Then and Now

P.S. Huff

From Shorpy comes this charming photograph of the New York "City Hall subway station," c. 1904:

It's a lovely structure. Evidently this is what it looks like today (see the comments section).

"The Best Mind of the 18th Century"

P.S. Huff

Benjamin D. Wiker on Christopher Hitchens.

Citizens United v. FEC Decided

P.S. Huff

The U.S. Supreme Court has decided Citizens United v. FEC; the full opinion may be found here. The following is an abridged version of the syllabus:

Citizens United v. Federal Election Commission, Docket No. 08-205.
    Held:
       1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin.
       2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b's restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203's extension of §441b's restrictions on independent corporate expenditures is also overruled.
       3. BCRA §§201 and 311 are valid as applied to the ads for Hillary and to the movie itself.
       Reversed in part, affirmed in part, and remanded.
    KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part IV. ROBERTS, C.J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.

Rothbard on J.B. Say's Methodology: A Critique

P.S. Huff

In his celebrated Austrian Perspective on the History of Economic Thought, Murray Rothbard casts Jean Baptiste Say as a proto-praxeologist who anticipated the methodology of Ludwig von Mises by more than a century. Having read and re-read the relevant part of Say's treatise, I find this a curious interpretation.

The disputed text is the introduction to J.B. Say's Traite d'economie politique. As Say saw it, the field of political economy had until recently been marred by a sort of "Simon Says" methodology, with the honorable Condillac, Quesnay, or some similar figure playing the part of Simon. Thus in this science, as in all others, wrote Say, "systems have been formed before facts have been established; the place of the latter being supplied by purely gratuitous assertions." But this science-by-assertion, he insisted, was no science at all: "Political economy has only become a science since it has been confined to the results of inductive investigation," and this was accomplished only upon the publication of Adam Smith's An Inquiry into the Nature and Causes of the Wealth of Nations.*

In this spirit, Say classifies political economy as an "experimental science," like chemistry and physics:

Hence, a twofold classification of sciences; namely, those which may be styled descriptive, which arrange and accurately designate the properties of certain objects, as botany and natural history; and those which may be styled experimental, which unfold . . . the connection between cause and effect, as chemistry and natural philosophy. Both departments are founded on facts, and constitute an equally solid and useful portion of knowledge. Political economy belongs to the latter; in showing the manner in which events take place in relation to wealth, it forms a part of experimental science.

By this, Say presumably meant no more than that political economy was a science that relied on investigation and induction to determine cause and effect.† (No one should accuse Say of advocating political-economy laboratory experiments!) But that is enough to make Rothbard's thesis crumble.

None of this is to deny that Austrians can find common ground with Say's methodology. He urged economic theorists to explain reality not by collecting as many "particular facts" as possible, but by founding general facts upon "such particular facts as have been selected from those most carefully observed, best established, and witnessed by ourselves." He continues:

A new particular fact, when insulated, and the connection between its antecedents and consequents not established by reasoning, is not sufficient to shake our confidence in a general fact; for who can say that some unknown circumstance has not produced the difference noticed in their several results? . . . . In political economy it is a general fact, that the interest of money rises in proportion to the risk run by the lender of not being repaid. Shall it be inferred that this principle is false, from having seen money lent at a low rate of interest upon hazardous occasions? The lender may have been ignorant of the risk, gratitude or fear may have induced sacrifices, and the general law, disturbed in this particular case, will resume its entire force the moment the causes of its interruption have ceased to operate.

Thus, what was important was not so much "to be acquainted with a great number of facts," but to know those that "are essential, and have a direct and immediate influence." These latter facts then had to be viewed "under all their aspects," so that the theorist could "deduce from them just conclusions, and be assured that the consequences ascribed to them do not in reality proceed from other causes." The conclusions so drawn were sound and secure, but (as Say's example suggests) they might break down in some particular cases.

To sum up: While Say's brand of empiricism certainly has some overlap with praxeology, it has obvious differences as well.

Giving the Wish to Learn

P.S. Huff

John Lubbock on education:

The important thing is not so much that every child should be taught, as that every child should be given the wish to learn. What does it matter if the pupil knows a little more or a little less? A boy who leaves school knowing much, but hating his lessons, will soon have forgotten almost all he ever learnt; while another who had acquired a thirst for knowledge, even if he had learnt little, would soon teach himself more than the first ever knew. Children are by nature eager for information. They are always putting questions. This ought to be encouraged. In fact, we may to a great extent trust to their instincts, and in that case they will do much to educate themselves. Too often, however, the acquirement of knowledge is placed before them in a form so irksome and fatiguing that all desire for information is choked, or even crushed out; so that our schools, in fact, become places for the discouragement of learning, and thus produce the very opposite effect from that at which we aim. In short, children should be trained to observe and to think, for in that way there would be opened out to them a source of the purest enjoyment for leisure hours, and the wisest judgment in the work of life.

From The Pleasures of Life (Pocket Classics ed., 1907), 106–07.

I have a hunch that Lubbock was on to something—and that the same situation is before us today. How much of what is learned in the nation's schools is forgotten in the course of a few years? How much of what passes for K–12 education is just an especially agonizing form of babysitting? Particularly with respect to the later years, I have a hard time crediting it with anything but ill effects. A student comes to associate "learning" with useless tasks assigned by establishment bores, and he carries that prejudice with him into adulthood.

A Charming Insight

P.S. Huff

"One of the amusements of idleness is reading without the fatigue of close attention; and the world, therefore, swarms with writers whose wish is not to be studied, but to be read." — Samuel Johnson

From The Works of Samuel Johnson (1834 Am. ed.), vol. 1, 385.

"Judge" and "Judgment" in the KJV's Isaiah 1:17

P.S. Huff

In the King James (Authorized) Version of the Bible, Isaiah 1:17 reads: "Learn to do well; seek judgment, relieve the oppressed, judge the fatherless, plead for the widow." To the modern ear, that is an awkward passage. Seek judgment? Judge the fatherless?

Judge is evidently being used here in the sense of "to do/bring justice to (someone)," and judgment in the sense of "justice." (This reading is in line with all of the more modern translations I checked.) Both uses are unheard of today. Interestingly, though, this may not be a simple case of archaism—perhaps these renderings were always unnatural. The Oxford English Dictionary makes no mention of the first usage, and suggests that the latter was confined to "various biblical uses."

Worth Thinking About

P.S. Huff

Wrote George Santayana:

If consciousness could ever have the function of guiding conduct better than instinct can, in the beginning it would be most incompetent for that office. Only the routine and equilibrium which healthy instinct involves keep thought and will at all within the limits of sanity. The predetermined interests we have as animals fortunately focus our attention on practical things, pulling it back, like a ball with an elastic cord, within the radius of pertinent matters. Instinct alone compels us to neglect and seldom to recall the irrelevant infinity of ideas. Philosophers have sometimes said that all ideas come from experience; they never could have been poets and must have forgotten that they were ever children. The great difficulty in education is to get experience out of ideas. Shame, conscience, and reason continually disallow and ignore what consciousness presents; and what are they but habit and latent instinct asserting themselves and forcing us to disregard our midsummer madness? Idiocy and lunacy are merely reversions to a condition in which present consciousness is in the ascendant and has escaped the control of unconscious forces. We speak of people being "out of their senses," when they have in fact fallen back into them; or of those who have "lost their mind," when they have lost merely that habitual control over consciousness which prevented it from flaring into all sorts of obsessions and agonies. Their bodies having become deranged, their minds, far from correcting that derangement, instantly share and betray it. A dream is always simmering below the conventional surface of speech and reflection. Even in the highest reaches and serenest meditations of science it sometimes breaks through. Even there we are seldom constant enough to conceive a truly natural world; somewhere passionate, fanciful, or magic elements will slip into the scheme and baffle rational ambition.

From George Santayana, The Life of Reason, vol. 1 (1905), 51–52.

Beating the Oxford English Dictionary: "Transpolar"

P.S. Huff

One of the many charms of modern technology is the way it has transformed etymological research. Case in point: I open the Oxford English Dictionary Online and pull up the entry for transpolar, where I find an earliest-attestation date of 1850. "I can beat that," I wager; and turning to Google Book Search, I almost effortlessly find an earlier usage—indeed, one from thirty years earlier. To wit, William Scoresby's An Account of the Arctic Regions with a History and Description of the the Northern Whale-Fishery (1820), 6, 8, 41.

I have contacted the Oxford English Dictionary with the information.

Congratulations to "Tweet" and "Google"

P.S. Huff

The American Dialect Society has named tweet word of the year (2009) and google word of the decade (2000–09).

Better choices, I dare say, than TIME's selection for person of the year. Of course, I continue to think Centanium should have been word of the decade...

Marshall's Statutory Construction in Marbury v. Madison

P.S. Huff

Chief Justice Marshall's statutory construction in Marbury v. Madison, 5 U.S. 137 (1803), has been fiercely criticized. Referring to the mandamus provision of § 13 of the 1789 Judiciary Act, he wrote:

This, then, is a plain case of a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,

Whether it can issue from this court.

The act to establish the judicial courts of the United States authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'

The secretary of state, being a person, holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.  [Marbury, 5 U.S. at 173]

Marshall here reads the mandamus provision not as a simple grant of remedial power, but as a grant of jurisdiction. This seems a rather strained interpretation, and some bold cynics have accused Marshall of deliberately misreading the statute in order to provide the Court with a safe opportunity to entrench the still-nascent practice of judicial review. (Had the Court adopted a purely remedial interpretation, there would have been no conflict between the mandamus provision and Article III of the Constitution.)

Or did he? In her "Our Marbury" article, Prof. Louise Weinberg ardently insists that "Marshall read the mandamus power precisely as his critics do, and as we do—as remedial" (Weinberg 2003, 1311). In her view, Marshall in Marbury meant no more than that the mandamus provision, if read as a grant of jurisdiction, would in that case be unconstitutional.

When I first read this, I was intrigued. Now it strikes me as a creative but implausible interpretation. There is no language anywhere in the opinion that suggests this was Marshall's intention, and there is much to the contrary. The quoted passage states unequivocally that if the Court was unable to issue the writ, it had to be ("must be") because the law was unconstitutional. This makes sense only on the theory that Marshall read the mandamus provision as conferring jurisdiction—an interpretation amply borne out by the remainder of the opinion. See, e.g., Marbury, 5 U.S. at 176 ("The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction, so conferred, can be exercised.")

The Death Penalty and the "Two Wrongs" Argument

P.S. Huff

There are many plausible arguments against capital punishment, but there seem to be even more ridiculous ones. And what is more, the latter are at least as popular.

Take, for instance, the most prominent protest of them all—that cliché of clichés, "two wrongs do not make a right." Of course they don't, but might one wrong justify what would otherwise be a wrong? That, surely, is the theory of death penalty proponents. Commonly called the principle of retribution, it is the chief reason we discriminate between kidnapping and lawful imprisonment. Yet this commonplace and entirely coherent position is here met not with a syllogism or even a thesis statement, but with a trite slogan that begs the whole question. This I cannot respect.

How Old Is That Marbury Narrative?

P.S. Huff

Among Marbury v. Madison apologia, the gold standard is doubtless Louise Weinberg's well-argued defense of the case's soundness, importance, and even greatness. Louise Weinberg, Our Marbury, 89 Va. L. Rev. 1235 (2003). But in it, she makes at least one very shaky historical claim:

As the story has it, John Marshall, under threat of impeachment himself, is badly frightened. Marbury's case presents him with a dilemma. If he orders Secretary of State James Madison to deliver Marbury's commission, Madison will not obey, and the Supreme Court will be a laughingstock. But if Marshall declines to order Madison to deliver, it will look as though the Supreme Court is backing down. The Court will still be a laughingstock. Either way, the Court will suffer a blow to whatever small authority it possesses, rendering it even more politically vulnerable.

. . . .

Yet, alluring as it is, much of the narrative frame for these achievements is simply made up. There was a war on the judiciary, all right, but until the early twentieth century there was no reference to the "dilemma," the "strategic coup," and so forth.

This last paragraph is wrong. Hugh Henry Brackenridge's Law Miscellanies, published in 1814, contains much of the modern story. See page 311 (obnoxious overuse of italics in original):

What then, to use the language of the court, could constitute "the peculiar delicacy of the case, the novelty of some of the circumstances, and the real difficulty attending the points which occur in it?" I can see no difficulty in any of the points, nor is there any novelty of principle in the determination. But I will acknowledge there was, a peculiar delicacy, as the court express it, in the case. It was whether the judiciary should enter into a contest with the executive. They could not but see that if the mandamus issued, it must be directed to the marshal, who was the officer of the executive, and who might be instructed not to obey; and if an attachment issued against the marshal, for not obeying, who was to put him in jail but himself? The court would be placed in an undignified situation in such a case, who had issued a writ which they could not enforce.

On the marshal's return to the writ that he was instructed by the executive not to pay regard to it, what remained but to represent this to the legislature that the executive might be impeached, if they should be of the same opinion with the court, as to the power of issuing the mandamus. But the legislature might be of opinion that the writ was not grantable in such a case, and instead of impeaching the president, impeach the judges who had issued it. Or, by repealing the law under which the supreme court was constituted, these judges might be got rid of altogether. . . .

Hardly a splendid work, but a relevant one; for it shows that a key element of the standard narrative was already in the air when Marbury was a mere 11 years old. Of course, whether these sentiments were widely held is a separate question.

Welcome to 2010

P.S. Huff

Another 52 weeks—another 12 months and another year—have gone by. And with it, so passes the first decade of the Twenty-First Century.*

Looking back on it, I believe historians—at least of the better sort, which is to say, those no one consults in writing school textbooks—will see in 2000–2009 the dawn of the Information Age. It witnessed the birth of Wikipedia; the rise of YouTube; the explosion of digital libraries and eBooks; the emergence of a half-respectable (if half-insane) blogosphere; etc., etc. Though the modern internet was born in the '90s, everything the autodidact loves about it came to maturity in the past ten years. I say maturity rather than fruition, for more revolutionary changes no doubt lurk in the future. All the same, the internet of a short decennium ago was to the serious researcher a barren and second-rate wasteland. Today, it is a first-rate library, second-rate conversation center, and third-rate museum all rolled into one.

Happy New Year's, happy new year, and happy new decade.