If you have progressive brackets but exceptions to everything (= “complexity”) you get not fair but unpredictable and arbitrary taxation.

So if you do care about fairness, first join me in stipulating that our current system must go.

Part II

My second response is to ask you to re-examine, as Socrates might, what wealth is.

Is it:

  1. to have vast stores of potential spending power (ie, paper statements of bank balances that produce income)?
  2. or to consume vast amounts of resources, human and natural, with your own or others’ (borrowed) wealth?

Our current conventional wisdom says 1. So if income is the definition of wealth, then a consumption tax is regressive.

I propose that the correct definition is 2. So if consumption is the definition of wealth (as it used to be for almost all of human history), then a consumption tax is fair.

Example: Croesus and Diogenes

Let me illustrate that point playfully by reviving two characters who have previously featured on The Hannibal Blog:

  • Croesus, the ancient king of Lydia who gave us the phrase “rich as Croesus”, and
  • Diogenes, the Greek cynic who chose to live in a barrel (and who is a hero of mine).

Let us assume that Croesus and Diogenes are equally rich in our Number 1) definition: Both get huge amounts of income from assets (Croesus from tribute, Diogenes from the equivalent of a trust fund set up by his benefactor, a wealthy Athenian).

Now let’s think about how the FairTax would treat these two rich guys:

Both Croesus and Diogenes would start every year by getting their prebate check. Their basic cost of living, their subsistence, is thereby pre-paid.

Diogenes can buy the few things he needs (dog food, loin cloth, etc) and his prebate covers the sales tax on these items. He pays no net tax at all, in other words.

(Meanwhile, he has millions in his bank account, sitting idle for him, but being lent out to other Athenians to grow the economy.)

Croesus is different. He sneers at his prebate check, which barely covers the sales tax on a single slave, and spends it in a day. Then he keeps spending: Gold, silver, jewels, women, palaces, feasts, galleys, ….

He consumes immoderately and to the detriment of his planet. But he is free to do so (freedom is one of our goals), and nobody even looks askance at him. However, each time he spends, he pays tax, and he knows exactly how much (transparency and simplicity are our other goals).

The years go by, and Diogenes donates his potential (= hypothetical) wealth to an anonymous Athenian. His wealth has been helping the economy all these years, because it was being lent to entrepreneurs. But now the Athenian recipient spends the wealth. And as he does so, he pays tax.

The taxes on Diogenes’ money were therefore only delayed, until such time as his wealth turned from potential into actual consumption. The taxes on Croesus’ money were immediate, because he chose to spend.

Every single dollar in the economy is therefore taxed, but only when it becomes consumption.

At a very fundamental level, this is how it ought to be. We should not calculate equality based on income but on consumption. If I have more than you but live more modestly than you, I should not pay more than you. This is the mental switch I ask you to attempt.

I believe it is fair that Croesus pays lots of taxes all along, but that Diogenes, who never consumes much, does not.

Effect on politics

A final thought about what the FairTax would do to our political discourse and climate.

Our current tax system is as complex as it is because it is the tote bag for our politicians: Any weird political give-away — to owners of gold mines or race horese, homeowners or Prius drivers…. — gets dressed up in Congress as a “tax break” and stuffed into the code. Each time that happens, society as a whole loses, but nobody notices because, well, the tote bag is too messy to see any individual item in it.

Complexity, in short, is the tool politicians and lobbies use to hide things from our attention.

If we switch to the FairTax, the tote bag is dumped and replaced by two and only two numbers:

  1. rate of sales tax, and
  2. the amount of the prebate check

Every American could understand this system and therefore participate in our debates about government, funding and fairness.

Should more people be exempt from all taxation? Fine, raise the prebate amount.

Is government too big? Fine, cut the sales-tax rate.

But what what if we still want to help particular groups of people? Earthquake victims or people whose homes are being foreclosed, for example.

Today, we would stuff more gibberish into our tote bag and nobody would notice the cost.

Under the FairTax, we could still help these people, but we would no longer do it through the tax code. We would pay these groups actual cash.

This, of course, would be transparent and easy to measure. Once again, we could all debate whether home owners in foreclosure actually deserve this cash (perhaps not) or whether earthquake victims do (probably).

We would understand what’s going on in our country as well as in our own finances, and understanding is the beginning of freedom.

A shocking thought, isn’t it?

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