Defending the Constitution

We are grateful that Professor Edward Erler took the time to review our book, Originalism and the Good Constitution (“Originalist Sin,” Summer 2014). Unfortunately, he mischaracterizes our position and disregards an important aspect of the Constitution in the service of his own political philosophy. Erler treats us as if we believe that whatever a supermajority of the nation enacts, based on its own preferences, is a good constitution. This is not true. We make clear that we believe that a good constitution incorporates the core principles of the liberal tradition.

We do believe part of what makes a constitution good is that it promotes a polity that furthers the preferences of the people. But our argument for the supermajoritarian process also looks beyond preferences to the judgments of the people. We thus develop at some length an argument to show that supermajoritarian processes are the most likely method for a polity to entrench provisions that are in the public interest.

Erler appears to believe that the Constitution articulated certain principles that should not be changed by future generations. But the Constitution itself reflects the framers’ understanding that each generation could contribute to making our fundamental law. The amendment provision in Article V is general in scope, permanently excluding only equal representation in the Senate from legal transformation. Although the Constitution certainly treats the results of the founding moment of 1789 as important, by the terms of the document the founding cannot be regarded as sacrosanct for all time. Thus, Erler’s major complaint about our theory of the Constitution—that our theory recognizes the Constitution’s adaptability—is really an argument against the nature of the actual Constitution.

The Constitution would not have been ratified if the Federalists had not agreed during the ratification contest to propose a Bill of Rights in the form of amendments. Later, the Reconstruction amendments removed the blemish of slavery from the nation. While Erler attempts to view these amendments as a continuation of the founding, this is clearly not the case. The original Constitution permitted slavery and the ending of slavery reflected the views of a different generation, transformed by the experience of the Civil War. Finally, the amendments of the Progressive Era, such as the income tax and the direct election of senators, reflected the views of that time period and significantly modified the Constitution.

Erler compares us to Bruce Ackerman, who believes that the Constitution can be modified without following the rules established in Article V. While we do believe that the Constitution can be changed, changes in fundamental law should occur only through the beneficial process provided in the Constitution—a process that treats each generation equally and prevents one generation from modifying the Constitution without a sufficient consensus.

Although we differ with Prof. Erler, here are two attempts to find some common ground between his and our views. First, the amendment process can be seen as one that is well designed to capture the application of enduring natural law principles in a changing material world. Surely, Erler cannot think that political institutions and norms might not have to be changed in light of new knowledge and technology. Without the supermajoritarian process, we must rely for these new institutions and norms either on judges or on mere majorities. We show why these are inferior solutions. And we believe that Erler could have modified our arguments to show why these are also inferior to a supermajoritarian process even if one views constitutions as discovering and tracking natural law principles.

Second, we argue that originalism should employ the legal interpretive rules at the time of a constitutional provision’s enactment in order to resolve any ambiguity or vagueness in the Constitution. We did not have space in the book to provide a complete catalogue of these principles, but there is some evidence that one of these interpretative rules would construe constitutional provisions as not violating natural law unless they were clearly intended to do so. If there was sufficient evidence to support such an interpretive rule, that would be a significant result. It would mean that natural law would be reflected in constitutional provisions, even when they did not expressly reference natural law concepts. Such an argument would help Prof. Erler find the natural law foundation he desires in the Constitution.

John O. McGinnis
Northwestern University
School of Law
Evanston, IL

Michael B. Rappaport
University of San Diego
San Diego, CA

Edward J. Erler replies:

Nothing in John McGinnis and Michael Rappaport’s response has inclined me to change my view that Originalism and the Good Constitution has nothing to do with originalism or the good constitution. According to the authors, the only valuable feature of the Constitution is Article V, which allows amendments by supermajorities. The only permanent value of the Constitution, therefore, is that it provides a process for change—but even the supermajoritarian amendment process can be amended, so there is actually nothing of permanent value in the Constitution.

McGinnis and Rappaport—like most present-day originalists—believe that the ideas of one historical epoch are merely the expression of the regnant opinions and ideology of the time, and have no application to circumstances of any other historical era. In this view, the “laws of nature and of nature’s God,” and the other elements of 18th-century “ideology,” have been rendered obsolete by the progress of history. One wonders, however, how an idea that was created during a particular historical epoch, claiming that all thought is valid only for the historical epoch that produced it, can claim universal validity.

For the authors, Article V demonstrates that the framers believed that each generation should be allowed to contribute to the making of fundamental law by introducing its own values and preferences into the Constitution. In this way, no generation will be ruled by what Thomas Jefferson called the “dead hand of the past.” But the founders did not speak in terms of “values.” The principles announced in the Declaration and animating the Constitution were derived from reason and nature, and hence were permanent and ought not to be changed.

The Constitution was designed to put the principles of the Declaration into practice. Yes, the Constitution would need an amendment from time to time as circumstances changed and imperfections were discovered. The principles would remain the same, but changing circumstances would demand different applications, and here prudence would be the guide. Some constitutional imperfections were known from the beginning, and others would reveal themselves with experience.

The protections for slavery in the Constitution were necessary to purchase the support of the slave-holding states for a strong national government. And as the most perceptive founders understood, without a strong national government the prospect of ever being able to end slavery was remote. The clauses in the Constitution dealing with slavery are compromises, not principles. It is possible to distinguish the principles of the Constitution from its compromises only by reference to the Declaration.

McGinnis and Rappaport believe that it “is clearly not the case” that the Reconstruction amendments were an attempt to complete the regime of the founding by extending the reach of the principles of the Declaration. But consider the words of Thaddeus Stevens, a prominent member of the Joint Committee on Reconstruction:

It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.

Similar statements could be multiplied a hundredfold from the time of the Reconstruction debates.

In explaining why the words “slave” and “slavery” were never used in the Constitution, Frederick Douglass, the great abolitionist leader and former slave, explained that the compromises dealing with slavery in the Constitution were like scaffolding used to prop up a building during construction. Once the building was complete, Douglass said, the scaffolding was torn down and no one ever remembered that the building needed support during construction. The Constitution was completed, Douglass argued, with the Reconstruction amendments, when it came into formal harmony with the principles of the Declaration. The scaffolding—those compromises in the Constitution protecting slavery—were now gone. And since the words “slave” and “slavery” never appeared in the Constitution, there is no reminder that that affront to the principles of human nature was ever there. The framers knew slavery was destined to disappear and they wanted no trace of it to remain. The Reconstruction amendments were passed—indeed a Civil War was fought!—not to reflect the changing values and preferences of a new generation but to fulfill the moral imperative set in place by the founding generation.

For the complete discussion of the CRB’s review of Originalism and the Good Constitution, visit our online feature Upon Further Review at www.claremont.org/ufr.

Judicial Engagement

I appreciate Jeremy Rabkin’s review of my book, Terms of Engagement, and I agree with him that we will not “arrive at a libertarian paradise through ‘judicial engagement’” (“A Broadside for Liberty,” Summer 2014). Of course, that is not the goal. It is consistent, conscientious enforcement of constitutional limits on government power.

Most conservatives and libertarians recognize that we have nothing of the sort today, but they may assume, as it appears Rabkin does, that the obstacles are mainly theoretical: should “standards of justification in federal administrative law” be tightened; “would we actually get more liberty by imposing more constraints on federal power”; and what if anything does the Constitution say about abortion and same-sex marriage?

Those are weighty questions, to be sure, and deserving of careful attention. But it is important to realize how much progress can be made without breaking the ideological stalemates that surround them.

For example, as Rabkin notes, the Supreme Court has held that the Constitution protects certain forms of economic liberty, including the right to earn a living free from unreasonable government interference. But that right has been rendered functionally meaningless because courts will accept virtually any explanation for infringing on it, no matter how disingenuous or absurd. Thus, in upholding an occupational licensing law for florists in Louisiana, a federal judge actually cited misplaced corsage pins and infected dirt as possible justifications!

As I explain in my book, while this cavalier approach represents the default setting in modern constitutional litigation, we know that judges are capable of providing genuine judgment—or “judicial engagement”—because they do so in cases involving the small handful of rights the Supreme Court deems sufficiently “fundamental” to receive meaningful judicial protection.

For example, if Louisiana had tried to restrict the advertisement of floral arrangements instead of their sale, that would have been a free-speech case, and the judge’s approach would have been completely different. Instead of inviting the government to invent “hypothetical” (read: fraudulent) justifications and accepting factual assertions for which it had no evidence, the judge would have insisted upon an honest explanation for the advertising restriction and a reasonable fit between the government’s ends and the means chosen to advance them. Moreover, the government’s assertions would have had to be supported by admissible evidence rather than mere “speculation and conjecture.”

Notably, this is what much of constitutional litigation comes down to: whether courts will insist that the government actually have a constitutionally permissible reason for restricting people’s freedom or will instead simply presume that it does. Usually it’s the latter, and that has played havoc with the Constitution’s plan for constitutionally limited government.

Though maligned by pundits on the Left and the Right as a libertarian euphemism for judicial activism, judicial engagement simply calls for consistency and candor in constitutional adjudication. If the government must have a valid reason for restricting people’s liberty in some cases, it should have a valid reason in all cases. If facts matter in some cases, then they should matter in all cases. Simply put, there is no such thing as a second-class constitutional right, no matter what the Supreme Court might say.

It is true that judicial engagement does not provide answers to all of the hard constitutional questions. It doesn’t tell us whether abortion is mostly about a woman’s right to privacy, an unborn child’s right to live, or the government’s obligation to provide equal protection to all “persons” within its jurisdiction. Nor does judicial engagement provide definitive answers about same-sex marriage, the legitimacy of the administrative state, or the precise scope of federal power. But it is still an incredibly powerful tool of constitutional adjudication because it insists upon one thing that modern courts rarely do: an honest explanation for government regulation.

Clark M. Neilly, III
Institute for Justice
Arlington, VA

Presidents vs. Parliaments

In reviewing my book, The Once and Future King, my friend John Yoo complains that I misunderstand the American presidency, especially its ability to supply energy in wartime: “Executives could rise to the challenges of foreign affairs, national security, and war, which would paralyze slow, deliberative legislatures” (“Seeds of Monarchy?” Summer 2014).

Well, John Yoo would say that, wouldn’t he? Still, he does have a point. Two years ago, people in Washington expected Barack Obama to attack Syria, until the British Parliament voted not to go to war. Yoo mightn’t have liked that, but then he might recollect that my native Canada never fought a foolish or ignoble war, or lost one either.

Yoo also takes issue with my conclusion that presidential regimes are bad for liberty. As an empirical matter I don’t think that’s debatable, but that’s not to say that America is unfree. Rather, its Constitution was not made for export, unlike the post-1832 British constitution. If America is free, then, it’s in spite of its Constitution and not because of it.

Professor Yoo correctly notes that there’s more stability under the Constitution’s separation of powers. That’s merely another way of describing gridlock, however. There was a time, in the distant past, when this might have prevented inefficient, encroaching laws from being passed, but since then America has sadly played catch-up, with the 1965 Immigration Act, Sarbanes-Oxley, Dodd-Frank, Obamacare, and a host of others—a one-way ratchet of ill-advised laws. That’s why, at this point in history, what matters is the ability to reverse bad laws, and there parliamentary regimes trump presidential ones.

We are all patriots first and philosophers second, and that’s just as it should be. Still, there’s a dark side to patriotism when it amounts to an “I’m all right, Jack” complacency. At a time when America is dropping like a stone in measures of economic freedom, when it imprisons more people than any other country, when its people are less wealthy and its government more corrupt than many of its First World competitors, when its tort law regime resembles a demented slot machine of judicially sanctioned theft, when its public debt has ascended to alarming levels, when its president makes laws by diktat and refuses to enforce laws he dislikes, John Yoo’s blithe conclusion that we live under the best of all possible constitutions seems a little tendentious.

F.H. Buckley
George Mason University
School of Law
Arlington, VA

John Yoo replies:

I am pleased that my friend Frank Buckley has chosen to respond to my review of his book, and I am grateful to the CRB for the opportunity to comment on several of the provocative points that he makes.

First, Buckley observes that the British Parliament acted before President Obama on whether to use force in Syria. But Britain’s quick action does not condemn the Constitution’s original design, because our current president rejects the very role that the Constitution created for him. In foreign affairs, Obama often embraces the parliamentary model favored by Professor Buckley. Our nation and world are now experiencing the heavy costs of presidential passivity.

Second, Buckley suggests that parliamentary systems keep nations out of disastrous wars. Though it may be true that Canada has never fought or lost a foolish or ignoble war, that is only because Canada has never had to defend itself: its security has relied first on the British Empire and now on the United States. Parliamentary democracies may be biased against moving to war, but that may prove a mistake when war becomes necessary. France and Great Britain sat idly as the gathering storm of fascism loomed on the horizon.

Third, Buckley asserts that “[a]s an empirical matter I don’t think that’s debatable…that presidential regimes are bad for liberty.” But in social science, almost all empirics are debatable, and one can get a regression model to confirm any outcome one wants if one puts in the “right” data.

Fourth, Buckley’s response conflates one of the causes of stability—gridlock—with a harmful counterfeit of stability. But stability is stability, and one of the ways to achieve it, as intended by the framers, was to slow down the process, to pit faction against faction, and to allow only those laws that achieved a broad consensus from the popular House, the state-representing Senate, and the nationally elected president. There is no doubt that the American system has passed poor laws in the past 50 years. That is the fault not of our original Constitution but of the delegation of legislative power to the modern administrative state—an evasion of the separation of powers that is far worse in European parliamentary systems than here. It is the administrative state that harms American prosperity and freedom; without a president to oversee them, the agencies might become wholly independent of popular accountability. The presidency is not perfect, nor necessarily without the need for tweaks here and there, but I’ll take it over the alternatives any day.

In Praise of Moderation

Although Aristotle, Cicero, Montaigne, Pascal, Montesquieu, Hume, John Adams, and Tocqueville lived in different times and their works addressed different challenges, they all shared at least one thing, apart from being great minds: they all believed in…moderation. The virtue of moderation presupposes reasoning and deliberation, but it also demands intuition, foresight, and flexibility for which there is no simple or universal formula.

Given the weight carried by all these august figures, it would seem both imprudent and unwise to ignore or dismiss the virtue of moderation. But this is exactly what Steven Hayward does in a courageous reconsideration of Barry Goldwater’s 1964 presidential run (“Extremism and Moderation,” Summer 2014). Mr. Hayward does a fine job at reminding us that Goldwater was a patriot who courageously fought for liberty in dark times. Hayward also repeats all the usual objections that have been raised over time against moderation and reminds us why it is difficult to be passionate about this complex, difficult virtue. In the end, he suggests that moderation is flawed when it comes to opposing the growth of the state, and he ends his essay with a dismissive remark about political moderates in the Republican Party whom he sees as losers who deserved their defeat precisely because of their moderation. Although I am not an expert on American politics and history, I think Goldwater’s massive electoral loss in 1964 (unfortunately) speaks for itself.

One paradox about moderation is that it is not a virtue for all seasons and here I echo some of Hayward’s concerns about this virtue. What is moderate in one context and period may significantly differ in another, and sometimes it is not wise or recommended to be moderate, period. Aleksandr Solzhenitsyn would probably not have been successful in challenging the Soviet Communist system had he adopted a more moderate approach. Sometimes, only immoderate voices like his can successfully oppose tyranny. But this caveat applies mainly to the fight against totalitarianism, while Hayward seems to believe that opposing the growth of the liberal state, too, requires an extreme and uncompromising disposition today.

Having lived under a real totalitarian regime (in Communist Romania), I deeply sympathize with Hayward’s appreciation for liberty. Still, I invite him to join the distinguished company of spirits mentioned at the outset of my letter in their nuanced but firm appreciation of moderation.

Aurelian Craiutu
Indiana University
Bloomington, IN

Steven F. Hayward replies:

Aurelian Craiutu’s challenging letter compels a consideration of prudence, which comprises extremism and moderation rightly understood. I enthusiastically join Craiutu in celebrating moderation as it is understood by Aristotle, et al. I thought I was clear enough in the article that Goldwater’s rhetorical embrace of “extremism” was politically imprudent, and therefore immoderate. As such Craiutu’s criticism here is partly just. However, we’ll have to agree to disagree that an “extremist” disposition isn’t called for in the context of galloping liberalism in 1964 and rampaging liberalism today. I disagree that extremism however understood is applicable only to openly totalitarian situations. The consequent logic of contemporary liberalism is highly totalitarian in many areas; in such a context the “extremist” is the true moderate. I don’t think the moderation of the contemporary Republicans I mention (Dole, McCain, Romney) is derived from any deep prudence, but from simple (and simple-minded) political calculation.

Adams, Burke, & Conservatism

I commend Richard Samuelson for holding up John Adams as an example to American conservatives (“John Adams vs. Edmund Burke,” Summer 2014) and, by doing so, following in the footsteps of earlier commentators, notably Russell Kirk, who devoted a lengthy chapter to Adams in his book The Conservative Mind. Perhaps it is not surprising, though, that Samuelson should feel a need also to contrast John Adams with Edmund Burke inasmuch as doing so might enhance his credibility with readers of the Claremont Review of Books. Burke is, after all, a sharp critic of ideology based on abstract, ahistorical “principles.” It is unfortunate that Samuelson should argue for treating Adams as a model for political conservatism by trying to make him look different from Burke in that respect. It only weakens his case for Adams. Samuelson contends that while Burke defends “tradition,” Adams is more concerned to defend “human nature” and “self-evident truths.” Adams is more attracted to—surprise!—“the laws of nature and of nature’s God,” which, presumably, makes him look more like Harry V. Jaffa.

Samuelson’s way of arguing for Adams’s superiority to Burke exemplifies a philosophical weakness that seems ubiquitous and unavoidable in Claremont Institute circles: the assumption that moral universality or right must be ahistorical and abstract and different from, or in conflict with, a belief in the importance of tradition. In other words, moral universality and history cannot have any intimate, integral connection; natural right must be wholly apart from history. This view involves reification of human phenomena, conceiving of living reality as if it consisted of “things,” so that moral universality becomes one thing, A, and history another, B. Leo Strauss famously contended that to regard tradition, convention, the ancestral, or the like as being in any sense authoritative is to abjure reason and to become a “historicist.” Strauss constructed a gap between natural right and tradition that is so deep and categorical that it seems to emanate less from philosophical reasoning than from psychological need.

That history is full of shoddiness, cruelty, mediocrity, and baseness goes without saying. Dark forces are forever threatening the higher life of humanity. Nothing could be more obvious to Edmund Burke. It is evident, therefore, that sound tradition assumes some standard of discrimination and selection. It does not follow that this standard must be ahistorical, merely abstract. History contains countless examples of the potentiality of union between universality and particularity. Wherever the good, the true, and the beautiful have been realized—where they have come alive in concrete instances—there an experiential basis exists for sound tradition. Sound tradition, then, is not understood as an alternative to universality, but as a partial expression of and a guide to universal values.

As is typical of people in the Claremont circle, Samuelson attributes great significance in a discussion of moral universality to certain phrases—“the laws of nature and of nature’s God” being one—as if the reality to which they refer were simple and fully transparent and not almost infinitely complex. Out of context, terms that are assumed to express “universal principles” can in fact mean anything at all. “The laws of nature,” for example, could be understood as something like natural law and have historical resonances, or it could refer to natural rights of a socially atomistic Lockean type, or stand for the rights of man celebrated by Jacobins. To demonstrate that Adams is more “American” than Burke—a not implausible hypothesis—Samuelson notes Adams’s use of certain phrases that seem to him to indicate a fondness for abstract right. But, again, the meaning of phrases has to be determined in context. Burke is as strongly committed to defending “human nature” and moral universality as is Adams. There are numerous phrases in Burke that indicate as much. What Samuelson does not understand is that having such concerns is perfectly compatible with—indeed, an aspect of—defending tradition.

Samuelson makes his case for Adams as a genuinely American conservative by citing a number of Adams’s core beliefs. He doesn’t seem to realize that the more he says about Adams, the more he undermines the notion that Adams was attracted to ahistorical principles, and the more Adams looks like…Burke.

Do I conclude that Burke was as much an American as Adams? Of course not. I am only suggesting that if Samuelson were to give up the artificial contrast between moral universality and tradition, which is based on simplistic reification, he would be able to see that the two men are American and British versions of much the same outlook on life and politics.

Claes Ryn
The Catholic University of America
Washington, D.C.

Richard Samuelson replies:

What does it mean to reason ahistorically? John Adams, as I noted in my essay, held that “the same causes produce the same effects” among men. That view contrasts with the belief, which was growing in his day, that history is a process, what many today call “the historical process,” that moves ever onward. In the late 1780s, Adams was already suggesting that the denouement of the French Revolution would be the rise of a dictator such as Napoleon. Why? Human nature being constant, the likely course of events is often predictable, if one is wise enough to know where to look.

Claes Ryn allows that the argument that “Adams is more ‘American’ than Burke” is a “not implausible hypothesis,” and he agrees that Adams is “an example to American conservatives.” Similarly, he holds that “It is evident, therefore, that sound tradition assumes some standard of discrimination and selection.” The question, then, is how to understand that standard, and what to label it. Recall the lines attributed to Charles Napier in India:

This burning of widows is your custom; prepare the funeral pyre. But my nation has also a custom. When men burn women alive we hang them…. Let us all act according to national customs.

What, other than some standard beyond the two particular traditions, can inform us which custom is more reasonable? Is it unreasonable, particularly in the American context, to call the standard one uses to assess the soundness of a given tradition “the laws of nature and of nature’s God”? Will there ever be universal agreement about the nature of that standard? Unlikely.

Professor Ryn writes that “Adams’s use of certain phrases”—especially those that might “seem…to indicate a fondness for abstract right”—“has to be determined in context.” He goes on to suggest that “the more [I say] about Adams, the more [I undermine] the notion that Adams was attracted to ahistorical principles.” Unfortunately, Ryn doesn’t specify what evidence or examples he has in mind, or say what, exactly, I am misunderstanding. Perhaps I misread my own evidence. I suspect, however, that the examples Ryn has in mind are those which describe how Adams understood how to apply the rights of men to particular situations. In Adams’s view, principles were not categorical imperatives. They were goods to be secured as best as possible in a given time and place. In other words, “abstract ahistorical ‘principles’” have played an important role in American politics since the founding. The rights of men and the laws of nature and of nature’s God are too important, and too central to the American tradition, to be left to the Jacobins and their descendants.

Finally, Ryn uses the term “ideology” to describe the idea he’s criticizing, although the term and the concept of “ideology” were invented after 1776. Adams thought “ideology” was the best term to describe the lunacy the French Revolutionaries mistakenly called reason: “It is presumed its proper definition is the science of Idiocy.” Unless Prof. Ryn wishes to claim that “ideology” is itself an ahistorical concept, applicable to a particular way of thought applicable in all times and places, the term cannot, by definition, apply to the terms and concepts of 1776. To understand America, we must do our best to understand the principles of the American Revolution as the founders themselves understood them.

For more discussion of John Adams, Edmund Burke, and conservatism, visit our online feature Upon Further Review at www.claremont.org/ufr.

A Villainous Shylock

I am a longstanding fan of the writing of Theodore Dalrymple, but I must contradict the interpretation he presents, in his review of Joseph Epstein’s essays, of Shylock’s Hath not a Jew eyes speech from Shakespeare’s Merchant of Venice (“Sense and Sensibility,” Summer 2014). The impact of the speech is indeed powerful. Nonetheless, though it is not anti-Semitic in the modern meaning of that term, it is far from “proclaiming…the metaphysical unity of mankind,” and, in proclaiming only the physical unity of mankind, it reveals the speaker’s spritiual blindness.

After centuries of discussion about the rights of man and after the catastrophe of the Holocaust, it is understandable that Dalrymple, like John Gross and many others, is moved to find in the pleading of Shakespeare’s Jew a cry for justice and equality. But to read the speech in this way is to lay over it a screen of modern sensibility that masks its actual meaning in the context of the play and of the time in which it was written.

Of course Shylock—complaining of his negative treatment by Christians—believes that treatment to be unjust. But in giving Shylock this eloquent attempt at self-justification, Shakespeare is nonetheless showing his character to be a villain. For in this speech Shylock pleads for recognition of his humanity by appealing only to the lowest qualities shared by human beings. Look at his list: eyes, hands, organs, dimensions, senses, affections, passions, food, wounds, diseases, cold, heat, bleeding, laughing, dying. This list can succeed in persuading only those audiences living in a thoroughly materialistic age. Notice that there is no appeal to any higher ground: caring for friends, worship of God, kindness, mercy, love, sacrifice. Of these—the qualities that Antonio represents in the play—Shylock knows nothing. He pleads for his common humanity on the grounds of man’s lowest nature, whose desires he embodies, while remaining blind to the higher values that actually do bind men together in humane relations.

More importantly, what does Shylock’s speech seek to justify as its conclusion? “Why revenge!” Apart from the complex case of Hamlet, every instance of desire for revenge in Shakespeare is an instance of comical or serious villainy. The one who seeks revenge is always in the wrong, from the as yet unregenerate Kate in Taming of the Shrew to the lying Caliban in The Tempest. Hence Shylock’s justification of revenge only confirms his villainy—that all men bleed is no justification for revenge.

Shylock is no less spiritually benighted for the realistic painting of his character. In demanding the letter of the law and the death of Antonio, in hating music, in wishing his daughter dead at his feet and the ducats in her ear, in claiming the right to revenge, Shylock does not remotely rise to the condition of a pleader for “the metaphysical unity of mankind.” What unifies mankind metaphysically in The Merchant of Venice is only that every human being shares the free will to choose between good and evil.

Gideon Rappaport
San Diego, CA

Theodore Dalrymple replies:

I am grateful to Mr. Rappaport for his thoughtful letter. No interpretation of Shakespeare is final, of course, but I agree with him that Shylock is a villain. I think, however, that the matter is slightly more complex than he allows.

When Shylock says

Fair sir, you spet on me on Wednesday last;
You spurned me such a day; another time
You called me ‘dog’—and for these courtesies
I’ll lend you thus much moneys?

is there anyone who would not think, “He has a point there,” all the more so because Antonio immediately confirms that he did, indeed, spit at him and call him dog, and promises to do so again?

I do not agree that justifying revenge by ill-treatment received is a manifestation of “man’s lowest nature.” It is an appeal to our sense of justice, which is a higher faculty.

It is instructive to compare Shylock’s undoubted malignity with Richard III’s. Richard says:

And therefore, since I cannot prove a lover,
To entertain these fair well-spoken days,
I am determined to prove a villain….

He ascribes his malignity to his deformity; but within a short time he has seduced the widow of the man he has just killed, which demonstrates that, notwithstanding his opening speech, he can prove a lover. Therefore, his malignity is inherent, he is a sport of nature as it were, which Shylock most definitely is not. His villainy is explicable, and in part justified; he is therefore in the same moral universe as everyone else, even if he does behave badly.

There is a perennial human temptation (as we can see from the current activities of ISIS) to treat those of different political or religious persuasions from ourselves as being not fully human and therefore not due any ethical consideration whatsoever. Shylock’s utterances are surely among the most potent protests in the English language, and possibly in any language, against this horrible attitude.