In “Profiles in Diversity,” (Summer 2005), Victor Davis Hanson writes, “Upon arriving in the Bay Area, [new Chancellor of the University of California, Berkeley, Robert J. Birgeneau] quickly vowed to solve the problems he had found. Surprisingly, these had nothing to do with a decline in academic standards, deterioration in the quality of Berkeley’s key departments, or a state funding crisis.” Surprisingly? How acute are these problems at Berkeley? As the father of a Berkeley junior, I would like to know. Regarding standards and key departments, I confess I was reassured last year when the Times Higher Education Supplement did its first-ever worldwide ranking of research universities and placed Berkeley second, after Harvard, and ahead of third- and fourth-place finishers M.I.T. and Caltech. But Mr. Hanson may know something that the T.H.E.S. team does not. I would be happy if he shared it with us (and them).

Regarding state funding, Mr. Hanson provides no more evidence of a crisis than he does of a decline in academic standards, but, again, perhaps he could provide some if asked. Does he believe, meanwhile, that Chancellor Birgeneau is deceived or that he is deceptive in the July letter his office sent to Berkeley parents and alumni, which opens: “Governor Schwarzenegger signed the 2005-06 state budget yesterday. Overall, this budget is very good news for the University of California, particularly after the last four years of difficult cuts.”

American university life offers some lamentable examples of “diversity” carried to wretched excess. I share Mr. Hanson’s sympathies, by and large. As a Harvard alumnus, I wrote President Summers a letter of support. However, it is mere enthymeme to suggest that the presence of these vices proves the absence of other virtues. The current Berkeley online newsletter highlights several kinds of conservatively incorrect good news, by which I mean the kind that doesn’t “compute” for ideologues. One example is the award of this year’s Templeton Prize to a Berkeley Nobel laureate in physics, Charles Townes, for his work on the compatibility of faith and science. Another is an across-the-board banner year for Berkeley teams, Cal’s pencil-necks finishing #1 in the nation in men’s rugby and women’s crew.

Berkeley remains liberal, of course. The same letter that hails the Schwarzenegger budget as, in several named regards, very good news goes on to lament the elimination of “$3.8 million in funds for research into labor and employment issues.” For conservatives, that bad news is good news, needless to say. The letter that congratulates Dr. Townes on his Templeton also cheers the receipt of $40 million from the Li Ka Shing Foundation for health sciences research, specifically including stem cell research. For conservatives—the ones running things, I mean, not those quietly put out to pasture—stem cell research is the devil’s work. Finally, the online newsletter mentions a talk that Chancellor Birgeneau, a physicist (diversity-obsessed in Mr. Hanson’s description of him), delivered to disadvantaged students in Berkeley’s Upward Bound math-science program about “states of being, flat-screen TVs, and the secrets of sea monkeys.” Conservatives will groan not just at this catering to the disadvantaged but also at the very survival of Upward Bound.

Let them. In my youth, I, too, was enthusiastic about William F. Buckley, Jr. The first article I ever published appeared inNational Review. But if I may paraphrase and reverse an oft-quoted line, “A man who isn’t conservative at 20 doesn’t have a brain. A man who is still conservative at 40 doesn’t have a heart.” I quite agree with your editor that conservatism has carried all before it in the United States. Alas, I find its thinking as mushy and its heart as hard as ever.

Jack Miles
Los Angeles, CA

Victor Davis Hanson replies:

It is hard to know whether Mr. Miles’s letter is sincere or a caricature of a throat-clearing academic. Instead of discussing what I wrote, he only makes conjectures about what I didn’t write—that conservatives such as myself would oppose U.C. stem cell research or lampoon Chancellor Birgeneau’s talks to the underprivileged.

Meanwhile he does not address, much less adduce any evidence to refute, the points of the piece—namely that to save his job Lawrence Summers backed down from the defense of free inquiry and granted $50 million in Danegeld to the feminist lobby; that rather than addressing Ward Churchill’s multifaceted fraud, Elizabeth Hoffman evoked the tired bogeyman of McCarthyism; that Denice Denton, though praising diversity at a time of budget cutbacks for staff, created a special U.C. billet for her girlfriend that was not open to other applicants; and that Robert Birgeneau plans to take steps so that his campus’s ethnic profile will mirror that of the state’s, but will not tell us in his world of racial percentages how that will be so—other than by de facto restricting the number of Asians, for example, who meet current admission criteria so that others who do not can enroll.

Pace Mr. Miles, the ranking of graduate schools—or the success of the men’s rugby or women’s crew team—is not a reliable barometer of undergraduate education, which really is threatened by spiraling costs, the exploitation of part-time faculty, the rarity of senior professors who teach many freshmen and sophomore courses, and an increasingly politicized and therapeutic curriculum.

Since the essay appeared, Ward Churchill has been granted a merit-pay raise from the University of Colorado, and a Republican governor managed to avoid a fifth year of additional funding cuts at the University of California.

* * *

A Nation at War

I wonder what planet Adam Wolfson lives on (“Between Idealism and Realism,” Summer 2005).

First, he asserts that “Americans have little taste for war.” Our record, however, is that of one of the least pacific of nations. Without provocation, American forces have invaded Canada, Mexico, Cuba, and the Philippines one or more times. With no direct threat to the United States, American forces have been in extended wars in Korea, Vietnam, and Iraq. There may have been a case for some of these wars, but no purpose is served in denying this record. Second, he claims that “George Bush…had resisted efforts to increase significantly the defense budget….” In fact, total national defense outlays increased from $304.9 billion in fiscal year 2001 to (an estimated) $465.9 billion in fiscal year 2005, a 53% increase over four years. One wonders how large an increase Wolfson would regard as significant.

William A. Niskanen
Chairman, Cato Institute
Washington, D.C.

Adam Wolfson replies:

Back on planet Earth, or at least that portion of it called Red America, many of us think that Korea, Vietnam, and Iraq were defensive wars. Only an ideologue would suggest, as does Mr. Niskanen, that the United States is some sort of an imperialist hyperpower. Indeed, it is highly revealing that nowhere in his diatribe does he make mention of the September 11 attacks on our country.

But let’s talk numbers: during World War II defense spending eventually reached close to 40% of GDP; at the height of the Cold War it was about 10%; and through the late ’60s and early ’70s, it ranged from 7 to 9%—only to fall sharply in the Carter years. During Reagan’s defense build-up it reached 6%. Today, defense spending is 3.7% of GDP—exactly what it was in 1995. That is, exactly what it was when we were at peace and with nary an enemy in sight. So, no, it does not seem to me that we are exactly on a war-footing, even though we are most certainly at war.

One of Reagan’s favorite maxims was “peace through strength.” It was a wise policy then; and it’s a policy we would do well to follow now.

* * *

Libertarian Rights

I was deeply disappointed by John Eastman’s misrepresentations of libertarianism in his review of a new Clarence Thomas biography (“Colorblind Justice,” Summer 2005). Prof. Eastman claims that libertarians don’t believe in inalienable rights or in natural-rights theory in general. This is preposterous. Robert Nozick begins his libertarian classic Anarchy, State and Utopia by stating that “Individuals have rights, and there are things no person or group may do to them (without violating their rights).” Randy Barnett’s recent Restoring the Lost Constitution is based entirely on the theory that inalienable rights, and not consent as such, give legitimacy to a constitution. And Ayn Rand wrote that a person’s “life is his by right (which means: by moral principle and by his nature)…and that the only moral purpose of a government is the protection of individual rights.”

Obviously, Prof. Eastman may disagree with these and other libertarian thinkers as to the origin or significance or function of rights, and he may even think their interpretations are self-contradictory or silly. But to write that libertarians don’t believe in natural rights at all is like denying that Christians believe in God. No serious debate over libertarianism and conservatism can exist if the ideas at issue are mischaracterized for your readers.

Timothy Sandefur
Pacific Legal Foundation
San Francisco, CA

John C. Eastman replies:

Given Timothy Sandefur’s use of quotation marks around passages from Robert Nozick and Ayn Rand, his omission of quotation marks around what he claims I wrote is quite telling. Even a cursory read of my review of Ken Foskett’s biography will demonstrate that Sandefur’s accusation is unfounded.

I did take issue with Foskett’s characterization of Justice Thomas’s jurisprudential philosophy as simply an anti-government libertarianism. I noted instead that the Justice’s philosophy is “grounded in a morality of self-evident truths and inalienable rights” (emphasis added) that is “both deeper than and different from libertarianism.” Sandefur apparently overlooked the word “morality” in my description, but it is critically important to the point I was making.

Indeed, I take the claim that there is a moral foundation to the idea of unalienable rights (or at least that government has a role to play in fostering the kind of moral virtue necessary in a government devoted to securing those rights) to be the principal point of disagreement between conservatives and contemporary libertarians. The latter, quite frequently (though not uniformly), follow a more amoral understanding of inalienable rights than conservatives do, an understanding that all too often prevents them from distinguishing between licentiousness and liberty.

Our nation’s founders did not have any such confusion. In his First Annual Message to Congress in 1790, for example, President George Washington urged the Congress to foster knowledge among the citizenry because knowledge contributes to the security of a free constitution by teaching people “to discriminate the spirit of liberty from that of licentiousness—cherishing the first, avoiding the last.” In my view, Justice Thomas’s jurisprudence reflects this deeper, moral understanding of liberty rather than simply the anti-government position depicted by Foskett. If Sandefur now believes that there is a moral component to the doctrine of inalienable rights, I welcome him to our side.

* * *

Is Tradition Enough?

Ralph Rossum’s review of two new books on Justice Scalia (“The Wit and Wisdom of Justice Scalia,” Summer 2005), is meant to display a different method of deciding cases than that of liberal activists who have dominated the judicial scene for more than half a century.

“Text and Tradition,” according to Rossum, “is a phrase that fills Justice Scalia’s opinions. Judges are to be governed only by the ‘text and tradition of the Constitution,’ not by their ‘intellectual, moral and personal perceptions.'” For Scalia, we are told, reliance on text and tradition is a means of constraining judicial discretion. Scalia believes that “the main danger in judicial interpretation of the Constitution…is that judges will mistake their own predilections for the law.” According to Rossum, “Scalia holds that the Constitution creates two conflicting systems of rights. One is democratic—the right of the majority to rule individuals; the other is antidemocratic—the right of individuals to have certain interests protected from majority rule…. He thinks that by identifying those areas of life traditionally protected from majority rule the Court can objectively determine which individual freedoms the Constitution protects.”

As Abraham Lincoln said, “Stand with anybody that stands Right. Stand with him while he is Right and Part with him when he goes wrong.” In his stand against judicial activism, Justice Scalia certainly stands right, and Prof. Rossum is right for commending him. But in the jurisprudence with which he takes that stand, he is fundamentally in error. Although Justice Scalia frequently reaches what I believe are right results, they are nonetheless based upon false premises. Because of this, his correct conclusions are easily discredited in the public mind by the liberal activists who dominate the judicial scene.

To begin with, the idea that the Constitution creates two conflicting systems—a right of the majority to rule and an allegedly anti-democratic right of “individuals” for protection of “certain interests” from majority rule—is wrong. Justice Scalia is utterly mistaken as to what constitutes what he calls “democratic theory.” In an address delivered in Rome in June 1996, Scalia defined it thusly: “The whole theory of democracy…is that the majority rules; this is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection.” And again: “…you cannot have democratic theory and then say, but what about the minority? The minority loses except to the extent that the majority, in its document of government, has agreed to accord the minority rights.”

I don’t know where Scalia learned what he calls “democratic theory,” but he agrees with Thrasymachus who argued in Plato’s Republic that justice is the interest of the stronger; and, of course, with Stephen A. Douglas who famously didn’t care whether slavery was voted up or down in the U.S. territories. Pure majoritarianism leads directly to the plebiscite, which has been the tyrant’s instrument of legitimacy from Napoleon to Hitler, Stalin, Mao, Pol Pot, and Saddam Hussein. The slightest reflection would prove that a majority formed without the freedoms of speech, press, and association would not have any democratic legitimacy whatsoever. These rights are natural rights, rights with which we have been endowed by our Creator. They are not “accorded” by the majority, and no democratic majority, properly so called, can exist unless they are honored a priori in the electoral process. Individual rights, possessed by all, majority and minority alike, are not anti-democratic, but the very condition of the possibility of democracy as free government.

Scalia speaks of the majority “according” the minority rights in its document of government. He is in all likelihood thinking of the Bill of Rights added to the original Constitution. But Madison and his colleagues never for a moment thought that those rights arose from their enactment. The enactment was “to secure these rights,” rights which existed prior to, and entirely independent of, their enactment. These rights are not a gift by the majority to the minority. They are a gift to all mankind from the Author of the “laws of nature and of nature’s God.” Is a majority democratic when it denies these rights to the minority? Such denial constitutes the very negation of democracy, rightly understood. White majority rule in the Jim Crow South was not democratic rule.

According to Rossum, Justice Scalia “thinks that by identifying those areas of life traditionally protected from majority rule, the Court can objectively determine which individual freedoms the Constitution protects. ‘I would separate the permissible from the impermissible on the basis of our Nation’s traditions, which is what I believe sound constitutional adjudication requires.'” But the nation’s traditions include 250 years of slavery and at least three quarters of a century of Jim Crow. Aristotle observed, however, that what men seek is not the traditional but the good. Freedom of speech is a good tradition; lynching is a bad tradition. It is a mistake to appeal to tradition, unless one distinguishes good traditions from bad traditions. The most important distinction is then not between the traditional and the untraditional, but between the good and the bad. In his letter to the Hebrew Congregation in Newport, President Washington said, “It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” Not tradition—which in European countries, before and after the American Founding, was mainly one of persecution and intolerance—but “inherent natural rights” determined the rights of the Jews. The law of nature and the law of reason were one and the same, as John Locke had said. While tradition might be invoked when it agrees with reason, it ought not prevail in opposition to reason.

The American tradition of freedom has been one of aspirations long held and gradually achieved. The documentary source of those aspirations, standing at the headwaters of all our good traditions, is the Declaration of Independence. Yet Justice Scalia hardly ever mentions it, and he denies that it has any role in constitutional jurisprudence. Whatever the merits of his opinions in particular cases, he is virtually of no use at all in the warfare waged against our good traditions by liberal judicial activists.

Harry V. Jaffa
Distinguished Fellow
The Claremont Institute
Claremont, CA

Ralph A. Rossum replies:

Justice Scalia, it is true, does not proceed from the natural-rights perspective of the Declaration of Independence, which he dismisses as an “aspirational” theory of constitutional interpretation. As Harry Jaffa’s students, Larry Arnn and Ken Masugi, have correctly characterized, Scalia has a “vulgar majoritarian” understanding of democracy. His theory of democracy bears no relation to the nation’s traditional understanding of the limits of the principle of majority rule, so perfectly captured by Thomas Jefferson in his First Inaugural Address: “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 law must protect, and to violate would be oppression.” According to Jefferson and the traditional American understanding, “the minority possess their equal rights” by nature and therefore independently of the majority; their equal rights are antecedent to majority rule, and majority rule is circumscribed by them.

Scalia simply has not developed a well-thought-out understanding of the principles of democracy. Perhaps as a consequence, he appears to assume that democracy everywhere operates as it does in the United States at the beginning of the new millennium: where the Constitution, as amended, protects the rights of minorities; where both the Constitution and its subsequent amendments were ratified by extraordinary majorities; and where the principal threat to democracy is not majority rule trampling on the rights of minorities, but the Court itself threatening the right of the majority to rule itself.

But what is the practical consequence of Scalia’s logical-positivist assumptions? If Scalia were a framer, they would be significant—and harmful. But Scalia is simply a justice on the Supreme Court. The only justice on the Court to operate on the natural-rights principles of the Declaration that both Prof. Jaffa and I embrace is Justice Clarence Thomas. Yet despite their philosophical disagreements, Justices Scalia and Thomas have, through the end of the Court’s 2004-05 term, agreed in 87.3% of all the cases they have heard together, and in 76.7% of all recent non-unanimous cases. Over their 14 years together on the Court, in only 38 cases has one written a dissenting opinion when the other has voted with the majority; in only two cases has one written the opinion of the Court while the other has joined the dissent; and, most remarkable of all, in only five cases has one written the majority opinion while the other has written a dissent (and—this is of critical importance—all of them turn on questions of statutory construction).

The only hypothetical case I can imagine where Justices Scalia and Thomas might differ (and I emphasize might) when the stakes were truly high would be something like the following: Congress passes a law, following the example of the People’s Republic of China, mandating the abortion of all children but a couple’s first child. Thomas, on natural-rights grounds, would doubtless find such a law unconstitutional; Scalia, on logical-positivist premises, probably would not.

But Scalia is not simply a logical positivist; he is also a textualist, and as a textualist he would doubtless conclude that such a law is contrary to the text and traditional understanding of the right to liberty under the Due Process Clauses of the 5th and 14th Amendments. And, of course, if the American public were to become so morally corrupt as to tolerate, much less endorse, the passage of such a law, it is difficult to imagine that either Thomas’s natural-rights arguments or Scalia’s textualism would in any meaningful way save us. Remember the words of James Wilson, one of six framers to sign both the Declaration of Independence and the Constitution and a member of the original Supreme Court: “For a people wanting to themselves, there is no remedy.”

* * *

Conservative Political Correctness

John Kienker’s attempt to drum the author of The Politically Incorrect Guide to American History out of the ranks of legitimate conservatives is an example of a kind of secular excommunication the conservative movement could do without (“Mainly Incorrect,” Spring 2005).

Important issues divide Kienker and Thomas Woods: when America should intervene abroad, for example, and whether conservatives should embrace the legacy of the secessionist South. On some of these I’d guess I’m with Kienker. On others I’m closer to Woods. For instance, our overgrown government looks to me (an only partially reconstructed Southerner) more like America’s punishment for slavery than like the triumph of liberty.

And Kienker’s absolute distinction between the right to revolution, which seems to be a first principle with him, and the right to secession, which he utterly rejects, seems even more eccentric than Woods’s sympathy with the South.

But do we need a political correctness of the Right? Conservatives should be able to point out each other’s errors without resorting to claims that the other side’s arguments “disgrace” us and undermine the “respectability and honor” of the conservative movement. Let’s save excommunication for the truly offensive and dangerous.

Elizabeth Kantor
Managing Editor
Eagle Book Clubs
Arlington, VA

John B. Kienker replies:

Neither the Claremont Review of Books nor its managing editor presumes to be the Grand Inquisitor of the conservative movement. But a conservative creed that embraces both the principles of liberty and of slavery is confused about what it calls us to affirm.

Today’s liberalism rejects the idea of rights that exist prior to government in favor of an administrative state, unlimited in scope and dedicated to an unending quest for “progress.” In the 19th century, Southern demagogues placed “sovereign states” above individual rights, denounced the basis of just government as a “self-evident lie,” and championed their own version of progress, based on the latest theories of racial evolution.

Ms. Kantor thinks my distinction between revolution and secession is “eccentric.” But it is the same distinction made by Washington, Jefferson, Madison, Andrew Jackson, Daniel Webster, and Lincoln. At its core, our republican government is animated by the abstract truth that all men are created equal. This principle, as Lincoln said, is the only sure rebuke and stumbling block to reappearing tyranny and oppression in whatever guise it may appear. Any conservatism that denies this is quickly reduced to an unprincipled mess of brute preferences.

In the end, it is Woods who favors excommunication, casting out Abraham Lincoln, and with him, our natural-rights Constitution. I have read Woods’s more recent book defending the Catholic Church, and enjoyed it. I hope he will be converted to the founding principles and join us in strengthening the conservative movement. But as conservatives, we must decide what we will conserve: the self-evident truths of the American Founding, or a moral relativism leading either to anarchy or despotism.