Book Reviews

BOOKS Keeping the People's Liberties by John 1. Dinan University Press of Kansas • 1998 • 259 pages • $35.00 Reviewed by George C. Leef T he title of this work comes from a 1792 essay by James Madison, "Who Are the Best Keepers of the People's Liberties?" How best to secure the rights of people was a ques tion that bore heavily on the founders and still bears heavily on us today. Wake Forest Uni versity professor John Dinan examines the success-and lack thereof-of three different political regimes in their ability to "secure the rights" of citizens. The book is a valuable his torical investigation, but is sadly disappoint ing in that it fails to give much help to those who search for political arrangements that will really secure our rights and not trample on them. The first of the regimes Dinan examines is republicanism, that is, a system of elected representatives. The author finds that in the early days of the nation it was widely believed that elected representatives were best suited to the job of protecting the rights of the people.

"[O]f the various public officials who might be charged with this responsibility," Dinan writes, "legislators were thought to be most capable of representing the popular under standing of rights; legislative'assemblies were considered the proper forum for deliberating about the content of rights; and statutes were seen as providing the most effective means of securing their protection." Neither judges nor the general public were widely looked to as protectors of rights. How well did republican institutions pro tect rights? Not too badly, Dinan concludes. Studying a limited number of state legisla tures (principally Massachusetts, Virginia, Michigan, and Oregon), he shows that there were some signal successes achieved through legislation-for instance, freedom from min57 isterial taxes. Dating back to the seventeenth century in both Massachusetts and Virginia, taxes had been levied for the support of the official church. The battle to liberate people from such taxes was won in the legislatures, with the courts fighting a rearguard action on behalf of the vested interests that wanted the taxes to continue.

Another intriguing case Dinan presents is the controversy over protecting citizens against unlawful searches and seizures. Today we think of such protection as a judicial func tion of relatively recent origin, but that is far from the case. In the nineteenth century the problem of illegitimate searches and seizures by police and officials was much on the minds of the people, and the legislatures acted. The legislative remedy was to make public offi cials liable for wrongful invasions of individ ual liberty and property. It was not until the mid-twentieth century that the courts entered the scene with the controversial exclusionary rule, which forbids the use of evidence obtained illegally. In the latter half of the nineteenth century, a growing dissatisfaction and impatience with legislatures led to the rise of the populist movement. The populists argued that legisla tures were too beholden to special-interest groups and their own interest in re-election to do a good job of securing the rights of the people. Accordingly, many advocated popular initiatives and referenda as a means of bypassing or overriding the legislature.

In some instances, it worked. In 1921 a statute in Massachusetts established a censor ship board to license movies that did not con tain "indecent" material. The people promptly repealed the law by referendum in 1922. The problem with populism is that it can result and frequently has resulted in laws that are incompatible with any respectable theory of rights. Dinan reports that when the Oregon legislature declined to enact a workmen's compensation system, "the people resorted to the initiative process to secure their rights." Compelling employers to obey a government edict on the treatment of injured workers is not a matter of "securing rights," however. It is a matter of one group's using the power of the state to get what it wants, overriding the 58 THE FREEMAN/IDEAS ON LIBERTY • SEPTEMBER 1999 freedom of others. This is a repeated failing in the book: Dinan does not distinguish between true rights and governmentally decreed pseudo-rights.

Finally, Dinan looks at judicial protection of rights. This is also a mixed bag. Sometimes courts have struck down laws that interfered with rights, as in the "substantive due process" decisions of the pre-New Deal Supreme Court. On the other hand, courts have often been guilty of infringing rights in their quest for "fairness." The Oregon Supreme Court ruled that shopping malls were required to allow people to solicit peti tion signatures. This, of course, is not "secur ing a right," but rather violating the rights of mall owners. Dinan tamely concludes that his analysis "suggests that an ideal regime of rights pro tection would combine the advantages of each of these institutions." Given the sorry record of all three, one might better conclude that all political institutions are dangerous to and have permitted a steady erosion of the peo pie's liberties. D George Leef is director ofthe Pope Centerfor High er Education Policy at the John Locke Foundation and book review editor of The Freeman.

The Structure of Liberty: Justice and the Rule of Law by Randy E. Barnett Oxford University Press • 1998 • 368 pages • $29.95 Reviewed by Bruce L. Benson I n The Structure ofLiberty, Boston Univer sity law professor Randy Barnett identifies the fundamental problems that must be recog nized in order to create a proper foundation for society: the problems of knowledge, inter est, and power. Those problems arise because both physical resources and human abilities are scarce, because altruism is limited, and because humans are vulnerable. They mean that individual conduct must be constrained in some ways or else society will collapse. But just as "good" buildings require different floor plans depending on their purpose, the structure of a "good" society also depends on the objectives of the society's occupants. Barnett attempts to describe the structure of a society that will allow "each person to pursue [his subjectively determined perception of] happiness, peace, and prosperity while acting in close proximity to others." Such a society requires justice and the rule of law, as the sub title of the book suggests, so Barnett focuses on the necessary components of the structure of liberty in the face of the problems of knowledge, interest, and power. The result is an insightful, often brilliant presentation that deserves serious attention from those of us who share this vision of the good society.

Barnett is not attempting here to convince modern liberals or modern conservatives to become classical liberals or libertarians. Instead, he is writing to classical liberals and libertarians who already share his vision in an effort to show them what the structure of lib erty requires. Convincing people that particu lar laws or policies are undesirable will have little long-term benefit if we do not have insti tutions of governance that sustain better rules and policies. Barnett argues that those institu tions must be structured to handle the prob lems of knowledge, interest, and power. Other political philosophers, of course, have wrestled with the problem of structuring liberty, but most who have preceded Barnett have not focused adequately on power. By bringing all three problems into the analysis Barnett is able to offer new insights regarding the kinds of institutions that are likely to pro duce justice and the rule of law in support of liberty. He questions some widely accepted principles of governance long cherished by classical liberals and proposes replacements.

Perhaps the best examples of this are in chapters 12 and 13, where Barnett turns to the problem of enforcement abuse and the nature of effective constitutional restraints on power. He challenges the argument by John Locke and other classical liberals who contend that a coercive monopoly of power is necessary to handle the problem of enforcement abuse. The "single power principle" has led classical liberals to focus on designing constitutional rules to shackle the monopoly in various ways. Barnett explains that the single power principle is itself a primary source of abuse and that the rule of law is not likely to be maintained even with such constraints as peri odic elections and checks and balances. Furthermore, the single power principle is inconsistent with other liberal tenets. For instance, as Barnett explains, "Some think that law enforcement and adjudication are so important that we must make an exception to the background right of freedom of contract and permit a coercive monopoly to provide such services. . . . [But] the more vital a good or service is, the more dangerous it is to let it be produced by a coercive monopoly."

Barnett also points out that the reality of Western legal tradition is one of polycentric law, not monopolized law, and the competi tion between legal jurisdictions is actually the source of much of what is good ahout our modem legal system (many aspects of which are being undermined by increasing central ization of law). The rule of law, he argues, actually requires a polycentric constitutional order. A brief review cannot possibly do justice to Barnett's analysis. The two chapters devoted to the importance of the rule of law are truly outstanding, but I would not hesitate to say the same about many other of his arguments. This book makes an important contribution toward a more complete understanding of the structure that must underlie a society in which individuals can live in peace and prosperity. I strongly recommend The Structure ofLiberty to anyone who seeks such a society. 0 Bruce Benson is De Voe Moore Distinguished Research Professor at Florida State University.

The Lost Literature of Socialism by George Watson The LutterworthPress • 1998 • 144 pages • $50.00cloth; $30.00paperback Reviewed by Antony Flew T he literature of socialism is lost only in the sense of not having been read for a very long time. George Watson has been BOOKS 59 rereading this literature as a professional literary critic, with strong interests in both political affairs and the history of ideas. Many of his findings are astonishing. Perhaps for readers today the most astonishing of all is that "In the European century that began in the 1840s, from Engels' article of 1849 down to the death of Hitler, everyone who advocat ed genocide called himself a socialist and no conservative, liberal, anarchist or independent did anything of the kind." (The term "geno cide" in Watson's usage is not confined to the extermination only of races or of ethnic groups, but embraces also the liquidation of such other complete human categories as "enemies of the people" and "the Kulaks as a class.") Although Watson himself unfortunately never defines the key word "socialism," he is apparently following throughout the usage of the old British Labour Party. From its founda tion, it proclaimed itself a socialist party and stated its aim in Clause IV of its constitution thereafter printed on every membership card as being "the public ownership of all the means of production, distribution·and exchange."

Watson distinguishes three periods in the history of this socialist idea. The first, the Age of Conception, runs from the 1840s to the Bolshevik coup of 1917; the second, the Age of Fulfilment, continues until the Communist seizure of power in China in 1949; the third, the Age of Decline, continues until the fall of the Berlin Wall in 1989. During the Age of Conception, many were attracted to socialism precisely because they already saw it as what Watson calls a "Tory project," a project necessarily involving rule by an irresponsible elite. Some of these elit ists, such as the science fiction writer H.G. Wells and the dramatist Bernard Shaw, lived long enough into the Age of Fulfilment to welcome this aspect of the realization in the USSR of the socialist vision. Before World War I, other socialists, such as the novelist Jack London and the psychologist Havelock Ellis, saw socialism as leading both fortunate ly and necessarily to the triumph of the white races over the black and the brown.

For those of us born before World War II, the most interesting section of the book is that 60 THE FREEMAN/IDEAS ON LIBERTY • SEPTEMBER 1999 dealing with the intellectual relations between the teachings of Adolf Hitler and those of Marx and his professed followers among Hitler's contemporaries. In his autobiography, and in recorded conversations with intimates among his own followers, Hitler said such things as, "I have learned a great deal from Marxism, as I do not hesitate to admit," that "the whole of National Socialism is based on Marx," and that without racist commitments his own political movement "would really do nothing more than compete with Marxism on its own ground." Hitler was not in these statements saying that he either was or ever had been a Marxist. From his first political activity, he had always been opposed to communism, but that was not because it was socialist, but because it was internationalist. Hitler, although born and raised in Austria, had always been a dedicated German nationalist.

Even those who are aware that Hitler's party was the National Socialist German Workers' Party have doubted the sincerity of its socialist professions. This is in part because Hitler, upon coming to power, refrained for tactical reasons from launching an immediate and extensive program of state takeovers of private industries, and in part because these skeptics have not enjoyed the benefits of Watson's rereadings of the lost lit erature of socialism. His chapter on "Marx and the Holocaust" begins by telling us that Rudolf Hoess, com mandant of the infamous Auschwitz death camp, recalled in his memoirs that even at the height of the Nazi-Soviet war of 1941-45, his colleagues had respected the socialist exam ple of an exterminatory program based on forced labor. Watson then proceeds to deploy further evidence of Soviet influence on the Nazis and to cite other relevant passages from the works of Marx, Engels, Lenin, and other socialist luminaries, all presenting candidates for or possible methods of genocide. The con nection between socialism and genocide could hardly be made any clearer.

From all this, Watson concludes that "it is becoming ever more probable that it was not just the idea of genocide that the Nazis owed to Marx and the Marxists, but its detailed practice too, not excluding camps and gas chambers. The shadow of the socialist idea grows longer and longer." D Antony Flew is Emeritus Professor of Philosophy, University ofReading, England. Freedom to Trade: Refuting the New Protectionism edited by Edward L. Hudgins Cato Institute • 1997 • 88 pages. $10.00 paperback Reviewed by Charles K. Rowley F ree trade against protectionism is one of those few issues over which economists have reached consensus. Free trade attracts the vote of the very large majority of econo mists, whereas protectionism typically attracts the support only of those who are paid mouthpieces for the special interests. Yet this remarkable consensus belies the facts of the international trade reality. The guns of the economists, like the French guns of the Mag inot Line, appear to point in the wrong direction. International trade is highly regulat ed; and protectionism dominates free trade despite the cogent economic arguments against it.

The book under review represents a sterling effort to carry the case for free trade forward to the general public in language stripped of the jargon of economics. It is written well and cogently argued. Chapter one, written by Edward Hudgins, director of regulatory stud ies at the Cato Institute, focuses attention on the fundamental freedom to trade, correctly stressing that the individual trades and not the nation. Although the concept of comparative advantage strangely is never mentioned, the classical case for unilateral free trade is out lined, briefly but accurately, both in terms of static specialization and in terms of dynamic market discovery criteria. The second chapter, written by Bruce Bartlett, briefly reviews the trade history of the Netherlands, Great Britain, the United States, Japan, and Germany, and succinctly demonstrates the close correlation between periods of relative free trade and periods of relative prosperity in each of these nations.

The aim of this chapter is to show that gener ally nations rise to power and wealth through free trade and decline when protectionism takes over. In my opinion this case holds least well for the United States, whose dramatic advance between 1875 and 1900 coincided with Republican high-tariff policies justified by infant-industry rhetoric. Of course, it is the elementary post hoc ergo propter hoc logical fallacy to conclude, as some do, that protec tionist tariffs were the cause of our economic growth. It is also questionable whether rising German economic power between 1871 and 1939 was based on free trade policies. It is always satisfying when the facts fit our predilections; equally, however, it is unwise to force the fit. Chapter three, written by Hudgins, attempts to refute the myth of the "race to the bottom," which charges that U.S. free trade policies result in a loss of jobs to other 'countries and in declining real wages in the United States.

Using simple charts to excellent effect, Hud gins makes a strong case that recent job cre ation in the United States has far surpassed that of its major international rivals and that real wages in the United States, correctly measured, have increased at approximately the same rate as underlying productivity. Hud gins also fingers the explosive growth of gov ernment in the United States over the past three decades as the major single factor depressing productivity and obstructing the growth in real wages. Undoubtedly, this is the best chapter in the book, and one that should be read by any intelligent adherent to the intellectually confused trade policies of Ross Perot and Pat Buchanan. The next chapter, also written by Hudgins, changes direction into a surprisingly vigorous defense of recent trade treaties entered into by the United States, arguing that they do not infringe national sovereignty. I have no dis pute with the author in this judgment. Howev er, I contest his view that certain of these treaties are supportive of free trade. In partic ular, the regional trade agreements, epito mized by NAFTA, divert U.S. attention away from genuinely multilateral trade agreements; for example, excessive attention to NAFTA BOOKS 61 almost aborted the Uruguay Round. they also provide a regulatory conduit through which the forces of protection obstruct the flow of imports into the United States. The post Uruguay shift from the informal General Agreement on Tariffs and Trade to the much more bureaucratic World Trade Organization as an enforcement agency is also not a change with which genuine free traders should be enamored.

Among the remaining essays, the best is chapter eight, written by James Dorn, provid ing a compelling analysis of the relationship between trade and human rights based upon a study of the People's Republic of China over the period 1978 to 1997. Dom makes an elo quent case in favor of keeping trade open between the United States and China as a basis for promoting liberty in the latter coun try. This is a refreshing change from the self serving arguments in favor of such open markets typically advanced by U.S. export interests. Edited volumes typically-suffer from unevenness of quality and lack of cohesive ness. This monograph, despite its brevity, is no exception. In addition, the monograph is weak in its use of public-choice analysis, which is unfortunate since public choice goes far to explain why the guns of the Maginot Line indeed point in the wrong direction. Nevertheless, I recommend this book to anyone who is eagerly searching for a short volume capable of explaining in nontechnical language the case for free trade and the argu ments against trade protection. 0 Charles Rowley is a professor of economics at George Mason University and general director ofthe Locke Institute.

The Roosevelt Myth by John T. Flynn Fox & Wilkes. 1998 • 437 pages. $24.95 cloth; $14.95 paperback Reviewed by Lawrence W Reed F or every thousand books written, perhaps one may come to enjoy the appellation 62 THE FREEMAN/IDEASON LIBERTY • SEPTEMBER 1999 "classic." That label is reserved for a book that through the force of its originality and thoroughness, shifts paradigms and serves as a timeless, indispensable source of insight. Such a book is The Roosevelt Myth by John T. Flynn. First published in 1948, Flynn's definitive analysis of America's 32nd presi dent was reissued last year in a 50th anniver sary edition by Fox & Wilkes, with a new foreword by Ralph Raico. It is the best and most thoroughly documented chronicle of the person and politics of Franklin Delano Roo sevelt. John T. Flynn was a successful and influen tial journalist with a reputation for candor and first-rate research. He was neither a shill for Big Government nor a puppet of Big Busi ness. He railed against both when they con spired to undermine the Constitution, erode our freedoms, or suck the nation into foreign entanglements. He saw right through the pub lic relations job depicting FDR as a valiant crusader for noble causes.

Was FDR a man of principles, a man guid ed in his thinking by a fixed set of lofty and noncontradictory ideas? Far from it, Flynn proves, in what is an important theme of the book. FDR's thinking and behavior show him to be a real-life exemplar of an old Groucho Marx wisecrack: "Those are my principles. If you don't like them, I have others!" Running against Herbert Hoover in 1932, Roosevelt campaigned as an advocate of lim ited government, even (correctly) accusing Hoover of "reckless and extravagant spend ing" and of thinking "that we ought to center control of everything in Washington as rapid ly as possible." After being elected, however, FDR promptly championed reckless and extravagant spending and tried to centralize just about everything in Washington. He did so not because he had become a scholarly sta tist intellectual, but simply because he was an opportunist capitalizing on the public's demand for "action."

Yet the depression that FDR inherited was still very much with us after two terms in the White House. He zigged and zagged from one Rube Goldberg policy contraption to the next. His elitist brain trusters covered for his failures and cooked up new schemes, in what Flynn called "the dance of the crackpots." Flynn's critique of the Mussolini-inspired New Deal's two main hallmarks-the Nation al Recovery Administration (NRA) and the Agricultural Adjustment Act (AAA) remains one of the most devastating ever penned. The "crazy antics" of the NRA put a New York tailor behind bars for pressing a suit of clothes for 35 instead of 40 cents. With the AAA, "we had men burning oats when we were importing oats from abroad on a huge scale, killing pigs while increasing our imports of lard, cutting corn production and importing 30 million bushels of corn from abroad." Flynn's view of FDR's coterie of planners was right on target, each "a kind of little man who will tell you that he can't hit a nail straight with a hammer, but who loves to spread a big country like the United States out before him on top of a table, pull up a chair and sit down to rearrange the whole thing to suit his heart's content."