[This is Chapter Nine of Murphey’s book Modern Social and Political Philosophies: Burkean Conservatism and Classical Liberalism.]

 

Chapter 9

 

THE STRUCTURE OF FREEDOM: GOVERNMENT

 

The state: Needed, but dangerous. Classical liberalism sees the state as necessary most fun­damentally as the enforcing agency for the mutual rights of the individuals who compose the society.   The state is a center of coercion that is charged with the function of reducing the coercion that exists elsewhere. "The state must have the power to coerce and it must have a monopoly of it if it is to discharge its first and primary duty ‑‑ the maintenance of order," according to John Van Sickle^.l   The state is charged, in addition, with various supplemental and auxiliary functions supportive of a free society. I have ar­gued that classical liberals would be well served if they were to take a more ample view of the role of the state than many have taken, since classical liberal theory’s too narrowly doctrinaire circumscription of its powers has caused them to be unable to make a convincing demonstration that a classical liberal model of society is workable. Just the same, I am satisfied that classical liberals have been amply justified in looking upon the state with fear and distrust. The state will always remain, at one and the same time, an essential institution and a major danger.

This attitude differs from that of other philosophies. It differs from both leftwing and rightwing anarchism by seeing the need for government. And more significantly, it differs from both Burkean conservatism and the many non­anarchist varieties of the Left by refusing to trust any particular form of powerful state on the premise that the preferred form can be tamed. Classical liberalism genuinely fears all coercive power. The only state that it is satisfied with is one that is limited, divided and decentralized

to the fullest extent that is consistent with the performance of its legitimate functions.

          This concern about the power of the state is a preoccupation found in all classical liberal writing.  It appears when Ayn Rand says that "a government is the most dan­gerous threat to man's rights,"² and when Milton Friedman adds that "freedom is a rare and delicate plant. Our minds tell us and history confirms, that the great threat to freedom is the concentra­tion of power. Government is necessary . . . yet by concentrating power in political hands, it is also a threat to freedom."³  Two hundred years ago, Thomas Paine expressed the classical liberal per­spective when he wrote that "government, even in its best state, is but a necessary evil; in its worst state an intolerable one."⁴   A few years later in England, Cobden wrote to Bright that "governments seem as a rule to be standing conspi­racies to rob and bamboozle people." Relating this to the events of his own time, he asked "and why should that of Louis Napoleon be an exception?"⁵   Herbert Spencer remarked on the effects of human nature on government when he wrote: "Granting the proposition that men are selfish, we cannot avoid the corollary that those who possess authority will, if permitted, use it for selfish purposes."⁶   Lord Robbins expressed a view that was also voiced by John Stuart Mill and F. A. Hayek when he said that even "popular government carries with it very grave dangers."⁷   Majority rule, where it exists, doesn't eliminate the threat.

                              Early continental classical liberals took an approach that reflected different circum­stances when they endorsed "enlightened despotism" as the way to move toward a free society.   The French Physiocrat Francois Quesnay represented this view when he said that the "right to liberty implies as a corollary the right to property, and the duty of the state to defend it, ‑‑ in other words security. The guarantee of security is indeed the sole function of the state. To extend it would be to encroach on individual liberty. The state cannot be too strong for this purpose, ‑‑ any constitutional checks and balance of power would but weaken the central authority. The despotism of the state is to be tempered only by enlightened public opinion, which will revolt against any infraction of natural law, or rather render it impossible."⁸   In Russia, classical liberals tended after their unsuccessful Decembrist uprising in 1825, and especially in light of the visible dangers from the nihilism of the Left, to support those Czars, such as Alexander II, who were reformist. This continental experience suggests reason for serious reflection about the priorities that classical liberals hold: they would prefer a strong and even undemocratic government in situa­tions where the circumstances of a country and the characteristics of a people are such as to destroy the viability of a truly classical liberal society. Under such below‑threshold conditions, their goal is to secure the sanctity of individual rights as much as possible and to provide the basis, if possible, for at least a slow transition to a fully free society. This is the situation today with regard to much of Asia, Africa and Latin America. By no means is it an ideal situation from the classical liberal point of view. The problem is how best to approximate classical liberal values even though the civilizational base for their full satisfaction is missing.

The importance of limits.  A substantial por­tion of classical liberal theory deals with the appropriate limits of state power. Unlike other philosophies, it makes this a central issue. "There is no more important problem in politics," according to Macaulay, "than to ascertain the just mean between these two most pernicious extremes, to draw correctly the line which divides those cases in which it is the duty of the State to in­terfere from those cases in which it is the duty of the State to abstain from interference."⁹   In a book entitled The Limits of State Action, Wilhelm von Humboldt stressed that "the inquiry into the proper aims and limits of State agency must be of the highest importance ‑‑ perhaps greater impor­tance than any other political question."¹⁰  

           The "nightwatchman" position.   As we will see, all classical liberals consider it urgent for the state to protect private rights against force and fraud, to provide the forum for adjudicating disputes, and to defend the country militarily.  However, there is a substantial body of thought within classical liberalism to the effect that these functions are all that the state may legiti­mately perform.  This is often called the "nightwatchman" position because it would limit the state strictly to police‑type functions. 

              The reader may have noticed that in the quote from Quesnay it was said that "the guarantee of security is indeed the sole function of the state."  This purports to exclude all other functions.  Wilhelm von Humboldt made the same exclusion when he called upon the state to "pursue only that object which they [the people] cannot procure for themselves, namely security."   This indicates that he thought that all other needs could be satisfied by the voluntary efforts of the public.   In England, John Locke had earlier argued that "government has no other end but the preservation of property."  (For this to be understood, we need to notice that he said that "I call by the general name 'property'...  the mutual preservation of their [the people's] lives, liberties and estates.")¹¹   Even with his broad definition of "property," this is a highly limited statement of the functions of the state.   In the United States, Jefferson expressed a similar doctrine when he said that "no man has a natural right to commit aggression on the equal rights of another, and this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of the society, and this is all the laws should en­force on him; and, no man having a natural right to be the judge between himself and another, it is his natural duty to submit to the umpirage of an impartial third.   When the laws have declared and enforced all this, they have fulfilled their functions” (emphasis added).¹²  Thomas Paine said the same: "Every man wishes to pursue his occupation, and to enjoy the fruits of his labors and the produce of his property in peace and safety, and with the least possible expense. When these things are accomplished, all the objects for which government ought to be established are answered."

More recently, Ayn Rand wrote that "the only function of the government . . . is the task of protecting man's rights, i.e., the task of protecting him from physical force."¹³   Amplifying this, she said that "the proper functions of government are: the police, to protect men from criminals; the military forces, to protect men from foreign invaders; and the law courts, to protect men's property and contracts from breach by force or fraud, and to settle disputes among men accord­ing to objectively defined laws." Leonard Read has urged that we "limit society's agency of or­ganized force ‑‑ government ‑‑ to juridical and policing functions, tabulating the do‑nots and pre­scribing the penalties against unpeaceful actions; let the government do this and leave all else to the free, unfettered market!"¹⁴   And elsewhere he says that "government can be turned from offend­er to defender only as it is confined to codifying the taboos and enforcing them, to invoking a com­mon justice, in a word, to keeping the peace." And then, in effect repeating Humboldt's view that people are able to do everything else: "The only things private citizens cannot properly do for themselves is to codify all destructive actions and prohibit them . . . This is a job for govern­ment; and it means that the sole function of government is to maintain law and order."¹⁵

The nightwatchman position, of course, needs to be discussed on the merits, which is something I have done and will be doing. But I would add ‑‑ not as an ad hominem attack, but for the purpose of understanding the historical development of classical liberalism ‑‑ that it is, at least in my opinion, an unsophisticated and doc­trinaire position. It seems to have originated in the early stages of thought about the functions of government as the West emerged from the Age of Kings.  Since then, it has been symptomatic of the effects of classical liberalism's having been on the defensive; it reflects the rigidity of a nar­rowly doctrinaire over-simplification.   I don't see it as an adequate view of government even (or I probably should say especially) for a classical liberal society.

The recognition of broader functions. Even though we have seen that many have endorsed the nightwatchman position, it has also been rejected by a sizeable number of classical liberal thinkers. Lord Robbins has discussed the difference of view­point at length: "If we take it (the prin­ciple of laissez faire) in the sense in which it was originally made the basis of a general system, if, that is to say, we take it as meaning a state of affairs in which the functions of the state are restricted to those of a night-watchman and in which the law that is enforced consists in a very few simple prescriptions chiefly concerning property and contract, the rest being left to spontaneous co‑operation guided by the market, then we can say that it stands for a conception differing very greatly from the conceptions of liberal order that would be thought appropriate by those of us who follow the English Classical tradi­tion, suitably modified to take account of the needs and the intellectual discoveries of this part of the twentieth century. It is true that both systems attach great importance to freedom as an objective. It is true that both systems depend upon recognition of the possibilities of order im­plicit in the institutions of property and the mar­ket. But their conceptions of the nature of this order and the functions of government necessary to bring it about are so different as to constitute two very different systems." About Hayek, he observed that "as befits one who derives so much from the great traditions of English Political Economy ‑‑ not only of the eighteenth century but also the nineteenth ‑‑ Professor Hayek's attitude is not one of laissez‑faire in the sense of leaving nothing to government but the functions of the night watchman."

Henry Hazlitt has written that "the most necessary function of government is to protect its citizens against force and fraud; but it does not follow that this is the sole legitimate func­tion."¹⁶   John Stuart Mill especially took apart the nightwatchman view (although we will no­tice that Hazlitt rightly points to the need to put limits on the expansiveness of Mill's view): "In attempting to enumerate the necessary func­tions of government, we find them to be consi­derably more multifarious than most people are at first aware of, and not capable of being cir­cumscribed by those very definite lines of demarca­tion which, in the inconsiderateness of popular discussion, it is often attempted to draw round them. We sometimes, for example, hear it said that governments ought to confine themselves to affording protection against force and fraud: that, these two things apart, people should be free agents, able to take care of themselves, and that so long as a person practices no violence or deception, to the injury of others in person or property, legislators and governments are in no way called on to concern themselves about him. But why should people be protected by their govern­ment, that is, by their own collective strength, against violence and fraud, and not against other evils, except that the expediency is more obvious? If nothing, but what people cannot possibly do for themselves, can be fit to be done for them by government, people might be required to protect themselves by their skill and courage even against force, or to beg or buy protection against it . . . and against fraud every one has the protection of his own wits . . . Under which of these heads, the repression of force or of fraud, are we to place the operation, for example, of the laws of inheritance? Some such laws must exist in all societies. . . Again, the legitimacy is conceded of repress­ing violence or treachery; but under which of these heads are we to place the obligation imposed on people to perform their contracts? Non‑perfor­mance does not necessarily imply fraud; the person who entered into the contract may have sincerely intended to fulfill it . . . The law preserves authentic evidence of facts to which legal conse­quences are attached, by keeping a registry of such facts; as of births, deaths, and marriages, of wills and contracts, and of judicial proceedings . . . The individual may be an infant, or a lunatic, or fallen into imbecility. The law sure­ly must look after the interests of such persons. There is a multitude of cases in which govern­ments with general approbation, assume powers and execute functions for which no reason can be as­signed except the simple one,  that they conduce to general convenience. We may take as an example, the function . . . of coining money. This is assumed for no more recondite purpose than that of saving to individuals the trouble, delay, and expense of weighing and assaying. No one, however, even of those most jealous of state interference, has objected to this as an improper exercise of the powers of government. Prescribing a set of standard weights and measures is another instance."¹⁷

Henry Hazlitt has correctly observed, though, that "few libertarians will follow him (Mill) when he goes on to declare that these examples 'might be indefinitely multiplied without intrud­ing on any disputed ground,' and that the only justification needed for any specific government interference is its own individual 'expediency.'" I agree, as Hazlitt does, with a good deal of what Mill said; but I also agree that Mill didn't ade­quately limit the state's functions. The trouble with "expediency" as a principle is that it is no principle at all. It can be defined according to any governor's or majority's whim or worldview. Mill would be forced to agree that what Stalin, Mao or Hitler would have considered expedient would have differed widely from what he would allow. An assumption that is implicit in Mill's observation is that the expediency will be exercised in ways consistent with certain values that he hasn't articulated.  But just the same, Mill made some telling points about the essential foolishness of the "force and fraud" rule.

Herbert Hoover was another classical liberal who acknowledged governmental functions far beyond  the nightwatchman theory. This has caused Murray Rothbard, an anarcho‑capitalist, to charge that Hoover wasn't a liberatarian at all. Such a charge is ridiculous, though, when we consider Hoover's overall writings and see that his entire orientation was founded on the classical liberal perception of society.

 

Some Specific Functions

          I cannot hope to be exhaustive, of course, in the following sections as I illustrate the classi­cal liberal discussion of a number of governmental functions; but I think these will be enough to give us a good exercise in applying the classical liberal criteria to them.

Although the functions are difficult to classi­fy, I have broken them down roughly into five cate­gories:

•  Functions that fulfill pre­conditions to life generally within a free society.

•  Functions that establish the preconditions for a market economy.

•  Functions that seek to meet needs or de­sires that the market can't very well satisfy.

• Certain ill‑advised functions that have been suggested by classical liberals them­selves.

• Additional functions that, in my opinion, government should not perform.

 

1.      Functions that establish the preconditions for life within a free society.   A substantial number of governmental functions are called for to establish the preconditions for life in a community of free men in which each person enjoys equal rights with others and in which each is ac­cordingly bound by the duties that correspond to those rights. If we were to look at the immense fabric of the law as it has come down to us from the English, we would see that most of the basic functions such as of property, tort, contract, crimes, procedure and the like would be of this kind. The vast web of civilized relations in­volves countless points of contact among people -‑ ­and many of them require a principled adjustment that will be in keeping with the organized sensi­bilities of the community as a whole.

In this connection, as well as in others, government is uniquely valuable because it has two qualities that only it can possess: first, that it embodies organized force, which in a free society will be objectively controlled by public feeling, the Rule of Law and the substantive consi­derations of libertarian principle; and, second, that it involves, through the aspects of "juris­diction" and "sovereignty," the power to include everybody, and not just some, within its scope. As to the second of these, the state is able to apply its laws to the entire public and can call upon each person for his share of the needed con­tribution and support. It is because of these unique qualities, which by definition no private organization can possess, that certain functions can be performed only by government. When we dis­cuss the functions that relate to "preconditions" of life generally or of the market economy, it will be worth noting that it isn't the fact that some­thing is a "precondition" that makes it a proper function of government. The function becomes ap­propriate, instead, because it involves the sort of thing that can't be accomplished well without the use of either or both of the unique qualities of government. The fact that one or both of these qualities is needed means, in effect, that the thing is something that private individuals or as­sociations cannot effectually do for themselves. And the fact that the thing is a precondition un­derscores its value and importance, making it something that does need doing. I don't mean to suggest that only values that rise to the level of  "preconditions" merit being carried out by government, since there will be others that it will be convenient to a free society for the state to fulfill. But in all cases of state ac­tivity it is essential from a classical liberal point of view to weigh the advantage against the resulting level of taxation and of governmental power and presence.

I have already discussed some of the functions that might be counted as preconditions to life generally within a free society. In the preceding chapter we saw the need for a protected private sphere for each person. This included the indi­vidual's person and property. My discussion of the private sphere led, in addition, to a consi­deration of the need for a "commons" as a vitally necessary extension of the space within which the individual can exist and act. All of that dis­cussion applies here; and we need to keep in mind the subtle questions inherent in it, since a voluntaristic system of "mutual rights" presuppos­es a concept of the entity that we call an indi­vidual. Far from being an easy "given," which is what we usually assume it to be, that concept it­self presupposes a number of sensitive judgments about human beings and their relationships.

In the quotes I have cited that have stated the "nightwatchman" theory, we have seen the need for the state to use its coercive capability to pro­tect the rights of individuals, to militate against force and fraud, to preserve the peace and to de­fend the country from foreign invaders. All class­ical liberals, and not just those who hold to the exclusiveness of the "nightwatchman" function, see essential functions of the state in these areas. Adam Smith wrote approvingly about "that security which the laws in Great Britain give to every man that he shall enjoy the fruits of his own labor."¹⁸   Joseph Hamburger reports that Jeremy Bentham "found the justification for government, exercising its power through the law, in the need to protect in­dividuals from injuring one another."¹⁹ Thomas Paine conjectured that "were the impulses of con­science clear, uniform, and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish the means for the protection of the rest . . . Here is the design and end of government, viz., freedom and security."

There are serious questions, however, about how this is to be done. Even the security func­tion, when we think about it, proves not be to a "given." As with so many things, it involves a number of on‑going value judgments. The state, for example, could bring about a virtual elimina­tion of crime if it employed ten times the number of police it now employs and if it were to obtain help from informants in every family and group. This indicates that the absolute fulfillment of this classical liberal ideal would require totali­tarian methods, which in turn would be counter­productive to classical liberal values as a whole. A balance must, therefore, be struck between the satisfaction of the need for security and many other values. There is no precise formula, or principle, by which that balance is to be decided.

There are several issues relating to the security function that are worth discussing fur­ther:

• External defense. Even national defense raises serious issues. There is no small amount of judgment involved, for example, in determining how much a Communist takeover in Southeast Asia threatens our ultimate national security.  Some people will say that government has no right to take action unless there is an imminent threat of invasion of our own country. I believe very much the opposite and think that our protection in the long‑run requires us to take a global view of the strategic situation. Certainly I am not persuaded that as a matter of libertarian principle a free society is required to sit back until the forces against it have stripped it of allies and sources of supply. The long term interest of a free society isn't served this way. I am not willing to deduce our appropriate national defense posture from any such single‑minded "libertarian" premise. All principles of a free society should come, instead, from a consideration of the totality of a free society's needs. The penetration of Asia, Africa, Latin America and Europe by totalitarian movements threatens classical liberal values everywhere. Military action against such penetration isn't in­consistent with the proper function of government in providing for the defense of the society. I say this even though I know that we can't hope to prevent such penetration by military means alone. The "alienation of the intellectual" in America, Europe, and the rest of the world, which has been one of the key dynamic factors during the past century and a half, has to be reversed if the spread of Communism or of some equally antibour­geois ideology is to be prevented.

.  The draft. Classical liberals have discuss­ed the legitimacy of conscription into military service at length, especially in recent years. I remember that in 1952 Senator Robert Taft op­posed Eisenhower's concept of "universal military training" during their fight for the Republican presidential nomination. During the Vietnam War there was a strong movement in favor of a "volun­teer army" ‑‑ and such an army was put into effect after the war.

At best, conscription is a necessary evil from the classical liberal point of view. It directly removes the individual from the free existence that classical liberalism values so highly; and a large military establishment is something a classical liberal would much prefer not to have as part of his model of society. (A good example of this preference is the Jacksonian opposition to the Whigs' desire for a standing army.) If the draft is justified in a free society, it will have to be because, on balance, the benefits out­weigh these burdens.

There are times, in my opinion, when the bene­fits do indeed outweigh the undesirable aspects, again keeping in mind that they are to be evaluated in a calculus of classical liberal values. If the world were ever to adopt a general pattern of "normalcy," the draft would be clearly incompatible with a free society. But in the twentieth century, free societies haven't existed in a fundamentally hospitable world. Large‑scale military prepared­ness has been vitally important in a world charac­terized by such men as Adolf Hitler, Joseph Stalin and Mao Tse‑Tung. We can't foresee when it will cease being essential. The "spirit of Camp David" under Eisenhower, the "detente" under Nixon and the various appeasements under Carter have been manifestations of our intellectual division, lack of will, affluent complacency and moral relati­vism rather than the results of a true abatement of danger. These things tell us more about our­selves than about the world at large. Our own decadence even heightens the danger despite the appearance to the contrary that we enjoy because of our illusions.

Under such circumstances, at least three factors weigh in favor of the draft. First, it is essential that a free society have the manpower it needs to be prepared and to conduct the wars that it becomes engaged in. Volunteers may or may not appear in sufficient numbers and quality to meet this need. If they don't, the draft is imperative.  The argument has been made that a re­liance on voluntary service acts as a check against the government's ability to engage in unnecessary wars. This has at least a superficial appeal, and would in fact be true under conditions of "normalcy." But it should be considered suspect under conditions of worldwide Communist expansion. The extent to which Leftist ideology and the spiritual ennui of an age of affluence and of the common man have influenced the young is such that in all probability this would act far more as a check on military efforts that are unpopular with the Left than against really unjustified military "adventures."  This would be disastrous.  It is true that it might also serve as a check against fighting wars that we conduct interminably with only half a will to win, such as we did in Korea and Vietnam; but we need a solution for that lack of will other than one that will jeopardize our overall military capacity to respond in the "limited wars" that characterize the "protracted conflict" that is going on in Asia, Africa and Latin America.

Second, there is a question of principle about the equitable distribution of sacrifices for the preservation of a free society. The defense both of the society and of its freedoms is a value of the highest order. Its benefits accrue to every­one in the society. To use Milton Friedman's ter­minology, it has a "neighborhood effect." Its benefits are dispersed generally among the popula­tion, and the responsibility for it belongs to everyone rather than to a limited number of speci­fic recipients. Surely the burdens it involves should  be equitably borne. And it is a mistake to think of a "volunteer" as even presumptively someone who dislikes war less than others or who is eager for the adventure. Under many circum­stances, the "volunteer" is simply the man who is most patriotic, who understands the need and who is most conscientious about helping fill it. If we say that our wars should be fought only by such men, we are saying in effect that only our best must die. All others, we will be saying, may enjoy the benefits of a free society without carrying their portion of the risks and horrors of war. It would be hard to imagine a more unjust and in­defensible premise. I can't really think that a sound libertarian theory requires it.

The third factor is that there is a serious question about whether a large standing volunteer army is really more compatible with a free society than an army is that is composed mainly of men who are primarily civilian in orientation. When men come into military service by the draft, their outlook isn't fully integrated into that of the professional service. It is appropriate to think of them as "citizen soldiers," since most of them are passing through on relatively short terms of duty. An army of this sort is least inclined to become elitist or to become a political force in a sort of "banana republic" politics. This is something that the United States, fortunately, hasn't had to contend with; but we ought to keep it in mind in our political theory. In the United States right now there is the additional aspect that such a professional army may come to consist almost entirely of men of minority ethnic origin. Whether this poses any danger to the society will depend on the extent, if any, to which those minor­ities are susceptible to alienated ideology. That is a factor that needs to be judged empirically at any given point in time.

. Internal subversion. One of the angriest issues in the twentieth century has concerned the extent to which a government may legitimately pro­tect itself and the society from internal subver­sion. Modern liberalism (which isn't to be con­fused with classical liberalism) has often argued that law or government can do very little, that it must wait until there are overt criminal acts be­fore taking action (and that even then the moral sympathy of the intellectual community should strongly identify with the side of the rebel as against the police or the national guard). From the point of view of classical liberal theory, though, the question must be how best to accommo­date several extremely diverse values. Classical liberalism cherishes the "open market‑place of ideas" and the widest possible diversity of action; its whole purpose is to leave people free. It fears the state and wants to keep the policing function as limited as possible. On the other hand, the totality of its values requires that its own internal logic not be carried to the point of allowing the destruction of everything it stands for. If the society and its institutions are torn apart, everything it aspires to is sacri­ficed. It is because of this that I have never felt it a principled necessity that a free so­ciety be impotent in its own self‑preservation.  To the contrary, its defense, both external and internal, is the most sacred trust. The human values that classical liberalism hopes to serve have to be kept sight of, and the basic need for self‑preservation has to be assigned very great weight.

Nor can we afford to take the modern liberal's characteristic position that "internal subversion" is just a figment of the conservative's supposed paranoia. The civilization we live in is one that has suffered long‑term divisions and in which anti‑bourgeois alienation, with its many fervent ideological offshoots, is a fact of life. Our en­tire civilization is hardly "normal" in the sense that we can presuppose a deep consensus on values and institutions. And in this context the internal divisions within European and American society must be considered in light also of the existence of large totalitarian regimes and movements abroad. The problem of internal security is by no means divorced from these external dangers.

. Preventive measures. There is a classical liberal position, which I want to discuss for its own sake and not just because it has a bearing on the issue I have just considered, that government has no right to make any effort to prevent crime (or riot or revolution), but can only punish crime after it is committed. Wilhelm von Humboldt was among the earliest exponents of this view when he wrote that "I think that I may safely assert that the prevention of criminal actions is wholly outside the State's proper sphere of activity . . .The State must only adopt special arrangements for preventing crimes not yet committed, in so far as they avert their immediate perpetration. And all others, whether they are designed to counteract the causes of crime, or to prevent actions, harmless in themselves, but often leading to cri­minal offences, are wholly beyond the State's

sphere of action."  The rationale for this position is immediately apparent; Humboldt and the others who have held this view are concerned about the expansion of governmental power and police activity that would accompany efforts of prevention. And various factors, including the on‑going operation of free discussion, may.intervene to prevent the crimes from occurring anyway.   I must say, though,          that I cannot subscribe to the limitation as a general principle such as Humboldt has described it.   I think that he and the others of that school have too greatly lost sight of the potential vic­tim, and of the fact that that victim has rights that in a free society the community has an obligation to secure. Many situations come to mind: Are we obliged, for example, to say that a mentally ill person who has shown dangerous tendencies toward others has to be allowed to go free until a tragedy occurs? Or that the reasons for incarcerating a criminal have to be limited to punishment and cannot include the need to deter others or to prevent this particular individual from committing further crimes?   Or that threats of harm have to be tolerated until the actual act is imminent?   Or that  conspirators cannot be inter­fered with in meeting to make their plans for whatever future crimes they contemplate?   Or that a mob has to be allowed to gather force until it commits its first real injury? Or that an injunc­tion is never an appropriate remedy against an im­pending illegal act?  Again, we are back to a methodological point: the decision about whether we are to judge things such as this in light of a single principle that is to be applied rigorously, or whether we can evaluate means and ends to reach a judgment about what is most serviceable to all of the values, considered together, of a free society.   The premise that law should play no pre­ventive function is decidedly unserviceable if judged by the latter of these methods.   Many in­juries can hardly be made whole by later punish­ment or even restitution.   A widow or an orphan, say, cannot be "made whole" by any amount of mone­tary damages, even if they were collectible. 

           It isn't a sufficient answer to my point to say that “the illustrations you have cited by the questions in the last paragraph don't apply, since they refer to things that are crimes in their own right."   My questions have involved crimes only because the law declares them so to prevent a further train of action.   Their essence is preven­tive.   The view that the criminal law cannot legi­timately act in a preventive capacity is another

of the narrow, unpersuasive prescriptions that have been espoused by an unduly doctrinaire branch of classical liberalism. By lacking practicability, the position lacks soundness.  And the effect has been to make the classical liberal model less acceptable to most people, who do care about reali­ties.

          • The death penalty. Still another controversial issue that is within the area of "providing security" relates to the death penalty. This has been hotly debated in recent years, with the in­tellectual community mostly opposed to the death penalty and with the majority of average people pretty clearly for it. In this debate, I have felt that the issue is obscured by the customary analy­sis that is made of the purposes of criminal punishment. It is often said that retribution or vengeance is an unworthy purpose and that emphasis should be centered on rehabilitation of the cri­minal. Deterrence is a third purpose, but the death penalty's opponents deny that it has any deterrent effect.

I have long thought that this is an inadequate analysis of the reasons for criminal punishment. When it is defined and considered in this way, "retribution" becomes a straw man that is easily knocked down. We are told that it is ignoble because it demonstrates our own lack of elevation, our inability to control our brutal passions and to look beyond the situation to a higher plane. This perspective is readily available in a culture in which the Christian doctrines of "love thine enemy" and "turn the other cheek" have been at least part of its moral heritage. But I feel real dissatisfaction with any such expectation that we "raise ourselves above" the crime that has been committed. If rehabilitation and deterrence are to be our only concerns, there is nothing in them that reflects back on the crime itself. The murder, the rape, the act of terrorism ‑‑ each of these is to be erased, once it is committed, from the mind as though it were a fated given from an irretriev­able past. The victim is to go off to nurse his own sorrow and anger in his own unrequited way, perhaps without a person he loved, while the so­ciety turns its attention only to the reconstruc­tion of the wrongdoer or to how future crimes can be averted. How fantastic! No more morally per­verse a formulation is conceivable; and to think that it is put forward as the pronouncement of a saintly or noble morality! The crime is a fact. It cannot and should not be obliterated. Two great desidera­ta, both of them profoundly involved in civilized life, cry out to be satisfied. The first has to do with a consideration that in most other things we are quick to keep in mind: the need for an equitable parity between individuals, the primor­dial notion of equality of right that underlies the classical liberal concept of equal rights and the ancient concept of equity and fairness arising out of a parity of individuals and of values. Here a man comes home to find his wife strangled by a burglar: Is nothing to happen to the other man beyond rehabilitation and deterrence?

The equitable concept of parity is outraged if the balance isn't restored, and restored in good measure. The deceased victim has been de­prived of life and of all the human values that go with it, and the surviving victims have been left with an aching void that was created by the wholly unnecessary and yet irreversible departure of the loved one. Are we really indulging a "lower passion" if we feel strongly that our notions of fairness and of equal right should be served by making the murderer suffer a loss of his own (at least equal to, but more justifiably even greater than the one that he has created, since an equal loss just "restores" the original parity without taking into account the deserved nature of his loss and the undeserved nature of that of his victims)?

The second desideratum has to do with the civilized community's vital interest in the moral order. We may shrug off the requirements of mo­rality in some things, and in a relativistic age we do this far more than we should, but an out­rageous breach is something else. The preserva­tion of the moral order is an interest that is so profound, so intricately woven into the entire fabric of people's relations together that it is superficial in the extreme to reduce it to the limited notion of deterrence. Even in a secular age, the moral order needs to exist as a virtual metaphysic in the consensus that underlies the community. It is not appropriately a matter of simple statistics or of mundane cause‑and‑effect. It has to have a spiritual hold and to be felt, in the deeper identification that each civilized individual has with humanity as a whole, as something immutable and sacred. And how is this to be true if the most serious breaches of it don't give rise to any expression that recognizes the outrage that has been committed against it? One of the main functions of criminal punishment must be to symbolize the reestablishment of the moral order in its rightful primacy. Whether this con­tinuing reenforcement of moral sensibility will show its effects directly in comparative statistics about the homicide rate can never be sure; the death penalty is only one factor among many that have a bearing on the incidence of serious crime. But that some such manifestation of the moral will and commitment of the community is desirable is clear on more pervasive grounds.

. "Victimless" crimes. Another issue that relates to “security" has to do with so‑called "victimless" crimes. This has been discussed a great deal recently in connection with the laws against smoking marijuana and the various laws about sexual relations between consenting adults. It is interesting how much these issues recur, since it was Wilhelm von Humboldt again who voiced the argument over a century ago: "To punish ac­tions . . . which relate to the agent only, or which are done with the consent of the person who is affected by them, is forbidden" by libertarian principle. "None of the so‑called carnal crimes (rape excepted), whether creating offence or not, attempting suicide, etc., ought to be punished, and even taking away a man's life with his own consent should not be, unless the possibility of a dangerous abuse of this exemption should make a criminal law necessary." Jacob Burckhardt made much the same point: "It is a degeneration, it is philosophic and bureaucratic arrogance, for the State to attempt to fulfill moral purposes direct­ly, for only society can and may do that."²⁰   John Stuart Mill discussed the issue in On Liberty: "The right inherent in society to ward off crimes against itself by antecedent precautions, suggests the obvious limitations to the maxim, that purely self‑regarding misconduct cannot properly be meddled with in the way of prevention or punish­ment. Drunkenness, for example, in ordinary cases, is not a fit subject for legislative interference; but I should deem it perfectly legitimate that a person who had once been convicted of any act of violence to others under the influence of drink, should be placed under a special legal restriction, personal to himself . . . The making himself drunk, in a person whom drunkenness excites to do harm to others, is a crime against others. So again, idleness, except in a person receiving support from the public, or except when it constitutes a breach of contract, cannot without tyranny be made a subject of legal punishment; but if, either from idleness or from any other avoidable cause, a man fails to perform his legal duties to others, as for instance to support his children, it is no tyranny to force him to fulfill that obligation . . . Again there are many acts which, being directly injuri­ous only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners, and coming thus within the category of offenses against others, may rightfully be prohibited . . . Fornication, for example, must be tolerated, and so must gambling."²¹   He then continued his discussion into several subtle areas.

Whether or not I agree with Mill in all of his conclusions, I am satisfied that his method was correct in starting with a strong presumption in favor of letting everyone do as he pleases and then weighing the injury or prospect of injury to others. His principle doesn't seem nearly so cut-­and‑dried as is common with those who ordinarily base their argument on an opposition to the punishment of "victimless" crimes. If we saw clearly that a type of conduct is purely personal, with no injurious effects upon other people or upon the person's performance of his own responsi­bilities, then we could justifiably declare the conduct "victimless" and I would agree (subject to the limits that I will be expressing) that it would be an interference with freedom to declare it cri­minal. But few of the things that are often called "victimless" crimes are fully of that character. Even "fornication" isn't without damaging effects if we conclude, as I do, that the limitation of sex to marriage is of real importance to a free society. I oppose the pursuit of it through the criminal law not because I consider the conduct purely personal, but because an effective and fair administration of the law seems impossible.

As we have seen, Mill expressed the view that drinking is personal unless the drinker has shown that he is irresponsible or dangerous. I have a hard time agreeing with this assessment, especial­ly in the age of the automobile (which is something Mill didn't have to consider). The killing of many thousands of people every year by drunk driv­ers is an egregious violation of the security of the public. Each person who is killed or maimed is to that extent deprived either of life or its enjoyment. When this enormity is fully considered, there is substantial weight on the side of Prohibition even in a libertarian calculus, although we are so used to accepting the statistics about automobile accidents that we don't often think of the issue in this light. Today, there is a good deal of insensitivity that has to go into any viewpoint that drinking is purely a personal matter. Just the same, I am opposed to Prohibition, since our national experience with it a few years ago indicated that it was thoroughly unenforceable and that it led to a widespread contempt for authority. Intermediate legal steps seem most jus­tifiable after that experience. These could in­clude a strict enforcement of penalties against drunk driving.

Libertarian principles have been cited for decriminalizing marijuana, but it seems to me that the situation is different in this instance than it is with alcohol. Marijuana is a relatively new develop­ment in American culture. We might yet hope that it isn't permanently established. Its use is currently prohibited and we aren't witnessing a public backlash at all comparable to the reaction against Prohibition. I don't accept the suggestion that marijuana is "victimless"; we shouldn't create a willful insensibility to the actual victims of drug abuse, as though they don't exist. If we truly keep in mind the many factors that have to be considered in the weighing of rights and obligations that are important to a free society, I personally believe that the long‑term interests of such a society will be well served if the use of marijuana is kept from becoming an established vice. This is another instance in which there is a conflict between the competing concepts of "free­dom," even within libertarian thought. To me, freedom is less a matter of "doing your own thing" than of living within a principled framework of correlative rights and obligations.  [Note in 2003: The “war against drugs” has proved so ineffectual, so expensive, and so damaging to traditionally accepted rights and legal procedure that I have now concluded that just the opposite approach should be taken to protect American society.  I favor the legalization of pleasure drugs, a provision of them without cost by the government to the user, drug-treatment programs to seek to alleviate ensuing misuse, and severe criminal penalties against those who become addicts and/or who commit serious crimes while on drugs.  A without-charge provision of drugs will take away all profit from those who now benefit from drugs’ cultivation and distribution.   Agricultural interests in other countries will have nothing to gain by raising the crops; and pushers at all levels will have to seek other ways to make a living.  Thus, the major impetus behind the existing use of pleasure drugs would be taken away.  Only people who, on their own, want the drugs would take them – a much smaller number than those induced by pushers to take them today.]

It is possible to imagine a type of activity that would lead to no injuries to other people and to no unsupported families. Let us suppose that the conduct were only to be incapacitating or debilitating to the actor himself. In a really "victimless" situation of this sort, the argument for a laissez faire attitude on the part of the law would be strong, of course; but I would point out that even here it would be a mistake to apply an absolute principle. It is important that a free society recognize everyone's right to live his life badly as well as constructively, since any general paternalism would be a net loss to freedom, even with everything considered. But if we were to suppose that large numbers of people were to make themselves vegetables by becoming opium addicts ‑‑ even if they had no dependents, committed no injuries and somehow refrained from

appealing to the rest of society for relief ‑‑, we would have a situation that could weaken a free society so severely that considerations relating to the general health of the society would come into play. Here again, the appropriate classical liberal method would be to look not just to the individual himself, but to the overall precondi­tions of a free society. In exercising such judg­ment, however, we should seek an appropriate

balance; even the concern about "preconditions" can be overdone. All of the factors, centrifugal and centripetal, need to be given weight.                                                                

So far, I have discussed several issues that relate to the state's function of providing security, but they certainly haven't exhausted the subject. For example, my brief discussion of the death penalty barely touched the much larger subject of the administration of justice. In the rest of this section, we will examine a number of additional functions of government that pertain to the broad category of “security.” The read­er will recall that the issues relating to it came up simply as parts of a larger concern about "the preconditions for life generally within a free society." I will be continuing my discussion of those preconditions.

          .  Establishing norms. There are broad areas of life in which a framework for human interaction can be established by setting legal norms.  These norms can take the form of standards that meet the Rule of Law criteria, and as such they can become operating data that individuals can use in planning their activity.  Since these norms es­tablish a "common denominator" that applies to everybody participating in a certain activity, there is no comparative injury to anyone's competi­tive position, at least within the industry itself.   Public health, sanitation, fire, building code, safety and ecological regulations can all be of this sort. They serve an important "frame­work" function. So that they don't involve a free substitution of judgment for the acting man's, there is value in having such regulations do no more than establish minimums or required objectives, leaving the means of accomplishing them to the actor. And they need to balance their benefits, on the one hand, and their costs and inhibiting effects, on the other. Without such balancing, they can be more injurious than beneficial. But if they are formulated with a wise balance, they can play a legi­timate role in a free society. In some things, it will be a vitally necessary role. It would be a matter of valid complaint, by the possessors of other affected rights, if the norm were not estab­lished.

• Guaranteeing subsistence.  Chapter 7 discussed the problem of human incapability and what the state may validly do to alleviate it. We saw that classical liberals have been divided over what sort of relief, if any, should be given. I felt that a guarantee of subsistence is sound if the system is politically decentralized and is kept sufficiently unattractive that the re­cipients are motivated to regain their indepen­dence. This offers the "social cement" of placing a floor under those in need, and at the same time avoids escalating into a politically manipulable paternalism. It meets basic human needs without approaching the massively abused system that we have today, which in effect provides "socialism for the poor."  [Note in 2003: It now appears that vast displacement of labor will occur not just because of the competition of hundreds of millions of low-pay workers in a global market environment but even more because of non-labor-intensive technologies that are coming into being as part of the computer and scientific revolution.  Unlike virtually all of my free-market-minded friends, I am convinced that this displacement will pose a vast challenge to the classical liberal vision.  I have made recommendations in my book The Emerging Crisis of Economic Displacement (published to this Web side in early 2003) that are shocking to those friends but that I consider essential if classical liberalism is to remain relevant.]

• The judicial function. Still another function lies in the state's role as the final arbiter of disputes. The people involved in a dispute can't adequately be "judges in their own case."  They need a socially objective source of judgment, which they can obtain either by agreeing upon an arbitrator or by submitting the case to decision by a court. The dispute needs to be resolved so that everybody can get on with his life and so that the rights of all concerned, including the community at large, aren't disturbed by on­-going friction and perhaps violence. The (1) social consensus that supports the state combines with (2) its clearly predominant coercive power to make it the only agency that can put disputes definitively to rest. This function of the state has been favored by everyone except the anarchists. Anarcho-capitalists envision a society in which disputes will be handled by agreement and private forces; but instead of "minimizing coercion," I should think that arrangements such as those would escalate it. Instead of one delimiting force, there would be many contending centers of force. The ex­pectation that people would see the foolishness of fighting and would acquiesce in reasonable arbitra­tion seems to take an unduly optimistic view of human nature.

. Education. Considerable diversity has existed within classical liberal thought about the state's role in education. Advocates of the "nightwatchman" school have, of course, opposed any tax support for education. Herbert Spencer wrote, along these lines, that "inasmuch as the taking away, by government, of more of a man's property than is needful for maintaining his rights, is an infringement of his rights, and therefore a reversal of the government's function towards him; and inasmuch as the taking away of his property to educate his own or other people's children is not needful for the maintaining of his rights; the taking away of his property for such a purpose is wrong."²²  This view was shared by Bastiat and Burckhardt; and recently Nathaniel Branden has written that "education should be liberated from the control or interven­tion of government, and turned over to profit­making private enterprise."

Many classical liberals, however, have favor­ed tax‑supported and compulsory education. Jef­ferson urged that we "establish and improve the law for educating the common people." He felt that a broad base of education was a necessary counter­weight to elites: "Let our countrymen know that the people alone can protect us against these evils, and that the tax which will be paid for this purpose is not more than the thousandth part of what will be paid to kings, priests and nobles, who will rise up among us if we leave the people in ignorance." Still other benefits were apparent to Thomas Macaulay: "I believe, Sir, that it is the right and the duty of the State to provide means of education of the common people . . . (C)an it be denied that the education of the common people is a most effectual means of securing our persons and our property? Let Adam Smith answer that ques­tion for me. His authority, always high, is, on this subject, entitled to peculiar respect, because he extremely disliked busy, prying, interfering govern­ments. He was for leaving literature, arts, sciences, to take care of themselves. He was not friendly to ecclesiastical establishments. He was of opinion, that the State ought not to meddle with the education of the rich. But he has expressly told us that a distinction is to be made, particu­larly in a commercial and highly civilised society, between the education of the rich and the education of the poor. The education of the poor, he says, is a matter which deeply concerns the commonwealth . . . This, then, is my argument. It is the duty of Government to protect our persons and property from danger. The gross ignorance of the common people is a principal cause of danger to our persons and property. Therefore, it is the duty of Govern­ment to take care that the common people shall not

be grossly ignorant." Along the same lines, Rich­ard Cobden stressed the need for widespread educa­tion.  He said that "nature does not produce such monsters as an ignorant or vicious community, and virtuous and wise leaders."  He supported "the principle of State education."  Lord Robbins added that "the educational function of the state has always figured large in the philosophy of the free society."

              Milton Friedman made an excellent discussion of this subject in Capitalism and Freedom, consi­dering it in the context of all the applicable classical liberal values. He argued that the use of tax resources for basic education was legitimate because of the "neighborhood effect" inherent in a widely dispersed literacy. "A stable and democra­tic society is impossible without a minimum degree of literacy and knowledge on the part of most citizens and without widespread acceptance of some common set of values . . . There is therefore a significant 'neighborhood effect.'" His conclusion was that "both the imposition of a minimum required level of schooling and the financing of this school­ing by the state can be justified." But he distinguished  between these elements and "public education" as such. "A third step, namely the actual administration of educational institutions by the government, the 'nationalization,' as it were, of the bulk of the 'education industry' is much more difficult to justify." He proposed a"voucher plan" as a way to accomplish the first two objectives without the government's actually running the schools. "Governments could require a minimum level of schooling financed by giving parents vouchers redeemable for a specified maxi­mum sum per child per year if spent on 'approved' educational services. Parents would then be free to spend this sum and any additional sum they themselves provided for purchasing educational services from an 'approved' institution of their own choice. The educational services could be rendered by private enterprise for profit, or by non‑profit institutions. The role of government would be limited to insuring that the schools met certain minimum standards.”  He didn't believe that the case for this sort of assistance was nearly so clear for higher education, however; and he sought ways to finance professional and vo­cational training that would involve having the individual who benefited from it repay its costs (on the ground that the training had, in effect, created an income-producing asset for which the individual could well afford, over a period of time, to pay).

In my opinion, Friedman's analysis is an outstanding example of how classical liberal desiderata should be considered and met ‑‑ and of how the power of the state shouldn't be built up beyond what is useful to a free society.   His pro­posal takes into account the structural precondi­tions of a free society as they were stressed by Jefferson, Macaulay and Cobden. If the proposal were im­plemented, the general educational needs of the public would be provided for with whatever degree of liberality the public itself would determine. The level of financial support for education wouldn't need to be lower than it is today. But Friedman has been careful to keep the state's role as limited as possible, and to maximize the market and parental choice. (I would imagine that most Americans favor public education because they be­lieve that it is the only way to obtain a broad education for the public. They haven't dissected the issue with the care that Friedman has. They would be surprised if they realized that their reason to support public education isn't the same as modern liberalism's. The contemporary "liberal" doesn't have any interest in the voucher plan. This would seem surprising if we were to start with the premise that he is mainly concerned about assuring that everyone gets an education. But it isn't suprising if we realize that he also wants the government, and preferably the federal government, to control the schools. One thing he doesn't do is to want the parents to have the primary control, with the diversity that that suggests. Since he mainly seeks a strong govern­mental role, his approach and Friedman's are ir­reconcilable. If the public understood these things, I would surmise that an overwhelming ma­jority of the American people would agree with Friedman.)  [Note in 2003: The modern liberal does not just want control by government; there is also the aspect of control by the professional elite that makes up what is today called the “educational establishment.”  That establishment tends strongly to control schools even in a system decentralized fully to the local school board level.  The voucher system, by giving parents a much greater say, would tend to jeopardize that establishment’s exclusive role.  This is an important point for classical liberals to realize; it isn’t just “abuse by government” that is a problem; the Left’s “march through the institutions” broadens the problem in include much more than government alone.]  

2.      Functions that establish preconditions for a market economy. I don't intend to suggest that there is a sharp delineation between the pre­conditions I have been discussing and those I am about to discuss under this heading, since there is little reason to make a sharp dichotomy between the economy and the other aspects of life. The separation here is for convenience rather than because different principles apply.

• Anti‑trust. In the preceding chapter I discussed the relationship of the problem of "aggregates" to the classical liberal desire to reduce coercion as much as possible. One of the issues that related to aggregates per­tained to monopolistic restraints on trade. Classical liberals have long been divided among themselves about whether legislation in this area is legitimate. Some consider monopoly a negligible problem in a free market in the absence of govern­mental favoritism; and they look upon refusals to deal, tying practices, price-fixing agreements, etc., as exercises in personal freedom. Ludwig von Mises wrote that "the great monopoly problem mankind has to face today is not an outgrowth of the operation of the market economy. It is a pro­duct of purposive action on the part of govern­ments. It is not one of the evils inherent in capitalism as the demagogues trumpet."²³   Ayn Rand has added in the same vein that "the only actual factor required for the existence of free competi­tion is: Laissez faire! ‑‑ which, in translation, means: Hands off!"

It is probably safe to say that virtually all classical liberals, including me, believe that the problem of concentration and monopolistic practice has been grossly exaggerated and misstated by the opponents of a market economy. Frank Knight has written that "the public misconceives its nature and grossly exaggerates the extent and power of business monopolies."²⁴   Milton Friedman has con­tradicted the Left's emphasis on the power of the top 200 corporations when he has observed that "the most important fact about enterprise monopoly is its relative unimportance from the point of view of the economy as a whole."

Just the same, there is a substantial school within classical liberalism (to which I again belong) that sees monopolistic restraints on trade as a genuine problem. This school believes that the state should act against such restraints to maintain the preconditions of a healthy market. Lord Robbins says "there is a real monopoly problem in free societies" and that "it is unwise to resign ourselves to doing nothing about it." Herbert Hoover shared this view, and it is worth noting Henry Simon's thoughts about enormous aggregates. Speaking of the "gigantic corporation," he said that "we may recognize, in the almost unlimited grants of powers to corporate bodies, one of the greatest sins of governments against the free ­enterprise system. There is simply no excuse, ex­cept with respect to a narrow and specialized class of enterprises, for allowing corporations to hold stock in other corporations ‑‑ and no reasonable excuse (the utilities apart) for hundred‑million-­dollar corporations."²⁵

         I share this point of view. The basis for my agreement lies in the theory I spelled out earlier: that coercion includes more than just violence; that the reduction of coercive potential is a goal that is optimized when men act as indi­viduals, and that each aggregate must thereafter be scrutinized carefully for its effect on a free society; that there is, accordingly, more of a presumption against than in favor of aggregates; and that freedom in a market economy is violated if men have to live their economic lives subject to the coercive pressures of monopolies and combi­nations.

Classical liberals will be inclined to say that if a monopoly comes into being it will be a consequence of the old Protectionist economics against which the advocates of a free market fought for so long. They don't see monopoly as so much a problem of the market as of a tendency away from the market. At least to this point, I agree. A monopoly is contrary to the market and goes against its philosophy. It isn't the fault, properly speaking, of capitalism itself, but is ra­ther its enemy. Nevertheless, we need to recog­nize that the drives toward collusion, undue growth and coercive exclusion of competitors exist as cancers within the nexus of the market and need to be fought there. Classical liberalism should it­self lead this fight. Its principal opponent since 1848 has been socialism, but up until then the main enemy had been Mercantilist monopolies and protectionism. Classical liberalism fought hard to open things up, to remove regula­tions, barriers and exclusionary practices. It sought an economic system in which each person could pursue his own self‑interest and in doing so benefit everyone else; but this was to occur through the production and sale of goods in the market in open competition with others. There is a type of self‑aggrandizement that seeks the shelter of protected, favored sinecures; and it is alien to the classical liberal con­ception. During the century that classical liber­alism has been on the defensive there has been a tendency to defend the existing market against all criticisms.  This is an unfortunate position for classical liberalism to be in because as a philo­sophical movement it needs to retain a vital re­formist relationship to any existing market or set of institutions.  I don't mean reform in the sense of moving that market away from classical liberal values. Rather, I am referring to the need constantly to reassert those values.

• Providing information. The market presup­poses a certain flow of information, and several functions of government relate to facilitating that flow. When the state issued coins under the old metallic standards, it was engaged in this function, since it was standardizing the weight and assay so that each recipient of the coin wouldn't have to determine those for himself. A "Bureau of Standards" that establishes common weights and measures similarly performs an informa­tional function in aid of the market. It is able to do this especially well as a governmental agency because of the general social consensus about its disinterestedness and its authoritativeness. When our county governments maintain "clerk and record­er" offices to maintain records of deeds and other official or important private documents, they create a trustworthy source of information that is accessible to everybody. A Secretary of State's office, which serves as a central filing place for corporate, limited partnership and other business entity documents, per­forms a like function.

These functions are “in aid of the market” by establishing an informational framework for action within it. The legitimacy of government's role with regard to them has hardly been questioned, except that the "nightwatchman" school's blanket rhetoric denies them and the anarcho‑capitalist would argue that they could be done by private agencies. A classical liberal will prefer that anything be done by private enterprise if it can be (and we see this in the area of real estate titles when private abstract companies perform many of the services that might otherwise be done by the county recorder's office). We need to weigh, though, whether a given function can be accomplished as well through private action, and we won't always find that it can be. The "central filing" functions would require either a natural monopoly or a difficult pooling arrangement to share the information. Standardizing weights and measures requires a continuingly authoritative source, which is something that may or may not be possible for a private enterprise. In these con­nections, a question emerges about how jealously a classical liberal should guard against state functions that are both innocuous and arguably necessary. The anarcho‑capitalist must do so to sustain his case against all government. But a classical liberal is primarily concerned with for­mulating principles to prevent the abuse of govern­ment. An undue concern with issues such as I have just discussed can hurt his ability to convince others that he is willing to support a system that will be demonstrably workable.

• A body of law. The framework for the mar­ket includes the courts' enforcement of contracts and of the rules of tort and criminal law. The entire body of property and commercial law ‑- ­which deals with such things as mortgages, liens, easements, water rights, etc. ‑‑ is also part of the framework. A complex economic system such as ours couldn't exist without a major on‑going au­thoritative system for articulating and applying such principles.

• The monetary system. Members of the "nightwatchman” school have argued that the state doesn't legitimately have the function of provid­ing the market with a monetary system. They ar­gue that commodity money, such as the precious metals, is better and that a system of "free bank­ing," which would be policed by the circumspection people would show as they entrusted their money only to honest and conservative bankers, would be sufficient. Several years ago, I studied under Ludwig von Mises for a brief period for the purpose of finding out more about his "free banking" idea, which isn't fully explained in his writings; but I wasn't able to obtain any further explana­tion of it [due to circumstances that weren’t anyones fault in particular. For that reason, I don't want to op­pose it totally, since it may have a soundness that I don't see. But, subject to this hesitation, here are some of the flaws that I believe are present in the concept: (a) It is hardly practi­cable from the standpoint of the average individual. Such a person can't be knowledgeable about every­thing. If, for example, he is a fine dentist, he can hardly be expected to "wear a large number of other hats" well, such as also to be a conscien­tious citizen, a devoted father, an auto mechanic, a trained gardener, etc., all of which the modern period expects us all to know a lot about ‑‑ and beyond those things to be able to judge adequate­ly the inner workings of his local banks. Even if he made the ideal choice for the bank he should trust, he couldn't keep abreast of changes in management, ownership or policy. If he is to be well served in conducting his own life as a self-­reliant individual, which is something that class­ical liberalism rightly expects of him, he needs a stable, dependable banking system that he can virtually take for granted as a given. This calls at least for a regulatory framework for banking. (b) I was never able to satisfy myself that a system of "free banking" would avoid the recurrent cycles of expansion and contraction that have been characteristic of the past. This is what I had hoped to discuss with Dr. Mises. It is not enough to say that "cycles are a fact of life that wouldn't have too severe an effect if the market were free to adjust quickly in the downward phase." Such a premise is inappropriate to classical li­beralism, since it fails to take into account the extent to which the business cycle falsifies some major underlying assumptions upon which the market economy is based. Classical liberalism appropriately stresses the moral imperative to save, work hard and accumulate property to become self-­reliant. But what does this say to industrious men who lose their jobs because of recession or depression, which is something totally beyond their individual control; or to people who prepare ade­quately for their old age, only to see inflation eat away the value of their savings; or to families who lose their homes to foreclosure during economic crisis? I think strongly that the busi­ness cycle is something that classical liberalism has had to solve, at least in an overall sense, if the individualism that it values is to be workable and is not to have an important element of sham in it. A stable economy is so vital a precondition to individual effort that we cannot possibly accept "periodic adjustments" if they amount to severe dislocations. (c) We can view the issue theore­tically, but it is also imperative to see it in its historic context. If a workable "free banking" system is possible, the historic opportunity for classical liberalism to have implemented it was during Van Buren's day in 1837. The issue is largely academic today. The question right now has to do with how we can address the issue in light of contemporary economic and political realities. (W. H. Hutt has written an excellent monograph in which he points out that many of the differences among political thinkers arise because of the differing extent to which they are relating their thought to current possibilities. He makes the point that it would be helpful if thinkers always made it clear just how close they are attempting to stay to the realities of their time, since what is acceptable at one level of abstraction won't necessarily be acceptable at another.)²⁶

The assurance of adequate institutions for a stable monetary system, including the system of banking and credit, is an important func­tion of government. This is a function that governments have performed with conspicuous dis­honesty and ineptitude for thousands of years. A sound classical liberalism should, in my opinion, see to it that government does the job and does it conscientiously. Frank Knight observed that "up to a point, socialistic critics have been right in regarding cycles and depressions as an inherent feature of 'capitalism.' Such a system must use money, and the circulation of money is not a pheno­menon which naturally tends to establish and main­tain an equilibrium level." He suggested that "remedial action is a matter of economic under­standing and of political intelligence and admini­strative competence, in matters of an essentially technical character." Fortunately, the technical answers are available. It isn't as though econo­mic theory didn't have the solutions. I consider Milton Friedman's proposals sound.  [Note in 2003: It is no longer clear to me that Friedman or anyone else “has the answers” about trade cycle theory.  In the mid-1980s, Friedman predicted runaway inflation because of what the Federal Reserve was doing.  That did not occur, and it is evident that something was lacking from his theory.  It appeared during the 1990s that Alan Greenspan and those who advised him were masters at the art of fine-tuning the economy; but then, as the decade came to a close, all of that seeming mastery was lost.  I return, thus, to the situation I found myself in before attending Ludwig von Mises’ seminar, of thinking that a problem existed at the heart of a market economy that desperately needed resolution.]  They are to provide central monetary management with a statu­torily fixed responsibility to maintain the volume of money and credit at a stable level, with only such increase as will approximate the real growth of the economy and thereby avoid a slow fall of the price level; or more radically to go to a 100% reserve banking system that wouldn't be subject to expansion and contraction. The trouble lies, even with these proposals that are much closer to what is possible today, in the fact that fundamental classical liberal reforms are not likely to be made in an age in which a "modern liberal" Zeitgeist prevails. Perhaps an even more insuperable difficulty lies in the existence of a large and politically powerful labor union move­ment ‑‑ and in the concomitant fact that our so­ciety is not about to face up squarely and honestly to its implications. The chronic setting of wage rates above the market rate, both by collective bargaining and by minimum wage legislation's ef­fect on the entire pay scale, causes continuing unemployment which isn't blamed on those actual causes, but which is blamed on insufficient econo­mic activity. This in turn leads to a hue and cry for "easy money," with the resulting inflation­ary spiral. The eventual crackdown leads to recession. This has been the pattern during the Keynesian years following World War II. There is no way to achieve a stable monetary system until the ideological factors that underlie unions and minimum wage legislation are changed. The inabil­ity of contemporary society to cope with reality is a "contradiction" similar to those of which Marx was fond of speaking. During the Nixon years, it led into the morass of price and wage controls. The prospect today is that it won't lead to the adoption of classical liberal reforms, but rather of socialistic solutions, such as is contained in the suggestion that government should be the "employer of last resort" to hire anyone who can't get a job.  [Note in 2003: My much more recent perception that the displacement of work will create a crisis for a market economy (as well as for all other systems) has precisely led me, reluctantly, to what I clearly would have considered a socialistic solution when I wrote this passage: that of a guaranteed income through shared ownership of the economy as a whole.  See my book The Emerging Crisis of Economic Displacement.   Careful readers will note that I have always been conscientiously concerned with whether a free society “works for people,” so the concerns I voice in this recent book are not of a new character to me.]

The solution doesn't lie entirely in technical competence, as my quote from Knight (which is per­haps too much out of its context for this purpose) would suggest. If we were to rely on governments to "fine tune" the economy on a continuing‑adjust­ment basis even with stability as the objective, we would probably wind up with little stability indeed. Friedman's goals will be better assured if the techniques for stability are required by a legal norm that will amount to a Rule of Law for the subject and when that norm becomes sanctified by a cultural and political untouchability similar to that which the supporters of the gold standard felt was necessary to keep nations on gold. We can easily see from this just how far we are from attaining such a goal.

             Licensure. Licensure is one of the economic functions of government. It has grown rapidly, but from a classical liberal point of view not soundly, during recent years. The over­whelming number of undertakings now require a license, and often the law prohibits anybody who doesn't have a license from engaging in it. This limits freedom and represents a major movement backward into a status society. Milton Friedman has included a perceptive discussion of licensure in Capitalism and Freedom. He distinguishes between three different levels of regulation: registration, certification and licensure.  I am more persuaded than he is by the usefulness of certification, by which a governmental agency certifies quality or competence; but I agree with him that there is little excuse in a free society for the state's declaring that only people who hold a license may operate legally. This amounts to a denial of consumer choice and a presumptuous assertion of governmental infallibility. It says, in effect, that the public should have no right to use someone's product or services even though it has had ample warning about him because of his failure to obtain certification. We need to remem­ber that any exclusive prerogative, such as is given to licensees, is rarely motivated out of a pure desire to protect the public, since certifica­tion would be sufficient for that purpose.   Behind the scenes, there lurks the self‑interest of those who benefit by being shielded from competition and of the politicians who play upon the support of vested interests. The movement toward increasing licensure is only partly a result of a growing de­sire to raise standards. At least as much, it manifests the "grab‑bag" nature of our pork‑barrel politics in an age of public apathy and of active special-interest groups.

• Free trade. Classical liberal intellectuals, as distinguished from many conservatives in the general population, have long favored an overall system of "free trade," opposing trade restrictions such as tariffs or quotas. Cobden and Bright a century and a half ago in England favored a uni­lateral removal of tariff barriers, which means that they favored it even if such a policy weren't reciprocated by other nations. Much more recently, Milton Friedman endorsed the same approach when he wrote that "our tariffs hurt us as well as other countries. We would be benefited by dispensing with our tariffs even if other countries did not." It is well known that the Jeffersonian‑Jacksonian party in American history, which was philosophical­ly classical liberal, opposed tariffs as an instru­ment of protectionism. They favored the tariff only to the extent needed for revenue. John Stuart Mill opposed tariffs in their protectionist aspect, with one exception: "The only case in which, on mere principles of political economy, protecting duties can be defensible, is when they are imposed temporarily (especially in a young and rising nation) in hopes of naturalizing a foreign indus­try, in itself perfectly suitable to the circum­stances of the country. The superiority of one country over another in a branch of production, often arises only from having begun it sooner." A second exception stems from the need to maintain the viability of certain indus­tries vital to the national defense. Al­though these businesses wouldn't prove economic on an ordinary consumers' market, they are of such a nature that it is important to have them operating quickly in time of war. Classical liberals will arrive at their assessment about a specific indus­try at a certain point in time after wrestling with ambivalent desiderata: they are anxious to support whatever is needed for national defense, but they don't want this exception to become a facade for protectionism, which it easily could unless the protection is convincingly related to the national defense objective.  [Note in 2003: My later discussion of the theoretical basis for free trade vs. protectionism in Chapter 18 of The Emerging Crisis of Economic Displacement takes the reasoning considerably further than the rationale expressed here, and arrives at somewhat different conclusions.  See that chapter, also, for some very different thoughts on the subject of taxation and redistribution.]

               • Taxation. Needless to say, classical li­beral tax policy is far removed from the system that now exists in the United States. Its policy would oppose using taxation to redistribute income or wealth. The consensus within classical liberalism heavily favors the principle of proportionality, which would have each taxpayer pay the same percentage of his income. People with higher income would pay a higher amount in absolute terms, in keeping with their greater ability to pay; but they wouldn't pay a larger proportion. Proportionality avoids the threat of becoming confiscatory, and it goes far toward removing taxation as an instrument of social engineering.  It becomes an even stronger bulwark against these abuses if a community adopts it as a clear principle that deserves to be jea­lously guarded. Yet another major advantage of proportionality is that it makes possible a sweep­ing simplification of what is otherwise a monstrous tax system. Because of the sharply graduated rates, today's income, estate and gift taxes spawn count­less deductions and exemptions, schemes for shifting income from one accounting period to another and from one taxpayer to another, special depreciation breaks, favored "capital gains" tax rates, and various "tax shelters." Proportionality would cut profoundly into that need for complexity.

It is significant that Adam Smith favored pro­portional taxation. John Stuart Mill did, too, although he modified it some by endorsing Jeremy Bentham's support for an initial exemption that would permit a basic subsistence income to go un­taxed: "Setting out, then, from the maxim that equal sacrifices ought to be demanded from all, we have next to inquire whether this is in fact done, by making each contribute the same percentage on his pecuniary means. Many persons maintain the negative, saying that a tenth part taken from a small income is a heavier burthen than the same fraction deducted from one much larger: and on this is grounded the very popular scheme of what is called a graduated property tax, viz. an income tax in which the percentage rises with the amount of the income . . . The mode of adjusting these inequalities of pressure, which seems to be the most equitable, is that recommended by Bentham, of leaving a certain minimum of income, sufficient to provide the necessaries of life, untaxed . . . Each would then pay a fixed proportion, not of his whole means, but of his superfluities." He argued that income that is saved shouldn't be taxed, since a tax is paid on the income or interest it produces. If the principal is taxed and then the income it produces is taxed, too, the effect is a double tax on the original savings as compared with income that, after having been taxed, is immediately consumed. Of course, today, when we levy a "sales tax" on consumption purchases, we impose a double tax with respect to the income that the money spent represents; and the sales tax amounts to a triple tax with regard to investment income that is spent.   Unlike Mill, however, we have long since gotten away from any prejudice against multiple taxation.  One can't help but feel that, from a classical liberal standpoint, we have retrogressed.

In our own day, Milton Friedman has agreed with Mill and Bentham in favoring such a "flat-­rate tax on income above an exemption." With this as his starting‑point, he goes on to urge the elimination of all double taxation and special preferences. He would have us abolish the corporate income tax so that, whatever the legal form of the business entity, each investor would pay taxes on his share of the firm's income. "The most impor­tant other desirable changes are the elimination of percentage depletion on oil and other raw ma­terials, the elimination of tax exemption of interest on state and local securities, the eli­mination of special treatment of capital gains, the coordination of income, estate, and gift taxes, and the elimination of numerous deductions now allowed." I would add that ideally, in a tax sys­tem that would be geared solely to revenue and that would try to be neutral as among the things that individuals choose to do or to support, the exemption of non‑profit organizations should be removed.  A drawback in doing this today, though, would be that the state would almost certainly undertake the direct funding of many of the acti­vities that are now performed by non‑profit groups. If they were given a choice only between tax exempt groups and direct government funding, most classical liberals would almost certainly prefer the exemption.

Although I have stressed the income tax, major questions of social philosophy also surround estate, gift and inheritance taxation. Leveling philosophies welcome this chance to wipe out, if they can, any wealth that is above the average. Classical liberalism, however, isn't a leveling philosophy. It sees a person's earnings and wealth as a concomitant of his freedom. To de­prive him of the product of his life's effort and of the provision that he has planned for his loved ones and for his favored charities is to cut deep­ly into his personal choice and, too, into his motive‑power. In its economic aspect, this dis­courages the accumulation of capital, which is a sine qua non of productivity.

But again we are in an area that requires balancing. As against the considerations I have just mentioned, the classical liberal must weigh certain concerns about the structural health of a free society. During its long fight against aris­tocracy, classical liberalism opposed rigidities of social caste. It needs to be concerned that castes not redevelop and move the society away from a "free floating" system of mobile individuals.   For this reason, many classical liberals have favored a graduated inheritance tax to discourage the passage of massive bequests to any one reci­pient. The advantage of an inheritance tax is that by taxing the recipient on the amount he re­ceives it can directly relate to the size of the fortune passed to that individual. An estate tax, by taxing the total accumulation a decedent leaves, doesn't concern itself with how the estate is divided.

John Stuart Mill concluded that "inheritances and legacies, exceeding a certain amount, are highly proper subjects for taxation." Lord Robbins agreed: "The fact that human beings die and that the transmission of their property at death necessarily involves very complicated legal arrangements, offers an opportunity for producing modifica­tions of ownership which need not blunt unduly either the incentive to work or to save, but which, by a gentle and continuous process, may produce a desirable redistribution. The great social philo­sophers of the nineteenth century, who worked out   the rationale of a free enterprise system based on private property and the market, themselves conceived this possibility and laid some emphasis upon it.   A tax upon inheritance, graduated according to the size of the legacy, would involve a strong incentive to the diffusion of property; the more the testator divided his estate, the less total tax it would have to bear. Such an arrangement seems to me to have much to recommend it. Far from destroying the institution of property, it tends to sustain it by causing property to be more widely dif­fused."

This view has been opposed, however, by Nathaniel Branden.  He stresses the aspect, which I mentioned above and with which classical liber­als generally agree, that the accumulated property is a consequence of the owner's freedom.  [Note in 2003: Henry George, however, was a classical liberal who saw things very differently.  To him, the appreciation in land values arising from increasing population was not the product of the effort of the land’s owner, and was therefore a fit subject to be taken by taxation for general community benefit.  I have seen reason to expand on this in my book The Emerging Crisis of Economic Displacement.]  But beyond that, he argues that in a freely competitive society there is no structural tendency to revert to hardened social castes. Consistently with his perspective on other things, he sees such a ten­dency, if it occurs, to be a result of governmental intervention. "When people denounce inherited wealth, it is the right of the producer that they, in fact, are attacking . . . If the heir is not worthy of his money, the only person threatened by it is himself . . . If an heir who lacks ability acquires a fortune and a great industrial establishment from his successful father, he will not be able to maintain it for long, he will not be equal to the competition . . . It is a mixed economy ‑‑ such as the semi‑socialist or semi­fascist variety we have today ‑‑ that protects the non‑productive rich . . . ."

I would agree with Branden's view as against Robbins' if I didn't think that Branden has over­looked a major dimension. He is right, in my opinion, in everything that I just quoted from him. But philosophers who are concerned about the structural health of a free society will be wise not simply to write off a tendency away from free­dom as being nothing more than a product of inter­ventionism.  I don't believe that we are sufficient­ly protective of the structural preconditions that are needed for a free society if we limit our con­cerns only to the pure model. We also need to take into account the dynamic factors that cause a society to move away from that model. History has shown us enough that we should know that vast wealth isn't always ready to identify with a sys­tem that will allow challenges to its supremacy. Such wealth can often produce aristocratic attitudes

and a perspective that considers it natural to enjoy governmental prerogatives. Vast wealth produces tendencies away from a fluid freedom. We can say, with Branden, that "that's just an alien tendency that we will have to fight"; but the most effective way to fight it seems to be to eliminate vast wealth, hereditarily passed on, from a free society's spectrum. In doing so, we also disarm one of the more important substantive com­plaints that egalitarians have against capitalism, and this helps reduce the thrust toward socialism.

The graduated inheritance tax that Robbins favors would not, in my opinion, have to curtail the unfettered passing on of estates of even moderately large size. It doesn't need to bring everyone down to middle class size. We need not be concerned about an inheritance even of a million dollars. In fact, a large number of people having such effectively high wealth will help diversify the society. The structural problems arise, it seems to me, with inheritances of tens and hundreds of millions of dollars.

• Eminent domain. Some classical liberal thinkers, especially of the nightwatchman school, have questioned the power of eminent domain. They consider it incompatible with the sanctity of private property and necessarily arbitrary in the way it is administered. Wilhelm von Humboldt was one of these. He disagreed with the argument that a single property owner could stand in the way of a large project by refusing to sell, thereby making a power of eminent domain necessary. "Even though the mere whim and wholly groundless obstinacy of man may thwart an excellent undertaking, this is not sufficient to justify the interposition of the full power of the State. In the physical world, the State does not blow up every rock that lies in the wayfarer's path. Obstacles stimulate energy and sharpen wits."

Again, I find myself at odds with so restrictive a view. And again it is a question of what is the most functional framework. If instead of starting with a fixed view of private property we start by asking what is useful to make the sys­tem of private property work most effectively to maximize the options for acting men, we see that eminent domain is valuable both for the acqui­sition of government land and as a way to make possible a good many land uses that would not otherwise be available. If Humboldt's man of whim and obstinacy can stand in the way of every high­way, airport runway, park or countless other uses that require extensive  blocks of contiguous land, this hardly seems to be the form of legal structure for private property that is most consistent with the multifaceted and productive image that is held by classical liberal­ism. We need not define private property in a way that makes each owner an absolute and permanent master over his property. Such a definition isn't the most useful if we want to make private property a fully satisfactory means for fulfilling the wide range of human needs. We certainly don't want to join in the Fabian tech­nique of moving away from private property by gradually stripping it of many of its incidents; but there is a vast difference between a Fabian attack on private property and a classical liberal effort to create a legal framework that will cause the system of private property to work best. In a free society, the power of eminent domain in­volves a payment of just compensation and either a legislative or judicial determination that, every­thing considered, the taking is justified. This is a power that looks to the efficacy of the entire system rather than of a single sacrosanct parcel.

. Zoning. Until the 1920s, land use was "controlled" in the United States by a combination of "supply and demand" and the legal principles governing protective covenants in deeds and the law of “nuisance.” Almost every American city has adopted zoning as the main form of land use con­trol, however, during the past half century. In Land Use Without Zoning, Bernard Siegan has argued against zoning on classical liberal grounds. He says that the market is its own efficient regulator of land use. The oft‑quoted fear that heavy indus­try will want to locate in a residential neighbor­hood overlooks, he says, the reality that in­dustry needs to be near railroad spurs and wants to avoid public relations problems. He points out that specific problems of land use, such as the unpleasing effect of gaudy signs, can be addressed by ordinances that deal with them directly, such as sign ordinances.²⁷

Siegan is offering a characteristic classical liberal "market critique" of a governmental program.  For the most part, I agree with him, since I con­sider the zoning process far too political to be an appropriate instrument for a system of private property. A city's "master plan" is unavoidably subject to constant amendment by rulings on re­quested rezoning, and the process that ensues will never be able to avoid arbitrariness and political favoritism.

If I have any hesitation about Siegan's cri­tique, it is because I do not automatically assume, as many classical liberals seem to, that the frame­work for the market is per se ample. As I see it, the legal framework apart from zoning is far from adequate. The law of nuisance has per­mitted one landowner to obtain legal relief against another if that other's use of his own land were such as to constitute an "unreasonable interference" with the plaintiff's land. Much of the need that is perceived for zoning would be taken care of if this test were broadened to cover "incompatible" as well as "unreasonable" uses. With this broader test, the courts could determine whether a new use is compatible with a pre‑existing one, in case there is a dispute, in light of the facts of each case. An owner would receive the protection he needs, but there would be flexibility because the court's determination would be based on the conditions that would exist at the time of suit.

Protective covenants also haven't been used to best advantage. Because of the way they have been drawn, many covenants are virtually impossible for a neigh­borhood to change, since unanimous consent is required. Or else the covenants expire, leaving no covenants at all. Their purpose would be ac­complished much better if a procedure were provid­ed, either by the covenants themselves or by a general statute, for a continuing process of demo­cratic amendment by the landowners themselves. Such a procedure exists in the typical condominium complex, where the bylaws of the owners’ associa­tion can be amended by vote.

Land use patterns can be improved in other ways, too, that are consistent with the Rule of Law and with a free market. It has been suggested, for example, that a good deal could be done to eliminate urban blight by a simple change in the way the ad valorem tax is levied.  If the tax were based entirely on the value of the land without considering the value of improvements, undeveloped or poorly developed land would incur the same tax as well‑developed land. Approaches such as this deserve study from a classical liberal point of view.²⁸

                   3.  Functions addressed to needs that cannot be satisfied by the market.   If the market can do something, the classical liberal's hierarchy of values would much prefer that the market do it.  This is true even with the provision of the "preconditions" that I have been discussing. But there are a number of things that the market cannot do. Where they have amounted to preconditions for various aspects of a free society, I have favored having the state do them. Beyond the "preconditions,"  though, there is a vast realm of undertakings that the market cannot perform and that are in varying degrees beneficial.

One reason the market cannot satisfy them may be that they involve the "neighborhood effects" that have been discussed by Milton Friedman and that I talked about in the preceding chapter. John Van Sickle has referred to these as "collec­tive services" and others have sometimes called them "indiscriminate benefits." The venture may have such diffuse and widespread effects that it just isn't feasible to charge (if the effects are beneficial) or to compensate (if they are detri­mental) the people who are affected.  Because of this, there is no good way to translate the effects into cash payments, which is something that would have to be done if the market were to handle it.  Friedman has mentioned city parks and streets as examples.

Another reason will be that some undertakings require vast organization or financial resources, which may be combined with little or no expecta­tion of return on the market such as will satisfy investors.  The space program and the effort to find a cure for cancer are examples of this category. Each offers the greatest long‑term advantages to humanity, with even a number of desirable "spin­offs" along the way (such as the recently discover­ed treatment for acne that came out of cancer research).  This does not mean that various aspects of both will not become amenable to market development eventually.

Still another reason will be that an under­taking may involve a natural monopoly. The choice will be whether to leave this in unregulated pri­vate hands, to regulate it, or to have it operated by the government itself. Friedman has argued that such large and remote scenic wonders as the Grand Canyon and Yellowstone National Park should be privately owned, since it would be feasible to charge each user for his enjoyment (which is some­thing that can't fully be done for, say, a city park). I think, though, that Friedman has made a mistake by judging such a thing only by his "neighborhood effects" criterion. He has overlooked the extent to which such natural wonders represent major natural monopolies.  We can strongly favor an overall system of private property without believing that every parcel of land, including those with enormous scenic advantages, should be privately owned. Open access to such natural monu­ments by the average person is an important part of the "commons" and is a meaningful enhancement of each person's alternatives. I am aware that the socialist will be quick to argue that the "natural monopoly" rationale should extend, too, to rich mineral deposits. A classical liberal will be reluctant to apply the rationale to them, however, since that would involve nationalizing (or other­wise subjecting to governmental control) something that is central to the market system and that certainly responds to market price. The question is "what will enhance the overall system of volun­tarism?" Without indulging in a number of social­ist conceptions (such as a general faith in government), it wouldn't appear that government ownership of the principal mineral deposits would do this.

A fourth reason the market can't handle some things is simply that many undertakings are of such a nature that they don't attract a suffi­cient public to make them profitable. In the intellectual, artistic, cultural and aesthetic areas many of these will be immensely worthwhile. It is unfortunate but true that at our stage of hu­man development even the finest things of intel­lect and sensibility don't prove the most appeal­ing to the great majority of people.  For there to be a high level of expression in these areas, there will have to be either patronage from voluntary subscription or support from government. It is safe to say that most classical liberals would strongly object to any governmental role in this sort of thing, and would argue that "if the undertaking can't convince enough people of its merit to make it pay, then its merit should be questioned."  From my own point of view, I agree that a market test would be very worthwhile for a lot of what passes for art and intellect in the twentieth century. There has been a systematic dis­tortion of literary and aesthetic sensibilities as a result of the alienation of the intellectual, and this has produced a widespread nihilism that works hard to deviate, in endless ways, from any­thing that it perceives as a "bourgeois" norm.  But although this is a good reason for us to reject much of that art, it is also a potent reason why it is imperative for a free society to establish a sufficient niche for the artist and intellectual. In terms of a free society's own in­terests, no more important purpose could be served than to remove at least one of the root causes of the intellectuals' chronic discontent. The free society has to be made a fulfilling haven for the artist and intellectual. This is so vital, in fact, that I would include it within my list of the necessary preconditions of a free society.  A failure here is, in the long run, devastating to classical liberalism and its prospects. I should also point out that there is an egalitarian moral relativism inherent within the argument that "the market should decide merit," and that there is much in classical liberalism that would run counter to such an approach. It is true that classical li­beralism opposes hardened elites, but it is not thoroughly egalitarian and it does value quality.  I expressed the view earlier that classical liber­alism would make no claims of metaphysical justifi­cation and would seek, through the primary means of a voluntaristic social order, a broad human consensus that would be possible precisely because it would permit diversity.  But this doesn't mean that such a voluntaristic nexus can be achieved without a great many value choices being made. This was apparent, for example, in my discussion of the ethical dimension of a free society. Nor do I feel that the libertarian nexus would be shattered by at least a moderate amount of value-oriented deviation in support of intellect and the arts. The failure to stay entirely neutral would be offset by the beneficial effect on the long-term viability of a free society.  The improved richness of the culture that would ensue would also help make it more appealing in the long run, and this would encourage rather than impede the con­sensus we are seeking.

Looking back over the four reasons I have cited for why the market can't handle everything, it is easy to understand why those who hold to the nightwatchman school will oppose governmental involvement in such areas (and especially in the last one). There is little to suggest principled limits; the government activity is such as to have an enormous potential for growth, with all of its attendant "spend‑and‑elect" demagoguery and bureaucratic empire‑building; the private sector can be substantially drained by taxation and defi­cit financing to support such undertakings; and there is the significant libertarian consideration that the money that is spent on such projects is taken from individuals who would otherwise be free to spend it in pursuit of their own purposes. These are all important classical liberal desi­derata.

Although I want to take those factors into account in my own thinking, since I consider them valid concerns, the basic difference again arises between my method and that of the nightwatchman school. I would have us ask whether the classical liberals' free society is to be a thoroughly sa­tisfactory, well‑rounded vehicle for satisfying the great run of human wants. I feel that it has to be, both for its own merit and for its ultimate acceptability. It isn't wise to frame the parameters of a free society in ways that leave it exposed to chronic dissatisfactions and unex­pressed energies. Because of this, I think it is appropriate for a free people's political processes to decide how much state action is desirable in the areas I have been discussing.   I would, of course, have the public keep certain guiding considerations in mind: that governmental functions should never (except where survival de­mands it) be funded at a level that imposes heavy taxation (and taxation today is far too heavy); that each function should be performed by the most local level of government feasible (there is much to be said especially in favor of keeping any aid to the arts and to intellect politically decentralized); and that the first reliance should be placed on voluntary subscriptions, where they are appro­priate.

4.  Some suggestions that I consider ill-­advised. Although my own view of the appropriate functions of government is among the more expan­sive held by classical liberals, there are some functions suggested in classical liberal literature that go beyond what I consider sound. I am remind­ed particularly of John Stuart Mill's rationale in On Liberty and in his Principles of Political Economy.  Far too blank a check is issued by his statement that "the admitted functions of govern­ment embrace a much wider field than can easily be included within the ring‑fence of any restrictive definition, and . . . it is hardly possible to find any ground of justification common to them all, except the comprehensive one of general ex­pediency."   If his observation is interpreted in the context of overall classical liberal values, it isn't too far off; but he hasn't actually said that.  We are well aware of what Marxist‑Leninist, German Volkish, democratic socialist or even wel­fare statist thought can do under the rubric of general expediency.

Elsewhere, Mill made the distinction between acts that are purely individual and acts that "affect the interests of others."  But this is a spurious distinction, especially when we see that he classified the entire (huge) generic category of "trade" within the latter and, by a single stroke, made it subject to general regulation. There is almost nothing in life that doesn't in one way or another affect other people; so, although the distinction is a facile one that almost naturally suggests itself, it is hardly helpful. Taking "trade" just by itself, we should notice that classical liberals cannot blanket it under a right of regulation. They will want to insist that any regulation be justified by the criteria we have considered in the preceding sections, just as with any other governmental function.

In The Wealth of Nations, Adam Smith support­ed usury laws on the ground that "if the legal rate of interest in Great Britain was fixed so high as eight or ten percent, the greater part of the money which was to be lent, would be lent to prodigals and projectors." This would be hard to accept if its rationale were to protect the prodigals from their own lack of prudence, since it isn't consistent with self‑reliant indivi­dualism to inter­fere with the freedom of contract. Smith based his argument, though, on an economic rationale, which was that extensive lending to prodigals would distort the allocation of scarce capital by directing it away from serious undertakings.  It is doubtful whether this would be considered a valid economic perception in light of the thinking that has occurred since then. The loans that lenders make would bear an interest rate that would re­flect the lenders' assessment of the risk and of the prospects of repayment. They aren't likely to entrust the funds indiscriminately to prodigals.

5.  Functions that government shouldn't perform.  There are, of course, many things that classical liberals don't want government to do. They don't want it to do anything, in fact, that cannot be justified by considerations similar to those we have reviewed in this chapter. Although it was inconsistent with his argument against usury laws, Adam Smith opposed governmental intervention into the direction of investment. "The statesman, who should attempt to direct private people in what manner they ought to employ their capitals, would not only load himself with a most unnecessary at­tention, but assume an authority which . . . would nowhere be so dangerous as in the hands of a man who had folly and presumption enough to fancy him­self fit to exercise it." We remember that Albert Dicey opposed the Ten Hours Act of 1847 because it "has tended toward socialism, and contains within it the germs of an unlimited revolution . . . It recognized the principle that the regulation of public labor is the concern of the state and laid the basis for a whole system of government inspec­tion and control." Richard Cobden asserted classical liberal values when he argued that "government should not be allowed to manufacture for itself any article which could be obtained from private producers in a competitive market."  These are but a few examples among count­less governmental undertakings classical liberals have opposed.

 

Structural Aspects

The separation of church and state. Most written history is a running chronicle of divisions and bitter factionalism within mankind. There has been little tolerance for or compassion toward differ­ing peoples or opinions. The Romans, for example, persecuted the Christians until the Christians finally gained power and began their own persecution of heretics and pagans. The Crusades were merciless "holy wars" between major religions. We are told the story, too, of Torquemada's infamous cruelties during the Spanish Inqui­sition and of the endless Religious Wars that decimated Europe. The twentieth century has seen the anti‑Semitic bloodbath under Hitler [Note in 2003: this is acknowledged even by virtually all of the scholars who question the extent of the “Holocaust” and whether there was a systematic plan to exterminate the Jews] and the killing of tens of millions of people in the ideologically-motivated purges under Communism in the Soviet Union, China, Cam­bodia and elsewhere. The news has been full of reports of bloody fighting between Protestants and Catholics in Ire­land, blacks and whites in Rhodesia, Christians and Moslems in Lebanon, and Jews and Arabs on the borders of Israel.

I recall the powerful National Socialist pro­paganda film "The Triumph of the Will." For two hours it tells the story of the Nazi party con­gress at Nuremberg in 1934. The movie's effect is overwhelming in its pageantry, collective elan and anger, sense of movement, and even pathos. It presents National Socialism, in effect, as a reli­gion, with an iron dedication of will. It glorifies the irresistible power of the collective and an implacable hostility to anyone who differs, and we see in this the very opposite of liberal values.  I doubt that I will easily forget the stern image of Adolf Hitler shaking the hands of his elite soldiers and the ceremony in which the flags were low­ered to the  around in memory of the men who had died in the different battles of World War I.  It is an image that stands in thorough contrast to a society in which each man lives his life as he pleases, going his own way within a world of com­merce, and enjoys peaceful hours with his family at the ballpark or on a picnic.

This liberal perspective is a remarkable ex­ception, really, to the seeming glories of a Caesar, a Napoleon, a Hitler or a Mao. The Enlight­enment finally valued men for their own sakes, which is something that is worlds apart from the life‑is‑nothing treatment that was given to the "zeks" who passed facelessly through the Gulag Archipelago as Solzhenitsyn has described it. The spirit of the Enlightenment held that men's lives are entitled to respect even if those men hold other opinions, belong to different religions, are citizens of other countries or are members of another race. This was an amazing transformation from the way people have usually seen each other.

Along with tolerance, compassion and a height­ened sense of the value of individual human lives, the liberal perspective also involves a deliberate forsaking of power. The State is intentionally to be separate from the Church, so that the power of each won't be augmented by the power of the other and so that the vital corpus of mankind can enjoy its own "free exercise" (to use an American Consti­tutional phrase) of religion. Although we are ac­customed to hearing about the "separation of church and state," with its obvious implications with regard to religion as an established institution, we need to appreciate that the classical liberal vision actually contemplated something far more radical. What is envisioned included, just as much, a divorce of the state even from secular re­ligion. To the classical liberal, the state is to be the framework, and only the framework, for the teeming process of voluntary energies. It is not a vehicle for social change and for the remak­ing of mankind according to anyone's notions.  From the classical liberal point of view, it is just as much a violation of the "separation of church and state" for the state to become the instrument of, for example, the modern liberal ideology in restructuring the relationships between the sexes and in enforcing an on‑going egalitarian­ism as it is for the state to proclaim the exis­tence of an official state church.  In its overall purpose, classical liberalism favors a framework, including the state, that is essentially neutral.  It wants to let people live their own lives. It isn't really paradoxical that this neutrality doesn't result in a value‑free nihilism, since a moment's reflection makes it clear that a wide assortment of values have to be affirmed as part of maintaining a voluntaristic nexus. There is a profound identification, for example, with so-called "bourgeois" culture and with institutions such as the American constitutional system.  "Neutrality" doesn't mean that the state isn't identified with a free society. A few pages ago, I even expressed the opinion that a certain amount of non‑neutrality in support of the arts and intellect would be very beneficial precisely to a free society.  In so saying, I was willing to depart from a total neutrality and opt for a predominant one instead.

This value‑neutrality that is implicit in freedom is seen as a serious drawback by virtually all philosophies except classical liberalism. The neutrality denies that the state should be avail­able as a vehicle for advancing what is "true." To the Marxist dialectician, the German Volkish thinker, the modern liberal, his own perception isn't just one view among many.  It isn't just someone's "notion for remaking mankind."  Rather, it is truth itself. It is embodied reality, directly perceived, which only the foolish can question. This is ac­tually the case with any viewpoint that becomes generally accepted within a group at a given time. Under such mutually reinforcing cir­cumstances, it seems to the people involved that anyone who denies them the right to carry out the truth as they know it is ridiculously perverse and must be somewhat stupid and spiritually empty. And so far as competing social systems are concern­ed, it seems to them that one that would deliber­ately choose to be value‑neutral and that doesn't have an on‑going drive under some banner is neces­sarily insipid.

What such philosophies and what even many classical liberals overlook is that a society that consists of millions of independent individuals living under a limited government must not stop with neutrality. The voluntaristic plateau is neutral in that it blocks coercive means, but the free life that it makes possible is by no means value‑neutral, and should lead on to the fullest expression of human energies. It should go far beyond what is normally thought of as mundane "bourgeois" life. This poses, in fact, one of the great problematical aspects of a free society, which is whether people who are free and peaceable and who live outside of the enflaming cauldron of a Nuremberg rally can ever exemplify the highest and most moving traits that are possible for man­kind.  Even under favorable circumstances there is no assurance that they will. Even a free society that is somehow untouched by spoiledness and an average mediocrity will seem pallid to someone who yearns, Napoleon‑like, for "destiny" unless he be­gins to "see through" the existential emptiness of his quest for anger and glory.  He will have to dis­cover that a truer meaning of life comes from vi­tality and creativity in a peaceful setting, such as we see in the bright eyes of a happy child or in the simple eagerness of an elderly widow, such as my grandmother, to exhibit her pastels in a local art show. Somehow he will need to come to celebrate in the simpler things the religious significance of our existence.

There is a dimension that a free society needs to add. A purely internal, unarticulated celebra­tion of life often isn't enough. I believe that people definitely need a cultural milieu in which life itself is consciously and collectively cele­brated. What we need is a modern secular religion ‑‑ but one that is committed to the humane, tol­erant values of a free society. It is a tragedy for mankind that the efforts for a secular religion have been so misguided and ill‑fated. (Robespierre's "Republic of Virtue" and Hitler's "Thousand Year Reich" come to mind.) The failure of these efforts shouldn't blind us to the unfulfilled spiritual needs that still exist. And yet, I am almost as suspicious as the Burkean is of whole systems that are thought up and then foisted onto a people by a "constructive rationalism." It would be much better for a secular religion to be a slow growth, so that it would go deep and reflect the underly­ing ontology of life and of modern society. I would want it to include a celebration of the value and diversity of human life, and to be based on a far‑reaching philosophy of freedom rather than on coercion.  It could be the spiritual form for a gradually ameliorated mankind. If such a thing were to develop, it would be imperative that it carry within it a sizeable majority of the intel­lectuals ‑‑ so that they would be in a position to offer an unalienated but perceptive and elevating criticism of the main body of the society. Such a secular religion, with the intellectual as its clerisy, would add an elevating principle that would, in effect, transform a "bourgeois" society into a higher expression of freedom. There is no greater need in our civilization than to solve the problem of the alienation of the intellectual and both to elevate average life and to create an appropriate relationship of the intellectual with the main society.

Although the comments I have just made go beyond what I can cite from other classical liberals, it is accurate to say that the fundamental attitudes of the Enlightenment are closely identified with classical liberalism. Adam Smith's tolerant turn of mind was evident in his statement that "the good temper and moderation of contending factions seems to be the most essential circumstance in the public morality of a free people." We see his support for the separation of church and state in his observation that "articles of faith, as well as all other spiritual matters . . ., are not within the proper department of a temporal sov­ereign." Thomas Jefferson’s role in support of religious freedom is well known, and we recognize that there is a vast gulf between his views and the intolerance of other times when we recall his comment that "it does me no injury for my neighbor to say there are twenty gods, or no God." Cobden related this tolerance to very prac­tical issues: "No one can be a consistent enemy of monopoly, who does not tolerate an honest dif­ference of opinion on every question." And Grif­fin sees Macaulay's tolerant convictions as having stemmed from John Milton's worldview: "We can begin to understand the heated manner of Macaulay's famous essay 'Milton' only after we have investi­gated the intellectual relationship of the pair. Both were enthusiasts of liberty. Macaulay ad­dressed the poet as 'the great martyr of English liberty,' and followed his political thought with only the slightest qualifications. Macaulay sup­ported Catholic Emancipation, abolition of slavery, and the removal of Jewish disabilities."²⁹  

My overall point is brought out sharply in a discussion by Frank Knight: "Communism, in its social program and pretensions, is largely a revi­val of historical ecclesiastical Christianity, with the church more effectively merged in one all‑powerful state.  From the down-fall of the Ro­man imperium to the age of liberalism, Europe lived under one or more dogmatic, intolerant, persecuting, and violently proselyting religions ‑‑ claiming possession of the formula for salvation, they could not be or do otherwise ‑‑ and much of the time in a state of war between two or more such religions . . . The plea of communism, like that of Christianity, is justice, under absolute au­thority, ignoring freedom . . . For liberalism, the primary value is freedom, self‑limited by laws made by the community."

Constitutionalism.  In the preceding chapter, we recalled that one of the purposes the Rule of Law serves for classical liberalism is to define and restrain the power of government. Since the classical liberal seeks to apply the Rule of Law directly to the state itself, a written constitu­tion acts as a higher law, which is intended to be binding and to govern the state. It grants power, but it also delimits it and restricts the scope of the state's jurisdiction. As he traced the history of the Rule of Law, Hayek referred to a written constitution as an American contribution.

The American Constitution has historically be supercharged with a "meaning" that has been vitally important in the United States to classical liberalism. But before I can discuss that meaning, I will need to explain what it is that I have in mind by "a meaning" and what some of the difficulties are that surround the subject. In ascribing a meaning to an event or an institution, it is easy to gloss over the diversity that was present within a period of history and to lose sight of the lack of thorough‑going consensus that in fact existed. One of the main points I stressed in the opening chapters of Understanding the Modern Predicament was that modern Western civilization has never been settled on the vast issues of values and interpretation that are inherent in social and political philosophy. The lack of fundamental consensus means that people will almost necessarily differ in their attribution of meaning to historic events and social processes. One of the great on­going issues for a people and for an intellectual community, which will unavoidably be addressed either consciously or unconsciously or perhaps by a mixture of both, has to do with what system of interpretation is to be used in assigning meaning to a human flow that in itself is a disparate mul­titude of tendencies. This is only partly a matter of descriptive understanding; it is also a matter of values. Part of the conflict among philosophies involves a struggle over a creative intellectual, spiritual function; it has to do with what mythos is to be used to attribute something of a metaphysical essence to processes that would look like mere combinations of meaningless facts if they were viewed from a purely positivist point of view. In almost everything in life we assign spiritual identity to things, ascribing a meaning to them that they don't carry independently. The past is more to us than dust; the future is more than just the fact of approaching time; and these together, in the meaning we ascribe to them, frame our present. The state and nation are more than just all of the office‑holders and employees and citizens; we make spiritual corporations of them. When a parent first sees a newborn child, an affinity developes that is far beyond what that adult has usually felt for children in general. This affinity is magnetized by the meaning the parent attributes to his or her own child.

It is easy, but also foolish, to deny the use­fulness of such spiritual attributions and to oppose them as inconsistent with reality. Such a position, strictly adhered to, would be nihilist in its effect on a great deal that is valuable in human life. It would also be ill‑advised on methodological grounds, since there is no reason that mankind must embrace an epistemological position that ignores the rela­tivity of an observer to the object and the role spiritual attribution plays in certain dimen­sions of human life as a necessary part of the life process. A purely empirical method is highly use­ful in its own dimension and has been one of the secrets behind the immensely fruitful methodology of the physical sciences. But there are other dimensions, too, as is readily apparent in, for example, poetry, art and literature. The question for social and political thought is what interplay of specific reality with imputed meaning is more serviceable to understanding, as part of the media­tion of reality, and to the values we consi­der important.  This question is answerable in as many ways as there are political philosophies. The answer is a significant part, in fact, of what is at issue among them.

All of this is relevant to our understanding of the American Constitution. Justice Oliver Wen­dell Holmes, Jr., penned one of the most frequent­ly quoted statements in American jurisprudence when he wrote that "the Fourteenth Amendment was not intended to embody Herbert Spencer's Social Statics." Although the statement contains specific references to Spencer and to the Fourteenth Amend­ment, its significance lies in its general denial that the Constitution is fundamentally a classical liberal document. This denial would by itself have been enough to make Holmes the patron saint of modern liberal legal ideology, which above all else was concerned about providing a rationale for removing the Constitutional restraints that clas­sical liberalism had earlier placed on social legislation. Modern liberal legal philosophy often asserts, in keeping with Holmes, that the Consti­tution reflects no "economic" philosophy whatso­ever. Imputing a metaphysic of "realism," they argue that "the Constitution is what the judges say it is." It thereby becomes similar to the British constitution, which is unwritten and which in its mutability has reference more to "how things are constituted" than to an established set of cir­cumscribing principles. The stress on "flexibility" has met an essential tactical need for modern liberalism, especially in the first half of the twentieth century, since it has been quite unlike­ly that the American public would adopt Constitu­tional amendments through the formal amendment process to put into effect the vast Constitutional changes that modern liberals have sought (and obtained) in such areas as substantive due process and the interstate commerce clause. Once modern liberals established their hegemony over American thought and legal change, some of them were able to abandon "judicial passivism" and to go on to assert an egalitarian philosophical content for the Constitution. This is the explanation, in fact, for the activist majority of the Supreme Court during the Warren years. This egalitarian moralism clash­ed with Holmes' earlier denial of philosophical essence and of an active role for the Court, al­though Holmes' stance was still represented on the Warren Court by Justice Frankfurter and his group, since they apparently couldn't easily abandon the positions of a lifetime. Both the Holmes and the Warren positions may best be understood in their relationship to the overall modern liberal situa­tion, since each represented a tactical phase in a social philosophy that was mainly concerned with how to attain certain social objectives.

The question for classical liberals is whether they should accept the notion, asserted by Holmes and praised effusively throughout our century, that the Constitution was not and is not a classical liberal document. I would answer this in the negative. They can accept it only if they are willing to abdicate with regard to a mythos that has been of major importance to classical liberalism (and hence to humanity, if we assume that classical liberalism defines its best aspirations) and that was certainly as valid as any spiritual attribution ever is. The American Constitution has served several classical liberal purposes: By the very fact of having been in written form, it augmented the impression that it constituted immutable principle, and this increas­ed its chances for continuing to delimit the power of the state; instead of being a "living Constitu­tion" that would "change with the times," it would hold people fast to a permanent set of values centered on freedom. More than ever this was true when the Constitution was seen through the eyes of Jeffersonian "strict construction," which applied the doctrine of enumerated powers. The Bill of Rights specifically prohibited a number of govern­mental acts, and the Due Process clauses and the Ninth Amendment stressed the existence of a reser­voir of other unwritten liberties. The separation of powers among the three branches of the govern­ment deliberately fragmented power to restrain the holder of any one part of it. And the division of powers between the national government and the states worked against centralization, favoring the greatest possible local control. The Constitution has never been perfect from a classical liberal point of view, but by serving these major purposes it was overwhelmingly classical liberal in its content and inspiration. A classical liberal society will have ample reason to repudiate Holmes’ negation. It would reaffirm the attribution of a classical liberal essence to the Constitution. The fact that our society hasn't done this is not an indication of the truth of Holmes' denial, but is instead an abdication of will. This abdication was the result of the drain of intellectual resources away from classical liberalism that had occurred by the beginning of the twentieth century.

               Separation of powers. A truism of the Jeffersonian philosophy was, according to Jefferson him­self, that "the concentration of (the legislative, executive and judicial powers) in the same hands is precisely the definition of despotic govern­ment." He wanted a situation "in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one can transcend their legal limits without being ef­fectually checked and restrained by the others."  But, of course, this wasn't original with Jefferson.   It reflected Locke and Montesquieu, and its roots went back to Greek and Roman experience.

The United States Supreme Court asserted the doctrine of the separation of powers as a major Constitutional principle until the Court shifted to its "modern liberal" persuasion in the late 1930s. There has, since then, been considerable erosion of the principle, although our overall governmental structure is still based on it. To­day when we appear before bodies such as the National Labor Relations Board or a "civil rights commission," which mix legislative, judicial, and administrative functions and which have a member­ship that is often selected on ideological grounds, the unobjective, biased atmosphere gives us an unwholesome reminder of precisely what Jefferson was talking about when he said that such a combi­nation is the "very definition of despotic govern­ment." If we think that perhaps he overstated the point, we will be right in thinking so only to the degree to which such agencies are subject to check by the continuing presence of other restraints.

Division of powers.   Since he fears power, the classical liberal would like to decentralize as much as he can consistently with an efficient exercise of the state's legitimate func­tions. Luckily, the circumstances that surrounded the formation of the United States were ideal for this purpose (if we ignore, for purposes of dis­cussion, the existence of slavery, which served as an almost immediate "bone in the throat" of the federal system). There were thirteen separate former colonies. Each had strong local identifica­tions and was jealous of its own prerogatives. The local loyalties were so strong, in fact, that the problem at the time was to overcome the centri­fugal forces sufficiently to permit the creation of a viable national government. Indeed, until the North's victory in the Civil War there was a nagging question of whether the nation would even stay together. There were bitter sectional con­flicts, with nullification and secession movements first in the north and then in the south.

              The classical liberalism of the Jeffersonians consistently and  articulately opposed the expansion of federal power. Their position was most evident in the long debate over government spending on "internal improvements," which was one of the main political issues until the Civil War put an end to the Jeffersonian majority. Jefferson had given decentralization a high place among his values when he had said that "I am for preserving to the States the powers not yielded by them to the Union, and to the legislature of the Union its constitutional share in the division of powers, and I am not for transferring all the powers of the States to the General Government and all those of that government to the executive branch . . . (I am) not for a multiplication of officers and salar­ies merely to make partisans, and for increasing, by every device, the public debt on the principle of its being a public blessing." The continuity of these values was apparent half a century later when Samuel Tilden, a Jeffersonian, oppos­ed the centralization occurring under President Grant.³⁰   And classical liberal thought has, not surprisingly, continued this preference, as we see in Milton Friedman's recent statement that "government power must be dispersed. If government is to exercise power, better in the county than in the state, better in the state than in Washington."

Even though the circumstances for decentrali­zation were ideal at the beginning of the history of the United States, several tendencies have combined in the past two hundred years to bring about an on‑going centralization:

. Starting with Hamilton, there has al­ways been a school of thought politically that has favored what the Jeffersonians opposed as "con­solidation." The pressure from this side has had a cumulative effect. The Civil War submerged the Democratic Party, which had espoused Jeffersonian principles, and the "alienation of the intellec­tual" drained off much of the continuing articula­tion of classical liberal values; and these fac­tors left the field much more open than it other­wise would have been for the proponents of an active national government.

. The Civil War, according to the very plausible point emphasized by Frank Meyer, was a major turning point that established the primacy of the national government vis a vis the states. Since that war, it has been an unquestioned tenet in the national consciousness that the country is an entire entity and that the sovereignty of the states is limited and secondary compared to that of the national government.

. The past two hundred years have brought a progressive homogenization of American culture, and this has eroded the local identifications. Local differences still exist, of course, but in most ways we have a national culture and a national economic system. Our roots are broken and our provincialisms are curtailed still further by our being so remarkably transient and by our having ubiquitous communication and transportation. The result is that we tend less and less to think of the state in which we happen to be living as hav­ing any unique significance. It is just slightly more than another subdivision to us. Under such circumstances, we don't tend to feel any special loyalty to the officeholders and policies at the state capital.     . The complexity of modern life involves an interdependency that is far removed from what existed two hundred years ago. The proponents of greater centralization never tire of pointing this out; and, to an extent, they are right. The world has indeed shrunk. By travel‑time and the speed of communication, New York and Honolulu are closer to each other today than New York and Boston were at the time of the Revolution.  [Note in 2003: Consider the Internet today.]

              But as extensive as they are, even these don't exhaust the causes of the shift of power from the states to the national government. One of the major reasons has been the general debility of local politics during the past century. A number of years ago, Woodrow Wilson discussed this weakness at length in his book Constitutional Government in the United States. The local politics I have seen from my own experience has been a politics of bosses, interest groups and sycophants of mediocrity, pettiness and self‑aggrandizement. It contains little intellect, idealism, vision or public participation. And if you try to break through the existing pattern, you discover little appreciable support, since for the most part the public doesn't care.

As with everything else, this situation can be understood from differing points of view. The social critics from the Left who are alienated against the bourgeoisie will ascribe the debility to the general qualities of greed and intellectual vacuity they see in our society, and they will perceive these qualities as coinciding with a market economy and middle class values. But I see this as a destructive explanation that warps social reality by ascribing the bad to the good. Instead of seeing the enervation as something antagonistic to freedom that freedom must overcome, it points to it as an argument against freedom itself.

A century ago we got underway with the age of democracy and universal literacy. One result has been that the "mass man" or the average man has come to predominate. Several philosophers have speculated pessimistically about this sort of man's capacity to maintain ad­vanced civilization. The whole thing has been problematical, and for the most part the experience of Europe and America hasn't been what a democrat such as John Bright would have hoped. The average man, it seems, has a self‑contained vision and is insistent in his assertion of the majoritarian prerogatives of mediocrity. His lack of inner resources, under conditions that are so favorable to his flourishing, is a disappointment to everyone who counted on his participating intelligently and sensitively to make a democratic system work. I have spoken of this more than once, and about the cultural factors that existentially support the extroverted shallowness that is so characteristic of our time. I have also stressed  that the "alienation of the intellectual" has drained our civilization of the mental, moral and aesthetic leadership it needs. The debility of our local politics is a manifestation of this entire histori­cal predicament. The local political tone has borne a close relationship to our national politics. The Watergate scandal and hundreds, if not thousands, of less conspicuous scandals like it have reflected this same tone. But the national scene is somewhat different by virtue of the intellectual com­munity's having been able to bring its influence to bear at that level. In turn, the leftward leanings of that intellectual community have meant that its influence has worked in favor of increasing the power of the federal government for the social and economic purposes it envisions. The other side of this coin, as always, has been, too, the decline of classical liberal philosophy.

              At least until the late 1970s, the result of these many tendencies has been a long and cumula­tive shift of power to Washington. When we see how deeply rooted its causes are in our national life, in contemporary character and in long‑term intellectual, cultural and existential processes, we can appreciate how improbable it is that the movement will reverse itself in any lasting way. In the 1970s we have, however, seen modern liber­alism fragmented following the turmoil of the 1960s, and the ensuing vacuum has allowed the reemergence of the underlay of conservative or classical liberal attitudes, mainly in the form of an anti‑tax effort and a shift to the right in most politicians' rhetoric.  I am not one for social forecasting, since there are far too many variables, many of which are quite subliminal and intangible; but it is probably safe to say that any long‑term effects of the outward conservative trend of the late 1970s will depend mostly on where the intel­lectual community goes.  If the Left regroups, the vacuum will end, for whatever that portends; or if in the meantime there is something of a revi­talization of classical liberal intellectuality, a new element will have been added for the future. The point that I have made is that the time is in many ways ripe for a "new liberalism" that will restate the classical liberal philosophy amply and without doctrinaire defensiveness, abandoning the nightwatchman school's positions in favor of a more adequate concern for all classical liberal values. If out of the current vacuum there were even the initial kindling of such a flame, it might make a major difference ultimately in modern civilization, since it would offer a constructive way out of the "modern predicament" that I dis­cussed in my previous book.  [Note in 2003: Unfortunately, this hopefulness has been swept away by unfolding events.  By the time this note is written, the “conservative movement” in the United States, which has included the classical liberal position, is in a shambles.  The end of the Cold War was met by the rise of a type of American hubris that combines several elements:  a sense of uncontested national power, the world-meliorist interventionism of Woodrow Wilson based largely on the Social Gospel naivete that has been so important a factor in mainstream American culture, unmitigated support for free trade and a global market, and the advocacy of open borders that welcomes massive immigration from the Third World.  The atrocities of September 11 have given this assertion of “American primacy” a claim upon American patriotism that reinforces its claim to be the true form of “conservatism” today.  A few voices continue to speak out in favor of a much more supportable philosophy, but they are very much in the minority even among those who until a short time ago felt they had common ground as “conservatives.”  See my book Out of the Ashes.] 

Classical liberals have opposed the drift of power to Washington for so long that they have hardly given any thought to what the ap­propriate division of powers would actually be un­der present conditions. There are ways in which modern circumstances do indeed call for a new dis­tribution of powers, which would reflect the in­creased interdependence and closeness of the Ameri­can people. If the pressure from the Left were not present to put classical liberalism into a defen­sive posture to preserve the values that are in­herent in the status quo, it would be apparent that the roles of the federal government and the states need a fundamental rethinking. In fact, to gain real relevance to tomorrow's issues, classical liberals should consider such a rethinking an im­portant part of their agenda. So long, however, as classical liberal intellectuality is meager in quantity and relatively impotent politically, any such reconsideration will seem almost foolishly academic. The process that has been at work for several decades has shifted jurisdiction to the federal government without regard to classical liberal desiderata. The states are becoming in­strumentalities of federal policy rather than in­dependent sovereigns over functions most appropriately performed by them. What is needed is a return to sound principle, Constitutionally implemented. But we are far removed from that un­less there are those who will act energetically to fill the existing vacuum. Whether there will be people who will do that will itself be a substan­tial commentary on the relative strength and weak­ness of the social and ideological factors that I have been tracing.

The pervasive nexus: freedom of speech. The classical liberal supports free speech as a vital part of a free society. If men are to live their lives independently and according to their volun­tary choices, freedom of expression is for them both an end and a means. It would be impossible for them to be free agents, but for their minds to be less so. No overbearing authority should press down upon them, demanding conformity. This spirit, which is so at odds with that of the to­talitarian systems of the twentieth century and of the theocracies of the past, was expressed by Frank Knight when he wrote that "the first test of a free society is that it teach its youth to ques­tion and criticize and form opinions only by weighing evidence ‑‑ and to admit ignorance where

there is no evidence ‑‑ instead of implanting eternal and immutable truth, with abject submission to the inevitable authoritative interpreter, by some prescriptive right." We notice that Cobden welcomed conflicting opinions: "Nobody will sup­pose that I would deny to any one the right of publishing his views upon French or any other politics. So far am I from wishing to restrain the liberty of the press, it is my constant complaint that it is not free enough. The press, in my opinion, should be the only censor of the press."³¹   Thomas Macaulay was a contemporary of Cobden's, and argued that "men are never so likely to settle a question rightly, as when they discuss it freely. A government can interfere in discussion, only by making it less free than it would otherwise be." Cowling tells us about John Stuart Mill that "Mill, no less than Comte, looked forward to a period when there would, once more, be a spiritual consensus: but he wished the consensus to grow by rational persuasion and rational argument based on rational education, not by suppression, violence and force."³² Ludwig von Mises applied the prin­ciple to politics, and rebutted the notion that majority rule means rule by the vulgar, when he wrote that "(classical) liberals too believe that a nation should be ruled by those best fitted for this task. But they believe that a man's ability to rule proves itself better by convincing his fellow‑citizens than by using force upon them."

Classical liberalism's defensive posture dur­ing the past century and the drain of intellectual resources to the Left have deprived classical liberalism of an appearance of zeal on issues of free speech. This is an unfortunate loss of thrust since it enhances the mistaken image of classical liberalism as being an inherently non‑reformist point of view. But at least we can dig beneath appearances to see how historic contingencies have caused this shift in emphasis: It has been the Left that, as a philosophy seeking vast social change, has had a tactical need to champion various marginal forms of "free speech" as weapons of at­tention‑getting and attack; for their part, classi­cal liberals have seen good reason to limit these marginal forms by urging that a balance of values be respected; they have reminded others that the forms of speech are subject to appropriate accom­modation with the other major interests in a free society.

When, for example, the so‑called "free speech movement" at Berkeley in the 1960s asserted that it had a right militantly to parade obscenities, classical liberals were well within the true spirit of "freedom of speech" when they considered such a thing offensive to the civility essential to civilized life. They correctly understood that the obscenities weren't a form of speech nearly so much as they were a revolution­ary act in the form of what came to be known as "guerilla theater." A classical liberal should be quick to oppose any genuine attack on freedom of speech; but this isn't the same thing as being prepared to champion abuses that sound principle can't justify.

It is sometimes foolishly asserted that free­dom of speech is an absolute. But it never has been, and cannot be, recognized as such. We recall Holmes' illustration of the legitimacy of punish­ing the man who would shout "fire!" in a crowded theater. Nor do we permit use of a loudspeaker in a residential neighborhood in the middle of the night at a time when most people are trying to sleep. The sleepers, too, have rights. As with all rights, speech must be harmonized with competing interests in a way that will optimize the satisfaction of a wide variety of human pur­poses.

In a free society the concern must be that broad avenues of communication remain open for the timely expression of ideas to all who want to listen. This requires a continuing attentiveness to the freedom of speech. It doesn't in principle, though, preclude giving weight to other values, too.

Democracy and majority rule.  As I quote the opinions of classical liberals about democracy, we will see that some recurrent themes run through their discussion of it. For the most part, they see democracy as in itself desirable ‑‑ although they will be anxious to examine the circumstances of a given time and place to see whether it is compatible with the primary value, which is liber­ty. If he sees such a compatibility, the classi­cal liberal will often welcome the disinterested freshness of the average person as compared to the intrigues of a clique.

In varying degrees, though, classical liberals have doubted whether democracy would serve liberty. On the continent of Europe, 18th and 19th century classical liberals often preferred "enlightened despotism" to what they foresaw as the anarchy of the mob. In England, they were more receptive to majority rule, and in America more still ‑‑ but even in England and America there has been hesi­tation. The perspective that we now have after a century has passed since the advent of "univer­sal manhood suffrage" pretty well shows, I think, that the hesitation was justified (although I don't suggest that we have any realistic expecta­tion of ever going back to the original principle of "republican selection").  In every situation, classical liberals want the state delimited; and this applies even if the state is ruled by a majority. To them, the power of a majority isn't legitimately greater than the valid functions of government. Whatever the source of the power, it needs to be kept within the bounds of principle.

Classical liberals have pursued a comparatively straight course on the issue of democracy. They have perceived their philosophy as bene­ficial to people generally, and they have counted on support for that reason. The Left involves an historic alliance, on both ideological and political dimensions, of the intelligentsia and the have‑nots; and this alliance naturally lends it­self in one form or another to a democratic pro­gram and rhetoric. Classical liberalism, though, has refrained from any such pandering. Its lead­ers hardly seem to have been tempted in that di­rection. What "democracy" there is within classical liberalism ‑‑ and fundamentally, if the level of the society permits it, there is a lot of it -- is genuine democracy. The Left's democracy, by arising out of an alliance, has to be considered tenuous; it is tenuous even though the alliance may persist throughout an entire epoch and even though countless individual supporters of the Left are thoroughly sincere in their professions of democratic sympathy.

Not surprisingly, there is an abundance of discussion of democracy in classical liberal literature:

.  Thomas Jefferson.  “All, too, will bear in mind this sacred principle that, though the will of the majority is in all cases to prevail that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect and to violate which would be oppression.”

. Wilhelm Roepke.  “Democracy is, in the long run, compatible with freedom only on condition that all, or at least most, voters are agreed that certain supreme norms and principles of public life and economic order must remain outside the sphere of democratic decisions.  This unitas in necessariis encompasses more than the principle of the rule of law, which, though admittedly important, is ultimately only formal.  It is this fundamental agreement which imbues the concept of inviolable law as such with an absolute content, and once it can no longer be taken for granted, we are in the presence of mass democracy of a pre-totalitarian kind.”³³

. Richard Cobden.  “‘Do not let your zeal for the cause of democracy,’ Cobden wrote to Tait, the Edinburg bookseller, ‘deceive you as to the fact of the opague Ignorance in which the great bulk of the people of England are wrapt . . . There is no remedy for all this but improved education.’”  In 1842: “I shall take the first opportunity in the House of avowing myself for the suffrage of every man.”  But later: “I do not oppose the principle of giving men a control over their own affairs.  I must confess, however, that I am less sanguine than I used to be about the effects of a wide extension of the franchise.”

. Thomas Macaulay.  He supported  the Reform Bill in 1832 that gave the franchise to the middle class.  “He did not exclude the eventual participation of all male members of English society in the political process, but the prerequisite for this was education.”

• Lord Robbins.  "A full realization of li­berty, in terms of Professor Hayek's general con­ception of absence of coercive restraints, must therefore involve the liberty to vote. That this carries with it liberty to destroy other liberty is undeniable, and we may agree with J. S. Mill and Professor Hayek that, for this reason, popular government carries with it very grave dangers."

• Herbert Spencer.  "The great political superstition of the past was the divine right of kings. The great political superstition of the present is the divine right of parliaments . . . The divine right of parliaments means the divine right of majorities . . . The function of Liberal­ism in the past was that of putting a limit to the powers of kings. The function of true Liberalism in the future will be that of putting a limit to the powers of Parliaments."

• F. A. Hayek.  "Equality before the law leads to the demand that all men should also have the same share in making the law. This is the point where traditional liberalism and the democratic movement meet. Their main concerns are neverthe­less different. Liberalism . . . is concerned mainly with limiting the coercive powers of all government, whether democratic or not, whereas the dogmatic democrat knows only one limit to govern­ment ‑‑ current majority opinion . . . Liberalism is a doctrine about what the law ought to be, democracy a doctrine about the manner of determin­ing what will be the law."

Before I leave the subject of majority rule, I would have us notice that the concept is often only naively understood (as are many of the other principles that underlie our society).  It is analogous to the concept of "equality under the law" in having important conceptual ambiguities. There are at least six large issues that it con­tains, which I will mention but which I won't take time to explore: (a) When is an individual to be considered subject to the decisional power of a group's majority?  (b) What is the appropriate unit for making the decision; i.e., whose majority is to control? (c) Which issues are properly for the majority to decide, and which issues are not proper for it to consider? (d) What sort of majority is most appropriate? There are simple majorities, absolute majorities, two‑thirds and three‑fourths votes, or mere pluralities. (e) Who is to vote? (f) What is to be the manner of voting? The existence of these subtleties means that it may be seriously simple‑minded to assume that "majority rule" automatically applies to something. When a Right to Work referendum was on the ballot in Colorado in 1958, I heard a television debate about it in which an opponent of Right to Work stumped its proponents by raising what seemed to be an inviolable argument: that the principle of "majority rule" demanded that a ma­jority of the workers in a company ought to be able to decide whether all of the workers join a union. But this shouldn't have stumped the clas­sical liberal proponents of Right to Work for long, since what was precisely at issue in the debate was whether an individual's joining of a union was an appropriate matter for a majority to decide, as distinguished from being a matter of individual choice. Invoking "majority rule" simply begged the question. "Majority rule" didn't clearly apply, except to a naive view of it that ignored the issues I just cited regarding it.

 

NOTES

 

1.      John V. Van Sickle, Freedom in Jeopardy (Cleveland: World Publishing Company, 1969), p. 14.

2.      Ayn Rand, The Virtue of Selfishness (New York: Signet Books, 1961), p. 98.

3.      Milton Friedman, Capitalism and Freedom (Chicago: Phoenix Books, 1962), pp. 2, 86, 107, 121, 73, 174, 30, 31, 3.

4.   Harry Hayden Clark, Thomas Paine (Chicago: American Book Company, 1944), pp. 4, 211, 4, 6.

5.   John Morley, The Life of Richard Cobden (London: Chapmen and Hall, Ltd, 1881), Vol. I, pp. 127, 228; Vol. II, pp. 241, 30, 239, 444, 477, 37.

6.   Herbert Spencer, Social Statics and The Man Versus the State (New York: D. Appleton and Company, 1897), pp. 95, 151, 155, 183.

7. Lord Robbins, Politics and Economics (New York: St. Martin's Press, Inc., 1963), pp. 94, 41, 107, 108, 58, 43, 85.

8.   Henry Higgs, The Physiocrats (New York: Langland Press, 1952), p. 45.

9.   Thomas Babington Macaulay, Selected Writings (Chicago: University of Chicago Press, 1972), pp. 195, 214, 216, 62, xviii.

  10. Wilhelm von Humboldt, The Limits of State Action (Cambridge: Cambridge University Press, 1969), pp. 10, 127, 107, 92.

  11. John Locke, Two Treatises on Government (New York: Hafner Publishing Company, 1947), pp. 168, 184.

12.   Edward Dumbauld, ed., The Political Writings of Thomas Jefferson (New York: Liberal Arts Press, 1955), pp. 55, 65, 36, 103, 47, 42.

13.   Ayn Rand, Capitalism: The Unknown Ideal (New York: Signet Books, 1967), pp. 19, 47, 91, 54, 92, 93.

   14. Leonard E. Read, Anything That's Peaceful (Irvington‑on‑Hudson: Foundation for Economic Education, 1964), p. 8.

  15.  Leonard E. Read, Let Freedom Reign (Irvington-on‑Hudson: Foundation for Economic Education, 1969),    pp. 8, 63.

16.  Henry Hazlitt, The Conquest of Poverty (New Rochelle: Arlington House, 1973), pp. 188, 189.

  17. John Stuart Mill, Principles of Political Economy (Toronto: University of Toronto Press, 1965), Vol. I, p.  lvi; Vol. II, pp. 800‑804, 918, 808, 809, 815, 816, 811.

  18. Adam Smith, The Wealth of Nations (New York: Modern Library, 1937), pp. 508, 777, 339, 423, 729, 750.

  19. Joseph Hamburger, Intellectuals in Politics ‑­John Stuart Mill and the Philosophic Radicals (New Haven:   Yale University Press, 1965), p. 43.

 20.   Jacob Burckhardt, Force and Freedom (New York: Pantheon Books, Inc., 1943), p. 118.

   21.   Edwin A. Burtt, ed., The English Philosophers from Bacon to Mill (New York: Modern Library, 1939),    pp. 1026‑1027, 1008, 1024.

 22.  Thomas P. Neill, The Rise and Decline of Liberalism (Milwaukee: The Bruce Publishing Com­pany, 1953), pp. 182, 247.

   23. Ludwig von Mises, Human Action (New Haven: Yale University Press, 1949), pp. 363, 150.

   24. Frank H. Knight, On the History and Method of Economics (Chicago: Phoenix Books, 1963), pp. 270,       224, 225, 277, 274, 275.

   25. Henry C. Simons, Economic Policy for a Free Society (Chicago: University of Chicago Press, 1948), p.  52.

   26. W. H. Hutt, Politically Impossible...? (Westminster: Institute of Economic Affairs, 1971).

  27.   Bernard H. Siegan, Land Use Without Zoning     (Lexington: Lexington Books, 1972).

  28.   I am longer able to find the article in which this has been suggested.  I believe the article appeared in New Guard, the national maga­zine for Young Americans for Freedom.

   29.   John R. Griffin, The Intellectual Milieu of Lord Macaulay (Ottawa: University of Ottawa Press, 1965), p. 64.

  30.  Alexander Clarence Flick, Samuel Jones Tilden (Port Washington: Kennikat Press, 1939), p. 245.

  31.  Richard Cobden, The Political Writings of Richard Cobden (London: Cassell & Company, Ltd., 1886), p. 338.

32.   Maurice Cowling, Mill and Liberalism (Cambridge: Cambridge at the University Press, 1963), p. 23.

  33. Wilhelm Roepke, A Humane Economy (Chicago: Henry Regnery Company, 1960), p. 69.