April 21, 2008


Arieli, Yehoshua, Individualism and Nationalism in American Ideology (Cambridge: Harvard U. Press, 1964) (The Civil War played an important role in the growth of an integral American nationalism. Yet from the beginning this nationalism crystallized around social and moral, rather than political, concepts. The question involved in the sectional conflict were not the rights of the existing states but the fate of the national domain and the nature of the social structure of the United States. The slaveholding and the free states each charged the other side with an attempt to rule the Union in its own interest through an undue extension of federal power and a conscious misinterpretation of the Constitution. The militant North interpreted the Fugitive Slave Act, the Kansas-Nebraska Act, the endorsement of the Lecompton Constitution, and the Dred Scott decision as a conspiracy to impose slavocracy upon the whole Union. Secession was defended on the grounds that a house divided against itself could not stand. It thus involved a nationalism so identified with social ideology that both sides preferred dismemberment of the Union to concession. The northern emphasis on the maintenance of the Union by all means was expressed only after it had won control of the federal government and faced the factual session of the South.” “This fusion of social ideals with group loyalty, fanaticism, the will to political power, and the maintenance of the Union, created a new type of nationalism on the eve of the Civil War. It became the primary function of the federal government to suppress the southern threat to destroy the social system of democracy through secession and war. The appeal to patriotism and national loyalty in defence of the Union was at the same time an appeal to maintain democracy and the institutions of a free society. This changed the traditional relationship between state and society. The paramount duty of the state was to maintain in the world that form of government whose leading object it was to elevate the condition of men.” “The antagonism toward centralized power, latent in the Jeffersonian tradition, disappeared during the Civil War, at least for those actively engaged in defending the Union side. The government, having become identified with a definite social philosophy, became the trustee of its realization, and through it the focus of loyalty, the expression of the general will of the nation.” “The heighten consciousness of the uniqueness of American society which emerged with nationalism during the War needed a term adequately to define and explain its character. The term supplied by the New England intellectuals was individualism. This concept ‘of the singleness of man, individualism,’ described, according to Whitman, the dynamic and progressive motive force of modern history and explained the aspiration of the American nation.” Id. at 320-321. “Increasingly, after the Civil War, this concept described the character of the American commonwealth and its ideals, its institution and behavior pattern. The same concept was implicit in most of the writings of American intellectuals in the latter half of the nineteenth century and inspired most of the legislative, political, and judicial actions of the several branches of the federal Republic. Id. at 322.).

Dionne, E. J., Jr., Souled Out: Reclaiming Faith and Politics After the Religious Right (Princeton & Oxford: Princeton U. Press, 2008) (“My view…is unapologetically Clintonian: yes, there is a culture war, and no, there isn’t. It depends on what the meaning of ‘culture war’ is.” “If so looks primarily at the extremes of opinions (and I use ‘extremes’ descriptively, not pejoratively), of course there is a deep cultural conflict in the United States. It is waged between the 15 to 20 percent of the country that is largely religious and staunchly conservative and the 15 to 20 percent that is largely secular and staunchly liberal. One can quibble about the exact numbers at each end; religious conservatives probably outnumber secular liberals, though the secular group is growing. But there is no doubt that these two groups exist, have very strong feelings, and on the whole can’t stand each other. They regularly toss epithets across their divide. The godly attack the ungodly. The tolerant attack the intolerant. The cosmopolitan attack the parochial. The rooted attack the rootless. Moralists attack the permissive.” “But whatever the numbers, those most ardently engaged on both sides of this fight, taken together, do not constitute a majority of Americans. I would reckon (and much social-science evidence supports this) that 60 to 70 percent of us fall at some middle point.” Id. at 47-48.).

Fischer, David Hackett, Growing Old in America (The Bland-Lee Lectures Delivered at Clark University) (New York: Oxford U. Press, 1977) (“Finally, there is a third change which must be made—not economic, or social, but cultural in its nature. It is a question of ethics.—of our deepest social values….” “Today, the work ethic is still widely defended and deeply believed. For many people it is a good and healthy discipline—a useful and happy way of organizing their lives. It probably remains meaningful for more Americans today than any single ethical alternative. But today it is no longer necessary, as it was in the past, to secure both growth and stability in American society. In fact, it might be argued that in a nation which has the power to produce more than it consumes, in a society which is constantly plagued by problems of excess production, in an economy which is beginning to run up against its environmental limits, the work ethic becomes a source of weakness rather than strength.. Any ethic which drives people endlessly to produce more goods and more services, to increase productivity, is increasingly dysfunctional to the maintenance of social cohesion in an America which has begun to face the problem of ‘overgrowth,’ as it is called.” “The work ethic will always remain important in the lives of individual Americans, but as a way of organizing American society itself, its time has surely passed. There are many other life ethics in the world, In a free society, a person should be able to choose from a broad variety of ethical beliefs. Cultural pluralism requires a plurality of ethical structures which might coexist in an open system.” Id. at 216-217. When I read a book such as this wonderful and insightful work of social history I cannot help but rage at how unsophisticated the typical law graduate—including many of those who occupy law faculty positions—are, and how arrogant they (we) are in thinking that they (we) can understand law without studying and appreciating history. How can they (we) be truly learned in American law lacking not only an understanding of legal history, but also American intellectual, political, social and economic history? If one were to do a national ‘exit interviews’ of American law students as they leave their 2008 law school graduation ceremonies, how many would be able to answer the following questions in the affirmative? Have you read Blackstone’s Commentary on the Laws of England? Did you take any course in American legal history during law school? Do you know who Joseph Story is? Have you read any of his writings? If they are not able to answer in the affirmative, then there is a real sense in which the responsibility must be laid at the feet of the members of the legal academy for transforming legal education from an intellectually rigorous endeavor to professional endeavor to trade endeavor. Then again, each student is ultimately responsible for his or her own education and can make the choice to fill or not fill the gaps in their education. An education is what one gets from burning the midnight oil, from studying in the wee hours.)

Goldwater, Barry, The Conscience of a Conservative (The James Madison Library in American Politics) edited by CC Goldwater, with a new forward by George F. Will, and a new afterword by Robert F. Kennedy, Jr. (Princeton & Oxford: Princeton U. Press, 2007) (From Kennedy’s Afterword: “It is a different world from the one where Teddy’s brother, President Kennedy, could imagine debating Barry Goldwater, head-to-head, around the country, on genuine matters of principle—as rivals but also as friends, with profound differences of principle which did not preclude mutual respect. The hijacking of Goldwater’s rational conservatism by the New Right radicals has brought us to this sad and perilous pass. Reading Goldwater’s manifesto today may not bring agreement on all or even most of his views. But it is a reminder of a political age we have lost—and of a conservatism lost as well.” Id. at 137.).

Kammen, Michael, People of Paradox: The Inquiry Concerning the Origins of the American Civilization (New York: Knopf, 1972) (“Since the Civil War we have vacillated between self-praise for being a ‘nation of immigrants’ and self-hate for the stations of restless locomotion through which we daily pass….” “Clearly then, the political phenomenon of many states and one union balancing their sovereignties—the problem of legitimacy again—has been paralleled by the phenomenon of uneasy socio-political pluralism. The nation has simultaneously managed to develop both a multi-culture and the unifying characteristics of a mono-culture.” “Because of our conformist diversity, our style may perhaps be located less in specific characteristics than in a common condition of compromise, or hybridization. There is certainly a quality of heterogeneity-within-homogeneity in modern America. Our political and ideological affiliations are conditioned by a host of secondary social differences reflecting the wide range of regional, occupational. And cultural variations found in the United States. The pressures on a system of competing coalitions comprised of diverse groups compel them all to behave in certain compromising ways….” Id. at 76-77. “Collective individualism. What dualism in the American experience is more central to an understanding of our nature? Some of the most awkward contradictions in American civilization during the nineteenth century certainly derived from men’s desire to retain a family brotherhood within a social framework based upon freedom of contract. They needed to strike a balance between the absence of restraint and the ability to belong. One result was that being ‘anti,’ or against something, often brought membership or belonging: in the Anti-Masons, the Know-Nothings, or the Klan, for example. Anti-party men in the 1820’s who were frustrated by the Republicans organized an anti-party party, a party to end all parties.” “Similarly, the communitarians experiments of the 1840’s and after were essentially anti-institutional institutions; and they veered erratically between extremes of anarchism and collectivism as they sought some way to eliminate social friction without coercion….” Id. at 269.).

Kluger, Richard, Seizing Destiny: How America Grew from Sea to Shining Sea (New York: Knopf, 2007) (“This greatness—of size, wealth, and power—did not, of course, spring forth full-blown; it had to be planted, fertilized, tended to, gathered up, and processed, all obstacles be damned and, if need be, demolished. Although self-justifying throughout the process, those early generations of Americans had no exclusive call on heaven’s blessing for their venture. They were simply all too human in confusing opportunity with entitlement and mistaking the abundance of liberty doled to them by history and geography for a license to have their way. Those Americans given to blind chauvinism would do well to consider the darker side of the tale as well.” Id. at xviii.).

Meyerson, Michael I., Liberty’s Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe in the World (New York: Basic Books, 2008) (This book is aimed at the general readers; it should be of interest to first-year law students upon their first foray in to constitutional law and history. The book is written in the hope that it will motivate more people to actually read the Federalist Papers. “The first goal of Liberty’s Footprint is to present the most important teachings of The Federalist to a modern audience.” Id. at xi.).

Overstreet, H. A., The Mature Mind (New York: Norton, 1949) (“Cosmopolitan man will, in contrast to provincial man, be man with a greater chance to mature; man with a larger area in which he can exercise his faculty for fairness and reasonableness without coming up against fixed loyalty-barriers that bid him to stop.… Maturity is achieved where conditions favorable to maturity exist; that is the clue.” Id. at 31-31. “The characteristic of the mature person is that he affirms life. To affirm life he must be involved, heart and soul, in the process of living. Neither the person who feels himself a failure nor the person who consciously or unconsciously resents what life has done to him can feel his heart and soul engaged in the process of living. That experience is reserved for the person whose full powers are enlisted. This, then, is what this fourth insight signified: to mature, the individual must know what his powers are and must make them competent for life. Know thyself, said Socrates. Know you aptitudes, say these modern Socratics.” Id. at 35. “Whether or not old dogs can learn new tricks, old human beings can—and must—learn new facts and insights as long as they live.” Id. at 38. “Those philosophies that ask a high level of maturity command a smaller following than do those that accept adult immaturity as good enough…. [O]ne major strain in our tradition—that of intellectual and social liberalism—urges us to grow up into our full psychological stature. This tradition is rendered all the lip-service it could ask, but little enough behavior-service. For among the philosophies that compete with it are at least two that demand less effort and give quicker rewards: the strain of religious and political authoritarianism, and the strain of material and antirationalism. Each of these presents a much easier way of life than the philosophy that asks us to make efforts to grow up.” Id. at 141,).

Rostow, Eugene V., Planning for Freedom: The Public Law of American Capitalism (New Haven & London: Yale U. Press, 1959) (Tthe subject matter of these talks is the legal control of the economy. Dealing with issues in different areas of specialized study—law and economics, in this instance—invariably raises the question of fixing an appropriate level of discourse.… I have not yet come upon a book that explains the operation of the economy in terms which meet the needs of the lawyer or law student, nor have I found one about the legal setting of economic life which answers the kind of questions businessmen and economist habitually ask. The Intelligent Common Reader’s guides to economics never quite reach the complicated problems of public policy which are of acute daily concern to lawyers and law students. And the advanced books on economics take for granted a working knowledge of basic ideas, techniques of analysis, and institutions, knowledge which is not yet part of the intellectual universe of that mythical creature, the liberally educated man. The literature about law presents the same difficulty for economists and other laymen. Most elementary books about law are too elementary to be interesting; the interesting work presupposes a framework or reference usually available only within the guild.” Id. at vii-viii. Since Rostow, a former Dean of the Yale Law School and a former Under Secretary of State for Political Affairs in the U.S. Department of State, wrote those lines the subdiscipline ‘law and economics’ has mushroomed and there are many authors, books, and readers occupying what may have seemed an excluded middle. Still, I think one of his points remains true: only a very small percentage of lawyers and law students have adequate understanding of economics to engage in meaningful policy analysis of legal issues. “For ‘full’ employment, or ‘reasonably full’ employment, or ‘high levels’ of employment—however the goal should properly be defined—is not the only end to be served by the legal system for directing the economy. An adequate program for the public control of business requires the government to formulae a series of economic policy objectives, and not merely to achieve full employment.” Such a program should include at least these elements, in addition to employment stabilization: 1. The rate of growth…. 2. Efficiency and economy in the short-run and the long run use of resources…. 3. Equity…. 4. The level of prices….” Id. at 25-27. “[C]ompetitive capitalism is a characteristic expression of the American culture. In all its arrangements, American society manifests a preoccupation with the problem of power. Persistently, almost instinctively, its policy is always to avoid concentrations of authority as a threat to the possibility of freedom. Capitalism stands with federalism, the separation of powers, the disestablishment of religion, the antitrust tradition, the autonomy of educational bodies, and the other major articles of the American creed, in expressing a deep suspicion of authority. Americans are commented pluralists, if not quite anarchists, in their social attitudes, willing to concede to Caesar only as much power as circumstance may require.” Id. at 43. “The American standard of living is not nearly so high as our national penchant for self-congratulation makes it out to be. If certain components of the standard of living not usually included in the indices are taken into account, it may not even be the highest in the world. Education is a matter of vital concern to every family. Neither the cost nor the quality of public education is reflected in statistics of per capita expenditures for consumption, or most other measures of the standard of living. The American people are beginning to realize that their public education is provided on a mass scale, but that its average quality is below that offered in many other countries. Similarly, if, in measuring standards of living, one counted the low quality of much American housing, the chaos of most American cities, the quality and organization of American health services, and the spotty character of our social insurance, the result might be a wholesome shock to American pride. We do not, of course, measure economic performance in such sensible ways.”… As Kenneth Galbraith has recently pointed out….the statistics solemnly assume that consumer expenditures on tobacco, liquor, and patent medicines have the same social utility, dollar for dollar, as expenditures for essential housing, food, education, or health. They make no distinction between money spent for food or bad housing, for shoddy merchandise, or for overpriced or even harmful commodities or services….” Id. at 44.).

Rostow, W. W., The Stages of Economic Growth (Cambridge: Cambridge U. Press, 1960) (This book is a bit dated, still it provides food for thought as concerns present day concerns. “As a matter of historical fact a reactive nationalism—reacting against intrusion from more advanced nations—has been a most important and powerful motive force in the transition from traditional to modern societies, at least as important as the profit motive. Men holding effective authority or influence have been willing to uproot traditional societies not, primarily, to make money by because traditional society failed—or threatened to fail—to protect them from humiliation by foreigners.” Id. at 26-27. One point of view being articulated through the present period of economic uncertainty purportedly resulting from subprime lending, mortgage defaults, stock market value loss, etc., is the United States may cease to be the lead economy, and the dollar not the prefer currency. Retailers in New York City placed signs in their window stating that they take Euros. Is nationalism—a feeling of national economic humiliation—required to get Americans to reinvent their economy for the 21st-century world?).

Thaler, Richard H., & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (New Haven & London: Yale U. Press, 2008) (This is book is a good, through rather light, read. My favorite passage is this: "As we shall see, small and apparently insignificant details can have major impacts on people's behavior. A good rule of thumb is to assume that 'everything matters.' In many cases, the power of these small details comes from focusing the attention of users in a particular direction. A wonderful example of this principle comes from, of all places, the men's room at Schiphol Airport in Amsterdam. There the authorities have etched the image of a black housefly into each urinal. It seems that men usually do not pay much attention to where they aim, which can create a bit of a mess, but if they see a target, attention and therefore accuracy are much increased. According to the man who came up with the idea, it works wonders. 'It improves the aim, says Aad Kieboom. 'If a man sees a fly, he aims at it.' Kieboom, an economist, directs Schiphol's building expansion. His staff conducted fly-in-urinal trial and found that etching reduce spillage by 80 percent." Id. at 3-4. It goes to two things most women, I think, suspect about men. First, that men never really grow up. And, second, that with men just about everything is ultimately reducible to some form of pissing contest.).

Vonnegut, Kurt, Jr., Armageddon in Retrospect and Other New and Unpublished Writings on War and Peace with an introduction by Mark Vonnegut (New York: Putnam, 2008) ("Where do I get my ideas from?... I was goofing around like everybody else in Indiana, and all of a sudden stuff came gushing out. It was disgust with civilization." Id. at 233.).

Wilentz. Sean, Chants Democratic: New York City and the Rise of the American Working Class, 1788-1850 (Twentieth-Anniversary Edition) (Oxford: Oxford U. Press, 1984, 2004) (“This is an extended historical essay on capitalism and democracy in the United States. Between the American Revolution and the completion of the emancipation in 1965, this country experienced a series of profound social changes, among them the emergence of a working class. In New York City—then consisting only of what we know today as lower Manhattan—these changes occurred with unusual force and rapidity: more than a decade before the Civil War, the working-class presence was established in the American metropolis. Like the rise of the city itself, the rise of an American working class in New York raised fundamental questions about the character of the democratic Republic—questions that would be asked again, across the nation, over the rest of the nineteenth century. Id. at vii. “I sympathize with Mayer’s argument—that America has long been a lower-middle-class nation that lives by spurious middle-class myths and visions….” Id. at 11, fn. 16. Also see, Arno J. Mayer, ‘The Lower Middle Class as Historical Problem," Journal of Modern History 47 (1975), at 422.).