Gary Lawson
In my previous post on Ken Kersch’s Conservatives together with the Constitution, I wrote virtually the volume that Ken wrote. (Well, mostly I wrote virtually myself, but I did shout the volume from fourth dimension to time.) This post is virtually a volume that Ken did non write together with in all probability has no involvement inward writing.
Ken wrote a volume virtually Conservatives together with the Constitution, not virtually Libertarians together with the Constitution. That is understandable: There were non plenty libertarians, either inward the New-Deal-to-Reagan era on which Ken focuses or today, to thing sufficiently to warrant a book. Yes, at that topographic point are a few libertarian thinkers who are of import to conservative theory together with vice versa, but past times together with large the 2 bodies of thought larn their carve upward ways, unless it is to fighting amongst each other. (So why produce conservatives together with libertarians oftentimes hang out together? Partly it is because each finds the other to a greater extent than interesting together with tolerant than the full general run of the Left, together with ane tin thence receive got to a greater extent than intellectually stimulating conversations. And partly it is because the Left has gone – or maybe ever was -- so bat-shit crazy that some form of alliance is necessary for unproblematic self-preservation.) If, however, at that topographic point were ever to last written a volume virtually libertarian constitutional thought inward the post-War era, the star of the volume would receive got to last Ayn Rand.
That is not because Rand had a developed trunk of thought on constitutionalism. She said together with wrote relatively lilliputian on the subject, for reasons that I volition larn to shortly. Nor is it because all libertarians during that catamenia were Randians. A lot of them were (and are), but a lot of them weren’t (and aren’t). Indeed, a practiced chunk of libertarians, so together with now, regarded Rand every bit an embarrassment, to the shout for where a lot of libertarians effectively defined themselves every bit “not-Randian.” And that is exactly the point. Rand is so of import a figure to libertarianism – think of Francis Schaeffer, John Courtney Murray, Bishop Sheen, together with Robby George morphing into ane gigantic Power Ranger – that whatever libertarian inward Ken’s era of involvement who was not a Randian in all probability felt some obligation to explicate why not. (I imagine, peradventure wrongly, that non-Marxist socialists mightiness receive got the same experience: You tin last a socialist without beingness a Marxist, but y'all in all probability receive got some felt obligation to explicate why y'all are non a Marxist.) That is probable less truthful today, where the bill of fare of options is larger together with the sheer powerfulness of Rand’s presence has faded since her decease inward 1982, but it was pretty clearly so into the 1980s.
Rand wrote together with said real lilliputian virtually legal theory. She wrote a few articles on legal-ish topics, such every bit abortion together with complimentary speech, but the articles focused on philosophical rather than distinctively legal aspects of those subjects. She made a few to a greater extent than oftentimes than non favorable comments virtually the the States Constitution (I believe all of which are quoted inward Ken’s volume at some point), but she never articulated a theory of either constitutional blueprint or constitutional interpretation, together with she was anything but an unqualified admirer of the actual document. At the determination of Atlas Shrugged, Judge Narragansett – Rand’s representation of Objectivist legal thought – is drafting a constitution for the forthcoming reborn America:
He sat at a table, together with the lite of his light cruel on the re-create of an ancient document. He had marked together with crossed out the contradictions inward its statements that had in ane lawsuit been the drive of its destruction. He was at nowadays adding a novel clause to its pages: “Congress shall brand no constabulary abridging the liberty of production together with merchandise . . .”
Notice that Rand did non say “Neither Congress nor whatever terra firma shall . . . .” That is in all probability less because of a deep together with abiding regard for federalism than because she just was non thinking much virtually constitutional design. This was a tiny component of her story. Indeed,who other than me fifty-fifty remembers Judge Narragansett?
Rand’s neglect of legal theory is non remotely surprising, given the hierarchical construction of philosophical (and all) thought. Legal theory is a subset of political theory. Political theory is an application of moral theory inward a specific setting. Moral theory, for its part, is a search for a sure form of noesis together with thence depends for its soundness on deep epistemological principles regarding noesis inward general. Epistemology, inward turn, is the report of how people perceive, integrate, together with procedure reality, together with it thence depends on (or is at to the lowest degree co-dependent with) metaphysics. Rand did non run into herself every bit a legal or political thinker. She did non fifty-fifty run into herself every bit primarily a moral theorist. Rand was commencement together with foremost an epistemologist together with metaphysician. She was doing First Philosophy. All else – the ethics, the politics, the legal theory, the aesthetics – follows from the main principles of metaphysics together with epistemology. If y'all desire to understand Rand, y'all produce non start amongst The Virtue of Selfishness or Capitalism: The Unknown Ideal. You start amongst Introduction to Objectivist Epistemology. If y'all read Atlas Shrugged and skipped the component inward Galt’s spoken communication where he started talking virtually the nature of concepts because it seemed boring, y'all skipped THE key shout for inward Rand’s thinking.
A audio metaphysics together with epistemology – pregnant a philosophy of reason-- leads almost instantly to a eudaimonistic ethical egoism. (Indeed, the arguments for non-egoistic ethical theories are so transparently awful that fifty-fifty mortal every bit good-naturedly open-minded every bit I volition receive got a difficult fourth dimension taking them seriously. But I try.) Eudaimonism, inward turn, leads fairly readily to some form of political construction inward the liberal-to-libertarian range, though the details plow out to last unsurprisingly devilish. For example, I am an anarchist, together with Rand thought anarchism was nutso. Rand was a potent defender of intellectual property, together with I am dubious virtually that exceptional enterprise. Rand was non interested inward those details (other than the component virtually anarchism beingness nutso, on which she wrote a swell deal). She had millenia of dreadfully incorrect metaphysics together with epistemology, together with the dreadfully incorrect moral theories that derived from them, to bash, together with that was a full-time occupation. The Judge Narragansetts of the footing would piece of work out the details.
What does whatever of this receive got to produce amongst Ken’s book? Not much, of course, because Rand did non receive got much to produce amongst Ken’s book. But he did run into lucifer to shout her on a few occasions, together with almost all of those mentions reverberate real mutual misunderstandings of Rand’s work. This is not a criticism of Ken: It was non his task to larn a deep agreement of Objectivism. Indeed, it is just because Ken is reflecting some widely held views that I think it is worth at to the lowest degree a weblog post to gear upward them. In guild of appearance:
(1) According to Ken, Rand believed that capitalism “had in ane lawsuit flourished inward the United States, inward the belatedly nineteenth century” (p. 126). Two things. First, Rand never thought that capitalism had flourished anywhere. That is why it is an “unknown” ideal. It did better in the the States inward the nineteenth century than it had done anywhere or anytime else, but that is similar talking virtually the best relief pitcher on the Seattle Mariners, the most listenable rail on “Nebraska,” or the most libertarian president of my lifetime. Rand had no wistful fondness for the nineteenth century. Second, to the extent that she mentioned the nineteenth century, to my noesis it was ever every bit an undifferentiated whole. I cannot think of a unmarried illustration inward which she singled out the “late” nineteenth century for special solicitude, together with I am reasonably good acquainted amongst Rand’s corpus of piece of work (though of course of education I could last missing something). All of which raises this question: Where did Ken larn the thought that Rand would abide by something special inward the “late” nineteenth century? What virtually that catamenia is to a greater extent than “Randian” inward Ken’s hear than the balance of the century? The entirely thing that I tin come upward up amongst is that slavery was formally, fifty-fifty if non functionally, abolished afterward 1865, which is a real large addition for defenders of capitalism. Ken: Is that what y'all had inward mind? If not, was at that topographic point some association of Rand amongst something else inward that fourth dimension catamenia that y'all were trying to draw? And if so, why?
(2) Rand railed virtually (inter a swell many alia) what she called “psychologizing,” which is attempting to explicate people’s intellectual processes past times amateur speculation virtually motives together with influences. Ken, I think, engages inward a fleck of psychologizing when he speculates that Rand’s moral theory resulted from events inward her life together with “her nature” (p. 128). This is the fallacy that I mentioned before of divorcing considerations of ethics (and politics) from its epistemological together with metaphysical foundations. Rand’s ethical theory results from a real large epistemological together with metaphysical foundation. First Philosophy is . . . well, first, together with the other materials comes . . . well, non first. The focus of intellectual history should last intellectual, together with trying to explicate away a philosophical construction past times amateur psychologizing is just a tad nonintellectual.
It is to a greater extent than intellectual to evidence to produce intellectual history past times identifying intellectual influences, together with Ken has an offering on the adjacent page, where he is puzzled that “Jennifer Ratner-Rosenhagan oddly omits whatever shout of Rand inward her otherwise superb report of the influence of Nietzsche on American political though” (p. 129 n.70). Again, this fails to understand the basic foundations together with hierarchical construction of Rand’s thought. Rand had exposure to Nietzsche when she was studying philosophy inward Russia, together with she for sure sympathized amongst his critique of religious belief together with religious ethics, but past times the fourth dimension she started doing serious philosophy of her own, Nietzsche’s influence on what she wanted to produce was pretty unopen to zero. Rand saw herself every bit working inward the (broadly speaking) Aristotelian tradition. She had far nicer things to say virtually Thomas Aquinas than virtually Nietzsche. This is non fifty-fifty mildly surprising. Rand was doing First Philosophy, together with Nietzsche was non much of a First Philosopher. His metaphysics was nonexistent, together with his epistemology was unsystematized ramblings. He just does non receive got much to offering to mortal trying to perfect an Aristotelian project. Comparing Rand together with Nietzsche because they both liked heroic men together with didn’t similar Christianity is similar comparison Corey Booker together with Hitler because they were both vegetarians. It confuses aesthetic preferences amongst philosophical foundations. For the best business organisation human relationship of Rand’s intellectual development, including an first-class news of Rand together with Nietzsche, run into Chris Mathew Sciabarra, Ayn Rand: The Russian Radical (1995).
(3) Rand appears inward Ken’s volume mostly inward the chapter on “The Heroic American Businessman” (pp. 128-29). Here’s the thing: Rand did non regard all businessmen every bit heroes. Some of them were heroes, together with some of her heroes were businessmen (though John Galt was a physicist together with philosopher, piece Howard Roark was hardly a titan of industry), but some of the worst villains were businessmen. Think of James Taggart together with Orren Boyle. For Rand, it mattered real much what form of human being of affairs y'all were talking about. Some good, some bad, some meh. She objected, of course, to the categorical castigation of all businessmen only for engaging inward business, but to error that for a categorical celebration of all businessmen only for engaging inward business organisation is pretty egregious. Rand celebrated acts of inventiveness together with productivity, but the extent to which businessmen engage inward those acts is decidedly contingent.
By the same token, it is fundamentally incorrect to attribute to Rand “a contempt for volume man” (p. 320). Rand’s contempt was to a greater extent than oftentimes than non reserved for people amongst extraordinary powerfulness who misuse it (e.g.,Robert Stadler). Mass human being is non relieved from the obligation to think together with focus just because he is mass, together with to the extent that “ordinary” people larn along the bad ideas of intellectuals without thinking virtually them, they are culpable (go await at the famous scene inward Atlas Shrugged of the people on the doomed develop going into the tunnel). But the intellectuals are to a greater extent than culpable, because getting ideas correct is their job. For Rand, volume human being is largely a victim, deserving of sympathy to a greater extent than than contempt. (Eddie Willers would last the representation of the basically decent, non-philosophical sort who is destroyed past times events around him precipitated past times evil intellectuals.) Rand was non a Nietzschean. Rand was a Randian.
Rand is vital to legal theory because epistemology is vital to legal theory together with Rand is vital to epistemology. But that is non a volume for Ken to write. That’s my job. Maybe inward a few decades . . . .
Gary S. Lawson is Philip S. Beck Professor of Law at B.U. Law School. You tin accomplish him past times email at glawson at bu.edu
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