In his worthy analysis of the Bush Doctrine through the eyes of two generations of neoconservatives (“Iraq and the Neoconservatives,” Summer 2007), Charles R. Kesler hits the nail on the head in noting a paradox: the policy’s chief flaw is not “thinking too highly of democracy but not thinking highly enough of it.” Thinking highly enough would force two realizations that demonstrate why the Bush Doctrine became futile as a national security strategy once it was transmogrified into the Democracy Project.

First, the liberties democracy treasures undermine the central security premise of the doctrine. Terrorists thrive in a free society—something hard experience should by now have taught us. The 9/11 attacks may have been conceived in Afghanistan, but they were extensively planned and executed in Hamburg, San Diego, Sarasota, New York, and elsewhere in the democratic West. Witness, too, the accelerating jihadist violence in the United Kingdom and throughout democratic Europe. This doesn’t necessarily mean we should not promote democracy; there are a variety of good reasons to export our values. But in the current environment, where threats come from transnational terror networks which have no territory to defend and cannot be defeated in the traditional military and diplomatic ways, it deeply affects how crucial democracy-promotion is to our security (it’s not), and how much effort and sacrifice should thus be expended on it (not much).

Second, those same liberties, amounting to what Kesler aptly describes as the “high and difficult calling [of] republicanism,” are inimical to the fundamentalist Islamic culture aspired to by Iraq—or, at least, by influential Iraqi leaders cultivated by the administration, such as Ayatollah Ali al-Sistani, Prime Minister Nuri al-Maliki (of the Dawa Party), and Abdul Aziz al-Hakim (leader of the Iran-modeled Supreme Council for the Islamic Revolution in Iraq, which has recently dropped the “Revolution” for cosmetic purposes). The administration misses this because it confounds democracy with popular elections and conflates it with freedom. Elections do not a democracy make. There is an ethos of true democracy that cannot co-exist with Sharia principles—principles so revered in Iraq they were enshrined in the new constitution that the administration helped draft. Moreover, it is presumptuous, to say the least, to assume that once freedom grips the Islamic world, this will translate into democracy as we understand it, thus eradicating jihadism’s root causes. The very concept of freedom in Islamic cultures—i.e., the choice to submit to the will of Allah as expressed in His system, in which mosque and state are not separated—is close to the opposite of what it means to Westerners. Islamic culture is resistant to core democratic values not because it fails to comprehend them but because it doesn’t want them. And it is the unpleasant truth that the tenets on which that resistant culture is based inevitably breed some terrorists.

All of this is most unfortunate because the Bush Doctrine, as the president originally articulated it, sans the Wilsonian gloss, really is the blueprint for suppressing jihadists and their state sponsors.

Andrew C. McCarthy
Foundation for Defense of Democracies
Washington, D.C.

* * *

Charles Kesler brilliantly outlines the gap between the vision of a liberated Iraq launching a wave of democracy throughout the Arab world, and the grim reality. It is not just Iraq that has soured the neoconservative agenda. Freedom’s foray into the Middle East has gone amiss. Lebanon’s fledgling democracy is under sustained assault. And in Palestine, elections briefly gave power to Islamists, before they dragged their society into the brutal abyss of civil war. Few in the West wish to remember it now, but this was Algeria’s condition, too, 15 years ago. In that country, not to mention elsewhere in the region, a strongman’s repression seemed the only bulwark against savage anarchy. Western calls for a return to these old Middle East ways are the kind of political expediency that passes for realism these days, especially when someone else suffers for the sake of our political tranquility. Sadly, today’s self-proclaimed realists forget that 9/11 was a side effect of their strategy.

As Kesler rightly recognizes, two important factors are missing in the Bush Administration’s overall democracy agenda: first, the recognition that civil society is “essential to a healthy democracy,” and second, that there exist “other forms of government between the best and the worst—forms that might be more congenial to many countries capable of something better than tyranny but incapable, at least now, of the best sorts of republicanism.” A regime that would treat its subjects more humanely and would spend its national resources for the benefit of its citizens was not unattainable in Iraq—and it could have served both the national interest and a long-term project of advancing democracy. The mistake was not in believing that democracy could eventually take root in the Arab Middle East—rather it was the expectation that Iraq would achieve in a year what Western democracies attained in decades and centuries. To assume that a healthy civil society would emerge once Saddam was gone was not only naïve. It ignored the lessons of democracy’s third wave, whose successes in Eastern Europe were never matched in Russia. Why would Iraq be different? What hope could there be to find a civil society and a culture of rights where Saddam had taken care to destroy every last semblance of opposition to his rule? Those crucial components, not a constitution and elections, had to be fostered and patiently nurtured until they could stand on their own. It may be too late now.

And yet to assume that our democratic principles do not apply to the Arab world for some cultural or meta-historical reason is to deny the universality of rights that the free world takes for granted, and to concede that culture can permanently override rights we deem innate to human nature itself. It is not excessively idealistic to continue to proclaim our belief in human rights’ universal reach and our patient support for their advance abroad.

Emanuele Ottolenghi
Transatlantic Institute
Brussels, Belgium

Winning the Middle East

In his essay “Winning the War of Ideas” (Summer 2007), Robert Reilly mischaracterizes Radio Sawa, saying it has demoted the war of ideas “to the battle of the bands.” He is correct that Radio Sawa attracts millions of listeners each day by broadcasting the most popular Arabic and Western music. But the article fails to mention that Radio Sawa dedicates an average of seven hours each day (in addition to breaking news coverage) to accurate and objective news and information. Listeners throughout the Middle East tune in to hear the latest news about the Middle East, the U.S., and the world. The network’s newscasts and discussion programs focus on human rights, democracy, freedom of speech, and the rights of women—topics not heard on other radio stations.

Critics act as if it is novel to use music to lure audiences and to fill in the daily radio format. The highly successful use of American jazz on Voice of America (VOA) during the Cold War was instrumental in winning hearts and minds and in cementing friendships overseas. Similarly, Sawa provides listeners access to most popular contemporary music.The feedback from the region is overwhelmingly positive.

The audience may initially tune in for the music, but they stay for the news. VOA continues to use its “music mix” to round out its formats. The alternative is to have “dead air” between news broadcasts; to have numerous repeat broadcasts; or to do all news all the time in vernacular languages, a very expensive undertaking.

Fortunately, Radio Sawa has come up with a winning combination. According to international research firms such as ACNielsen, Ipsos, and others, Radio Sawa’s unique playlist and comprehensive news coverage have an estimated weekly reach of 20 million listeners. These surveys report that nearly 70% of Radio Sawa’s audiences find the station’s news to be credible. By any standard of radio measurement, these are impressive numbers.

Deirdre Kline
Director of Communications
Middle East Broadcasting Networks, Inc.
Alhurra TV / Radio Sawa
Springfield, VA

* * *

Robert Reilly’s essay is well-intentioned but brings starkly into focus the kind of mistakes that prevent people in the West from understanding the threat of radical Islamism.

I will restrict myself to two points. First, he writes that the U.S. must export the universal truths of the Declaration of Independence. Reilly takes for granted that someone from a different religious tradition is going to see life, liberty, and the pursuit of happiness as “God-given inalienable rights.” If you speak with a Muslim about God-given rights, he is going to ask to see the appropriate Koran verses. Islam itself means submission to the will of God—the opposite of liberty. As for the pursuit of happiness, the Ayatollah Khomeini once said memorably that there is no joy in Islam and that the only games permitted are to prepare for war. Even very different clerics don’t talk about Islam as a source of happiness.

Second, Reilly writes:

Radical Islamists reduce God to his omnipotence, concentrating exclusively on His unlimited power, as against His reason. God’s “reasons” are unknowable by man. God rules as He pleases. There is no rational order invested in the universe upon which one can rely, only the second-to-second manifestation of God’s will. This view results in anti-rationalism which, in turn, nourishes irrational behavior.

This is shockingly ignorant about Islam. Whether or not the inner, secret reasons of God are possible to know, the Islamic tradition lays down a complete program of laws—forbidden, permitted, advisable, inadvisable things to do. The idea that Islamists are anarchists who think anyone can interpret God as he wishes is nonsense. They believe there is a rational order, God ordained it, and they know it. They define the other side in anarchical terms because it bases itself on human reason, which they regard as inferior and thus irrational.

Barry Rubin
Global Research in International Affairs (GLORIA) Center
Herzliya, Israel

* * *

I have repeatedly pointed out to Bob Reilly that he is in error quoting my son (as he did again in his recent CRB essay) as saying, “Britney Spears’s ‘music represents the sounds of freedom.'”

Although Reilly is correct in noting that my son is a Naval Academy graduate, he has never been a Britney Spears fan. He certainly has never believed Spears’s music represents the sounds of freedom. His remark was made about American popular music in general and reflects the role this music (including Willis Conover’s classic VOA jazz program) played in the downfall of Communism in Eastern Europe and the former Soviet Union.

Why does Reilly continue to repeat his flawed quotation? I can only assume that he is still bitter over the role I played in his replacement as director of the Voice of America in 2002. This bitterness remains despite the fact that I helped him to get employment in the Defense Department’s policy office, a position that enabled him to retire from the federal government with generous benefits earlier this year.

It is no coincidence that the only communications jobs he has ever held have been at the expense of the federal taxpayer.

Kenneth Y. Tomlinson
Middleburg, VA

Robert R. Reilly replies:

Even if we accept Ms. Kline’s statistics of seven hours of news per day, Radio Sawa would still be pumping out pop music for more than 70% of its broadcast time. If that is not a “battle of the bands,” I don’t know what is. It is hardly a “mischaracterization”of Radio Sawa. Anyway, this is no way to win a war of ideas.

It is no surprise that Radio Sawa has gained large youth audiences by playing pop music in parts of the Middle East, such as in Amman, Jordan, where it has an FM transmitter.As a commercial enterprise, I am sure Sawa would be judged a success, but not in terms of U.S. public diplomacy. As a senior Jordanian journalist, Jamal Nimri, told me: “Radio Sawa is fun, but it’s irrelevant.” Can this be a surprise to any adult? We do not teach civics to American teenagers by asking them to listen to pop music, so why should we expect young Arabs to learn about America or democracy this way?

The purpose of the news in the old VOA days was to hook the listeners so they would listen to the rest of the (non-musical) programming that contained the substance of what we were trying to communicate. Listeners tuned in for the news and stayed for the rest. Now, as Kline informs us,they tune in for the music and stay for the news. As an advertiser might say,they kept the sizzle but forgot the steak. News by itself was never considered the be-all and end-all that it has now become.

As for Mr. Rubin’s comments, because Islam does not contain the teaching that all men are created equal, I would hardly think it is naturally receptive to the notion of God-given inalienable rights. As for his second point, I suggest he revisit the 9th-century suppression of the rationalist Mu’tazilites by Abbasid caliph Mutawakkil, and then re-read al-Ghazali, whose works were the bedside reading of Hasan al-Banna, founder of the Muslim Brotherhood. Al-Ghazali’s embrace of irrationality, along with the denial of causality and thus, necessarily, of secondary causes (laws of nature), has its roots in a theology that holds God to be pure will, unconstrained by reason. God is not only above reason; he is without it. In this view, there may be an order in the universe but it is certainly not “rational.” (At the same time, Rubin seems to be saying that Islamists think human reason is irrational. How then can they know, as he suggests they do, that “there is a rational order”?)

Islam is a religion of laws. I see no contradiction between a god of pure will and his laying down a lot of rules. Pure will gets to do anything it wants to, even if inconsistent. But what is the status of those laws in their relationship to reason? As the chief ideologue of radical Islamism, Sayyid Qutb, observed, “Every time the Qur’an states a definite promise or constant law, it follows it with a statement implying that the Divine will is free of all limitations and restrictions, even those based on a promise from Allah or a law of His. For His will is absolute beyond any promise or law.” In other words, arbitrary.
Rubin is right in saying that radical Islamists do not think that just “anyone” can interpret the Koran, but he fails to point out that they think only they are given that privilege in an exercise of ijtihad (effort), with which they sweep aside generations of tradition and Islamic jurisprudence that speak against their novel program of suicide bombings and slaughter of civilians. In that sense, they are anarchists. The theology of their anarchism is contained in Abdullah Azzam’s statement that “terrorism is an obligation in Allah’s religion.”

With respect to Mr. Tomlinson’s accusation, it is not I but Tomlinson himself who is the source for the quotation from his son. Here is the original NewsMax report by journalist Wes Vernon:

“You know, Britney Spears does the lead commercials for Pepsi,” the BBG chairman told NewsMax.com. “She’s very mainstream. Now I don’t claim to be an authority on this music. But I do know this thing has been a real success.”

Tomlinson quotes his son, a graduate of the Naval Academy at Annapolis, saying, “‘Tell the oldsters to chill out because her music [Britney Spears’s] represents the sounds of freedom.'”

When Tomlinson first disputed this quotation, I did what he should have done and checked with the source,Wes Vernon.

Vernon wrote me that Tomlinson had indeed quoted his son in this way: “I stand by that quote. It was accurate.” Though I suggested he do so, Tomlinson for some reason has failed to contact the author to try to correct this story, letting it stand as a matter of record. Perhaps that is just as well because Vernon informed me:”With Tomlinson’s permission, I recorded the interview.”

American Patriotism

I am delighted, genuinely delighted, to read a calm, thoughtful, indeed most generous review of my book The Intellectuals and the Flag written by a conservative (“A Left-Handed Salute,” Summer 2007). In the past 20 years or so I have become accustomed to ill-informed, dismissive abuse in the Wall Street Journal, the Weekly Standard, and Commentary—castings of anathema (he is still a leftist!) rather than serious appraisals of my work. By vivid contrast, Wilfred McClay takes the trouble to read my book, indeed, to read it thoroughly and sensitively, and for this alone I am grateful.

This said, I hope it is not caddish to respond briefly to his criticisms. First (and I oversimplify his point, to save space), he charges that my “view of American history is so bleak…and [my] contempt for the shallowness of American patriotism at present is so deep, that there hardly seems to be anything worthy of one’s sacrifice.” To this I would reply that I am generally enamored of the Revolutionists, Lincoln, the Progressives, and the New Deal, the expansion of the franchise and equal rights, and the movements of the ’60s, to mention only some high points, and if I have scanted these (and others) in the essay that gives this little volume its title, sooner than excavate phrases and sentences that rebut his point, I would prefer to say that I hope to be mindful of the need not to be churlish toward a history that has occasioned the sacrifice of so many.

Second, my metaphoric tribute to those who fought the hijackers of Flight 93 means only, in a manner perhaps extravagant, to distinguish symbolic affirmations of patriotism from the actual, active thing. McClay is probably right that I lean rather too heavily on the example. And he is right that readiness to sacrifice is the decisive criterion.

Finally, he maintains that my diatribes against George W. Bush are “poisonous and quite unhinged.” I disagree. To me, the character of the president, the damage he has done to (what passes for) patriotic virtue, and the dangerous willingness of the conservative movement to promote him and his policies against the calls of reason, are part of the central political problem of the last decade, which, by the way, I consider in my forthcoming book, The Bulldozer and the Big Tent. On the question of the president’s nature,I hope to persuade Professor McClay to change his mind.

Todd Gitlin
Columbia University
New York, NY

Wilfred M. McClay replies:

I greatly appreciate Todd Gitlin’s letter, and, at the risk of seeming too irenic, and failing thereby to uphold my assigned role in the culture wars, I think his first two points are well taken. I hope it is not caddish of me, though, to wish that his list of admirables in American history was a bit longer, and included some of the non-political people and institutions that have made this country such a wellspring of inventiveness and economic dynamism, the place where so much of the rest of the world wants to be. Most Americans don’t connect their patriotism with politics, and indeed, this fact is reflected in their distaste for naked partisanship of any sort, and their instinct that, for the most part, religion and politics are the two subjects they’d rather not hear discussed in public—even if Gitlin and I both would sometimes wish it otherwise, on both counts.

On President Bush, however, I hold my ground. Not that I think Gitlin’s book was exceptionally bad in this regard. Not at all, and I raised the issue only because the rest of his book was so admirably independent-minded, and made such good points about the loss of civility and productive debate in our public life. And there were excellent parts of the book that I could not discuss in the review, such as a terrific essay on David Riesman, someone whom both Gitlin and I admire. The parts on the president were a striking departure. I do not think Bush’s administration is above criticism. But I do not recognize it, or him, in Gitlin’s description.

It is worth pointing out, too, that many of the most trenchant criticisms of the Bush Administration have come from the right, as the recent debate over immigration reform showed vividly, and as a reading of conservative blogs and journals (including the Claremont Review of Books) would show. The president has never gotten a free pass from conservatives, and he has repeatedly made it clear to them that he is not “their” guy, just as he did in the immigration bill. Not that it did him any good, and not that liberals gave him any credit for the generosity (wrongheaded, in my view) that he showed in supporting and pushing the bill, in spite of the fierce opposition of his own “base.”

In any event, I’ll read with great interest Gitlin’s forthcoming book, as I do everything he writes. But I strongly suspect I’ll disagree.

Creed and Culture

Only a scarred veteran of the immigration wars can appreciate the many subtle ways in which Brian Kennedy’s editorial (“Making Americans,” Summer 2007) was excellent. Of course, he is absolutely right to say that immigrants (albeit, as he notes, “in manageable quantities”) can be assimilated, but only if American institutions are rescued from multiculturalism and returned to an affirmation of the American creed.

But he’s wrong, alas, to say that “if we cannot get this right, the rest won’t matter.” There are nations that have survived the complete repression of any type of national “creed,” for example the Baltic Republics or Catalonia, where even the national language was under official attack. Conversely, the importation of liberal ideology and institutions has frequently failed, for example in Mexico or in the former British colonies of Africa.

The truth is that nations are ethno-cultural entities. Culture matters, which is why Kennedy’s emphasis on the American creed is valid. But ethnicity seems to matter also, in ways that are not well understood. Perhaps it’s a question of culture in a deeper sense than ideology. Whatever it is, it means that there is a point at which a critical mass of sufficiently diverse immigrants will prove more than even the most America-affirming institutions will find “manageable.”

Peter Brimelow
VDARE.com
Washington, CT

Brian T. Kennedy replies:

Peter Brimelow has fought many battles on the immigration front and one has to admire his dedication to trying to get the argument right. When I said that it was important for new immigrants to adopt the American Creed—the self-evident truths of the Declaration of Independence—I was pointing to that one common set of principles that can bind us as a people. There may well be ethnic and cultural differences among us. But the American success story is about overcoming these differences by means of these principles. They are what set us apart from the other examples Mr. Brimelow mentions.

I am always curious about the arguments centering on culture. Do proponents mean here that certain ethnic groups cannot be good citizens? I hope not. If they mean that certain cultures are problematic when it comes to assimilation, I couldn’t agree more. These problematic cultures reject America’s first principles. Here radical Islam comes to mind since, on its face, it rejects both the principle of human equality and our belief in religious freedom.

Of course Muslims can be good Americans. But they must also reject Islamic jihad and the subjugation and killing of the infidel if they are to be fellow citizens. Absent this we have to doubt, to put it mildly, a Muslim’s ability to become an American faithful to our principles. This assimilation problem is well advanced in Western Europe where there are no first principles. The European problem of Islamic immigration and assimilation will be difficult, if not impossible, to solve. But arguments of culture, to the extent that they are crude racial or ethnic markers, should hold little sway in American political life.

Copyright Law

Mark Helprin deserves credit for pushing back against the sentiments of many of my academic colleagues—and file-sharing students—who want to abolish copyright (“Inequity,” Summer 2007). That said, I fear that by arguing that the length for copyrights should be extended indefinitely, he pushes too hard in the opposite direction.

His main argument for an indefinite copyright is that because the law doesn’t term-limit ownership of land, chattels, or money, it shouldn’t term-limit copyrights either. But not all tangible property laws work as Helprin assumes, and the exceptions are revealing. In the 19th century, governments encouraged bridge-building by giving the builder an exclusive but temporary monopoly over river crossings. Modern law typically gets at the same problem by imposing common-carrier duties on utilities—that is, by making utilities’ property rights permanent but not exclusive. Is it better to treat copyrights like land and money, or like bridges and utilities?

Helprin doesn’t frame the stakes this way because he thinks the question is simply whether royalties should go to the artist’s estate (if the copyright is infinite) or to publishers (if it’s not). This view makes sense if perpetual royalties don’t shrink opportunities for future artists or choke up the store of common knowledge. Whether or not they do is an empirical question, and one that is extremely hard to answer. But when he assumes perpetual royalties don’t restrict future opportunity, Helprin assumes that economic life is extremely static. Until fairly recently, American copyright law viewed economic life far more dynamically—because it was written to secure the natural right to labor as understood by the Constitution’s framers.

Helprin dismisses the framers’ assumptions and laws because, he says, they couldn’t anticipate the knowledge-oriented economy we enjoy today. This is a little ungrateful, for our economy was shaped in large part by laws and policies the framers made to secure the natural right to labor. They appreciated that intellectual property highlights the transformative power of human labor more effectively than any other species of property. They learned from Blackstone that “the right, which an author may be supposed to have in his own literary compositions” is a “species of property,” because it is “grounded on labor and invention.”

Adapting Locke loosely, every time one artist makes a new work, the law should assume that ninety-nine artists are waiting in the wings to make something even better. The first artist deserves a copyright to reward his talent and labor, but afterward he should not be able to slow the ninety-nine.

Eric Claeys
George Mason University
School of Law
Arlington, VA

* * *

Mark Helprin is in fast company arguing that intellectual property, and literary property in particular, should be liberated from the law of copyright and treated just (or more) like real or personal property (yours in perpetuity). Samuel Clemens made the same case to Congress early in the last century. Unhappily for Helprin, the problems with the position are even greater today than when “Twain” took it.

First, pace Helprin, there is the common (and sound) intuition that a published poem is a different kind of thing from a house or bearer bond, and that the different forms that “property” takes properly receive different treatment in law.

Second, the copyright clause is an enumerated (and therefore circumscribed) congressional power to create exclusive right in published literary productions for limited periods of time. To suggest, as Helprin does, that right-thinking congressional majorities could take “limited” to authorize “infinite” is interpretive casuistry.

Finally (and this is why Helprin has a harder row to hoe than Clemens), it is generally assumed today that copyright is freighted with First Amendment significance—that there is an interest of constitutional dimension in arrangements of words and images passing, at some point, into the public domain. The locus classicus of this argument is in the writings of Stanford Law School professor Lawrence Lessig, and in his brief to the Supreme Court in Eldred v. Ashcroft (2003). Now it is true that a majority in that case upheld the more or less outrageous “Sonny Bono” Copyright Term Extension Act of 1998, and declined to craft a rule as to when (as Justice Breyer put it in dissent) “a copyright statute seriously, and unjustifiably, restricts the dissemination of speech.” But should Congress be persuaded to engage in the kind of copyright adventurism Helprin advocates, there is little doubt that the Court would bring down the First Amendment hammer.

Helprin is aware of the free speech problem, and tries to escape it by asserting a radical distinction (or disjunction) between “ideas,” which should be freely accessible to all, and “art” (a particular arrangement of words, images, or sounds) that should remain under the control of the composer. This won’t do at all. “Ideas” often inhere precisely in the arrangement of symbols used to express them, and contemporary copyright law is notoriously used by owners to protect “concepts” (i.e., ideas) from unauthorized use by others. “Ideas” and “art” are inextricably intertwined, and in an era when one restaurateur sues another for serving a Caesar salad too like her own, the First Amendment issues can’t be made to go away.

Richard E. Morgan
Bowdoin College
Brunswick, ME

Mark Helprin replies:

Contrary to what these two letters assert, I made very clear in my article that ideas are not subject to copyright. Nor, anywhere, did I endorse perpetual copyright, even if three-quarters of a million postings on the internet say that I did. As an originalist, I accept the Constitution’s language and intent, the one crystal clear and the other evidenced in the historical record, both of which clearly rule out perpetuity. I stated this not just once but twice.

I don’t know how this could have been misunderstood, unless one reads my further comment that “The genius of the framers in stating this provision is that it allows for infinite adjustment,” as calling for an infinite term. Limited and infinite cannot co-exist as one. Infinite adjustment does not mean infinite extension. That your Barcalounger may be infinitely adjustable does not mean it will take you into other universes. Nor is my wish that Congress extend copyright term “as far as it can throw” a desire for perpetuity, unless we are talking about a different Congress than the one that the last time it extended as far as it could throw nearly broke its head in adding 20 years.

Nor did I write about patents, a completely different animal, although that 20 years is the optimal term is by no means a divine truth. But rather than setting aside arguments that do not apply, better to engage those that do, which are not only the heart of the two letters above but their vulnerable points of collapse. They are Professor Morgan’s assertions that “‘Ideas’ and ‘art’ are inextricably intertwined,” and “contemporary copyright law is notoriously used by owners to protect ‘concepts’ (i.e., ideas) from unauthorized use by others.” And Professor Claeys’s statement that “every time one artist makes a new work, the law should assume that ninety-nine artists are waiting in the wings to make something even better. The first artist…should not be able to slow the ninety-nine.”

To quote § 102 (b) of Title 17 of the United States Code, “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

That’s the law, but even clearer are the facts that exist independently of the law, namely that concepts and ideas have not been repressed or stunted by copyright, and certainly not by the recent extension of copyright. Where is an example of this? How many books have been written about Pearl Harbor, the Constitution, Shakespeare, racism, education, particle physics, surprise attack, or veal cookery? Is the suggestion that once one is written and copyrighted the field of maneuver for pertinent concepts, ideas, principles, etc., is somehow locked up? Not according to the law and not according to the obvious facts.

Perhaps misconception in this regard stems from the notion that “‘Ideas’ and ‘art’ are inextricably intertwined.” If they are intertwined, it means that they are two different things, as one thing cannot be intertwined with itself. And of course, because they are different, we have a word for each. Copyright applies clearly and forcefully (see above) to one, and not to the other.

Where does Prof. Claeys get the idea that copyright is a drag on artistic production, or any production? Is he suggesting that Pasternak could not write because Yeats had beaten him to the punch, that Tolstoy didn’t write War and Peace because Moby Dick was copyrighted? I have published 600 books, articles, short stories, essays, newspaper pieces, and the like. Not once in the 47 years in which I have been engaged in this have I even given a thought to someone else’s copyright except when quoting a song. Does anyone actually imagine that literary work is like assembling Legos, piling one modularized thing upon another? It isn’t. Perhaps the cut-and-paste generations see it that way, for which they should be rigorously held to account by—what else?—copyright law.

And what if there were no copyright? This would not encourage literary fecundity, it would retard it. Because Batman may be copyrighted, it means that you can’t write it again, or Batman II, Batman III, Batman IV, The Return of Batman, Batman’s Brother, Batman’s Sister, etc. You are forced instead to do what the letter-writer suggests you are prevented from doing—”making something even better,” in this case something else. This is precisely what is done so much that even after hundreds of years of copyright and a decade of the “outrageous” Sonny Bono Act, we are afloat in the richest sea of information and publication that mankind has ever known. There is so much of it, and it grows so fast, that the institutions that are tasked with keeping track of it cannot keep up. This publication itself is one of (and, naturally, the best of) tens of thousands of mechanisms by which one attempts to float upon the sea of publications and information.

And upon this deep and swelling main are a tribe of people who are convinced that because of the repressive and strangulatory effects of copyright they are in a desert. Their boats are wondrous strange.

Democratic Republicanism

Needless to say, I am grateful to Randy Barnett for his very kind words about my book Our Undemocratic Constitution (“Constitutional Conventions,” Summer 2007). Much, of course, could be said about his various criticisms that accompanied his kind words, but I want to concentrate on only one of them. He chastises me for apparently privileging a “democratic” Constitution over the distinctly “republican” Constitution actually drafted by the framers. After all, Article IV guarantees to all states an explicitly “Republican [and not Democratic] Form of Government.” At the very least, this presumably means no hereditary monarchs and a commitment to government by elected representatives instead of “direct” rule by the people (such as through initiative and referendum).

But, of course, older theories of republican government included a variety of distinctly more controversial propositions, including the inability of anyone without sufficient property to participate in government, even as a voter; not to mention, in certain theories of republicanism, the defense of slave labor as a way of providing necessary leisure for the quite literal ruling class. Or consider John Adams’s statement that republican government requires that “public Passion must be Superior to all private Passions. Men must be ready, they must pride themselves, and be happy to sacrifice their private Pleasures, Passions, and Interests, nay their private Friendships and dearest connections, when they Stand in Competition with the Rights of society.” Benjamin Rush once wrote of the duty of schools to create “Republican machines.”

I have no doubt at all that Professor Barnett, a noted libertarian, has no tolerance for slavery, and I doubt that he would endorse the restrictions on suffrage that were present at the time of the founding, whether based on property, gender, religion, or race. I also doubt that he would endorse the republicanism defined by Adams and Rush.

What counts as “republican” or “democratic” government is what political theorists call an “essentially contested concept.” One concept of democratic government, to be sure, is unconstrained majoritarianism, which Barnett rightly criticizes. Perhaps I should have titled my book Our Too Undemocratic Constitution, in order to acknowledge that I myself would endorse deviations from pure majoritarianism. But I continue to wonder how many of the Constitution’s undemocratic features really capture Prof. Barnett’s affections. Take a relatively minor example that could, nonetheless, provoke a decidedly major constitutional crisis, given the “right” conditions: should there be a deadlock in the electoral college, the president would be chosen by the House of Representatives on a one-state/one-vote basis, with Vermont’s single representative having the same power as California’s 53 representatives. I have yet to find any defenders of the electoral college who are willing to defend this peculiar feature of the system. And, of course, the book presents many other examples of what I believe are unjustifiable deviations from the country’s basic commitment to what might be called “democratic republicanism.”

Sanford Levinson
The University of Texas
School of Law
Austin, TX

The Truth about Leo Strauss

In addition to thanking those who wrote letters defending our book, The Truth about Leo Strauss, from the criticism aimed at it by the CRB‘s reviewer (Correspondence, Summer 2007), we wish to comment briefly on one set of remarks in his reply to the letter writers. For the record, we, along with the letter writers, believe that he seriously misrepresented our argument. He completely missed our purpose in the book, and in doing so revealed little understanding of the problem of philosophy and the city.

But we pass over these larger and ultimately more important issues to address his charge that there were “serious lapses from the minimal demands of academic precision.” He refers first to an example he used in his original review, the details of which we cannot repeat here, but urge the reader to consult (“Guide for the Perplexed,” Spring 2007). The “serious lapses” to which he refers were two errors—lapses if you will—in proofreading. In one case an ellipsis was omitted; in the other, a set of brackets. In one case we omitted something; in the other we added something for emphasis and point. (In a second printing we, of course, will correct these and other typographical errors.) Contrary to the reviewer’s insinuations, we believe that a fair-minded, less angry reading of the passages in question, in the context of the texts they were discussing, will show that nothing was distorted as a result of these typographical errors.

We are also taken to task for “attributing to Strauss, without evidence, an absurd statement that he was supposed to invoke frequently.” The reviewer may consider the saying to be “absurd,” but it is something we heard Strauss say in class on more than one occasion.

Catherine H. Zuckert
Michael P. Zuckert
University of Notre Dame
Notre Dame, IL

Steven J. Lenzner replies:

My criticism of the Zuckerts’ manner of quoting was not (as their letter appears to suggest) stylistic but substantive. I objected to their employing tendentious half-quotations that serve to transform Strauss into someone more interested in championing causes than in understanding them.

With regard to Strauss’s “often stated” claim that as an émigré he was not qualified to speak on American politics, I was not unaware of the possibility that he may at times have said this in class or elsewhere. I merely regard it as impossible that he made such a statement seriously. In his essay “On Classical Political Philosophy” and elsewhere, Strauss emphasized the “transferable” character of political knowledge:

While all political life is essentially the political life of this or that community, “political science,” which essentially belongs to political life, is essentially “transferable” from one community to any other. A man like Themistocles was admired and listened to not only in Athens, but, after he had to flee from Athens, among the barbarians as well; such a man is admired because he is capable of giving sound political advice wherever he goes.

Strauss spent an academic year in Israel, and those months enabled him to describe that country’s character in a very public and political letter: “I taught at the Hebrew University in Jerusalem for the whole academic year of 1954-1955, and what I am going to say is based exclusively on what I have seen with my own eyes.” What then of the more than 20 years of his firsthand observations in the United States? The Zuckerts must find all the more puzzling the confidence with which Strauss commented on political life in, e.g., Athens, Sparta, Rome, and Florence.

Finally, let me emphasize that my chief objection to the Zuckerts’ book has nothing to do with their scholarly lapses, except insofar as these point to the attitude with which they undertook their task. In adopting the dubious cause of making Strauss’s thought politically innocuous, the Zuckerts come perilously close to doing the impossible—robbing that thought of its charm.

Correction: The date given in Angelo M. Codevilla’s “Intelligence Failures” (Summer 2007) on which Colin Powell spoke to the United Nations should have been February 5, 2003.