BOOK…

                                                                BOOK REVIEWS

Never a Matter of Indifference: Sustaining Virtue in a
Free Republic
Edited by Peter Berkowitz
Stanford, Calif.: Hoover Institution Press, 2003
   What kind of citizens are necessary to sustain a republic based on
individual liberty and limited government? And is such a republic likely
to nurture such citizens and thereby preserve itself?
   Thinkers in a long tradition have argued that public liberty rests on the
maintenance of civic virtue--that the freedom of a polity, state, or coun-
try is a matter of self-government, and that such self-government is best
understood in terms of the self-control exercised by individual persons. If
that is so, it may be that the only way to maintain liberty in a state is for
the state to exercise its power to restrain the impulses of the persons who
make up the state. As Quentin Skinner (1998: 33) described that view, "if
civic virtue is to be encouraged (and public liberty thereby upheld), there
will have to be laws designed to coerce the people out of their natural but
self-defeating tendency to undermine the conditions necessary for sus-
taining their own liberty." If that is true, then public liberty can only be
sustained by deliberately inculcating self-control through the exercise of
coercive power.
   In contrast, advocates of liberal republicanism have seen the good of
public liberty as James Madison did, when he proposed that the Consti-
tution be amended as follows:
      That there be prefixed to the Constitution a declaration, that all power
      is originally vested in, and consequently derived from, the people.
      That Government is instituted and ought to be exercised for the benefit
      of the people; which consists in the enjoyment of life and liberty, with
      the right of acquiring and using property, and generally of pursuing and
      obtaining happiness and safety [Madison (1789) 1981: 164].
   If the public good is defined as the enjoyment of life and liberty, that
would tend to rule out coercive state measures to produce the public
good, for such coercion would be incompatible with the nature of the
public good itself. There would have to be, then, some other means to
generate the virtues necessary to sustain a commitment to the public
good--that is, the very liberal republican order that makes possible the
enjoyment of life and liberty.
   Liberal republicans have looked to the resources of free societies and
studied how they generate self-reinforcing virtues. Liberals have argued
that personal responsibility tends to produce sobriety, probity, punctu-
ality, and other virtues conducive to the production of wealth and social
progress. The harder question for modern advocates of liberal republi-
canism, however, is whether free societies can generate sufficient passion
on the part of a sufficient portion of the public to maintain limited
government and the rule of law (i.e., the public good). If not, liberal
republics will decay, for there is no dearth of private interests that are at va-
riance with the public good. As Adam Smith ([1776] 1976: 145) pointed out,

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      People of the same trade seldom meet together, even for merriment
      and diversion, but the conversation ends in a conspiracy against the
      public, or in some contrivance to raise prices. It is impossible indeed to
      prevent such meetings, by any law which either could be executed, or
      would be consistent with liberty and justice. But though the law cannot
      hinder people of the same trade from sometimes assembling together,
      it ought to do nothing to facilitate such assemblies; much less to render
      them necessary.
   Given the ubiquity of such private interests contrary to the public
interest and the willingness of persons to use the state for rent seeking,
liberals must address the problem of how to generate countervailing
interests in or attachments to the public good sufficient to overcome
those private interests that undermine it.
   Peter Berkowitz of George Mason University Law School has as-
sembled an interesting mixture of what one would generally call "con-
servative" approaches to such questions. The quality of the contributions
varies, but all at least pose interesting problems. Besides varying in qual-
ity, the essays lack a clear thematic connection, so it's harder to examine
the collection as a whole. Accordingly, I've opted to examine each essay
separately.
   In the first essay of the collection, the justly venerated Harvard politi-
cal theorist Harvey Mansfield offers what my tutors in college used to call
"an exercise in the liberal arts" in his essay on "Liberty and Virtue in the
American Founding." Mansfield elegantly examines the kinds of private
virtue that the new social order in America was generating alongside the
public virtues that were set forth in The Federalist and institutionalized
in the new Constitution. He mines Benjamin Franklin's Autobiography
for the emerging virtues of the new commercial--bourgeois--society
(offering some interesting remarks on Montesquieu, as well), and con-
trasts those with the virtues of Aristotle:
      If we compare Franklin's list with the eleven virtues that Aristotle
      discusses in his Ethics, we see that Franklin has omitted courage, am-
      bition, generosity, magnificence, magnanimity (Aristotle's magnani-
      mous man, possessed of all the virtues and aware of it, would not keep
      a little book in which to write down his faults), friendliness, and wit.
      These are the virtues of nobility (except for friendliness and wit, virtues
      of sociability for its own sake rather than for utility), virtues that are out
      of the ordinary. To Aristotle's list Franklin adds virtues that are instru-
      mental, such as order and cleanliness, that are beneath Aristotle's moral
      virtues [p. 14].
   Franklin's list of virtues is homey and geared to the self-improvement
of a citizen of a republic of equals. Mansfield finds in The Federalist a
new republican conception of virtue that is rather different. Whereas
Franklin had left ambition out of his list of virtues, Publius (the pseud-
onym for Hamilton, Madison, and Jay) brings it back in, but "Publius
differs from Aristotle, however, in connecting ambition to interest rather
than calling it a virtue" (p. 18). Ambition is made to counteract ambition
in the interest of preserving liberty.

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   Mansfield also finds "energy" in The Federalist as a virtue of the
executive branch, not "a committee chosen by the states, as in the Ar-
ticles of Confederation, but a single person elected directly by the
people" (p. 21). (Mansfield is a bit off here, as the executive is elected by
the members of the Electoral College, the choice of whose members is
not itself a matter of direct election by the people. Article II, Section 1
states that "Each state shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors.") As Mansfield sees the mat-
ter, "Franklin gives us the virtues enabling us to live in a free society;
Publius gives us the virtues for governing it" (p. 24).
   The essay--thought provoking and elegant throughout--ends with a
fairly cryptic remark: "The lesson overall is that moral philosophy is
incomplete without political philosophy" (p. 28). The overall implications
of Mansfield's essay for the maintenance of a liberal republic are not
clear to me, but the essay was enjoyable for its own sake.
   After that delightful essay, so well grounded in a careful reading of
important texts, we come to a provocative but entirely speculative essay
by Stanley Kurtz on "Culture and Values in the 1960s." Kurtz seems
to be trying to explain what he thinks has gone wrong with America, but
he doesn't offer us a clear statement of what the problem is to which
he offers his highly conjectural diagnosis. In any case, he offers a pro-
vocative set of claims (without offering much evidence) to the effect
that after the 1960s Americans sought relief from the anomie of mod-
ern suburban life in a shared commitment to "left liberalism," with em-
phasis on common identification with oppressed groups. The governing
metaphor, as Kurtz sees it, is the holocaust. That theme is then applied,
quite implausibly, to eco-terrorists (a problem that Kurtz says has "pro-
liferated," although if so it doesn't seem to have proliferated all that
much). He makes much of an alleged Lawn Liberation Front (LLF)
campaign that warned homeowners in a Pittsburgh suburb that spikes
had been driven into lawns to stop lawn mowing, for "Grass is a liv-
ing entity that deserves as much respect as humans" (p. 40). Rath-
er than seeing that as an absurd, silly, and marginal case, Kurtz sees
it as emblematic of a very deep problem. Maybe, but I'm not con-
vinced.
   Kurtz invokes Durkheim and demonstrates that he knows a bit
about Durkheim's thought and life, but how that tells us much about the
development or decline of virtue in modern society is unclear. Kurtz
focuses mainly on the impact of intellectuals as they react to events such
as growing suburbanization; major events that arguably had a greater
impact on the counter culture are not mentioned, conscription and the
Vietnam war notable among them. The narrative proceeds without any
supporting evidence and smacks of Hegelianism on the cheap; many of
the events to which he alludes were contingent, rather than necessary,
but they all take their place in an inevitable movement to replace re-
vealed religion with a secular religion based on expressions of solidarity
with struggling and oppressed groups. Again, maybe.

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   Kurtz's essay is full of assertions to which a reasonable response is,
"Well, could be, but how could one know that?" By the end of it, I found
Kurtz's account to be lacking in useful content. Unlike Mansfield's essay,
however, it is decidedly uncharming and offers no insights into interest-
ing or important works of political thought. It concludes with a prophecy
of "a long and inconclusive culture war" (p. 55). That's the sort of proph-
ecy, which, like the whole essay, seems incapable of being checked
against any evidence, especially since the alleged war will be both "long"
and "inconclusive."
   The essay by David Davenport and Hanna Skandera on "Civic Asso-
ciations" takes us from mere speculation to a model that can be checked
against evidence. Davenport and Skandera address the claims of some
social scientists, notably Robert Putnam (2000), that there has been a
decline in civic association in the United States. They argue that the
character of civic association has changed in recent decades in the United
States as a result of changes in public policy, primarily federal funding
opportunities and federal regulation of membership. The former has
"encouraged the growth of national advocacy organizations that, in turn,
pressed for more funding of nonprofit service agencies" (p. 67) and the
latter has meant that "rather than allowing for a diversity of different
kinds of associations--or educational institutions, for example--govern-
ment seeks to require a diversity of members within each individual
association" (p. 73). In both cases, the legislative history is described
and linked causally with changes in civic associations. The treatment
would have benefited greatly from a look into the detailed research of
David Beito (2000). Davenport and Skandera conclude by examining
some new "models" of civic association and offer a moderately hopeful
prognosis for a new awakening of civic association.
   In his essay on "Schooling," Chester E. Finn, Jr. offers his thoughts on
the role of schools in producing good citizens, the kind who can sustain
republican liberty, and finds, unsurprisingly, that government schools
don't seem to do a very good job of it, certainly in comparison with
non-governmental schools. The reasons why, however, did not seem as
well developed as one might hope from a distinguished educational
scholar. For example, Finn is very concerned about the proliferation of
"post-modern relativism and multiculturalism," and asks (p. 98):
      If scholars, teachers, and those who train them abjure fixed distinctions
      between right and wrong, if all judgments are said to depend on one's
      unique perspective or background rather than universal standards of
      truth, beauty, or virtue, if every form of family, society, and polity is
      deemed equal to all other forms, and if every group's mores and values
      must be taught (along with its culture, its food, its music, its history, and
      so on), who is there (in school) to help children determine what it
      means to be an American, how to behave, and what to believe?"

  I fear that Finn has exaggerated the importance of teachers; after all,
college graduates have gone through four years of unremitting leftist

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propaganda and about half of them come out seemingly unaffected.
Nonetheless, without going as far as Finn in deprecating postmodern
philosophy, it seems reasonable to wonder whether setting up unreflec-
tive relativism as a standard of moral evaluation is such a good thing. It
seems that most students and parents, when given a choice, prefer (at
least at the elementary and high school level) schools that attempt to
include substantive concern for virtue and an ability to differentiate right
from wrong. Accordingly, Finn endorses school choice and addresses a
number of popular objections to such measures, such as the "balkaniza-
tion" objection, the "establishment of religion" objection (neatly dealt
with by the Supreme Court's 2002 decision in the Zelman case), and so
forth. Finn deals with the objections and the evidence judiciously and
makes a more-than-merely-plausible case that the civic virtues necessary
to sustain liberty are more likely to come out of schools subject to com-
petition than out of non-competitive government monopoly schools.
   The last essay in the book, "Marriage and Family," is by law professor
Douglas W. Kmiec. Surely the family is an important incubator of civic
virtue, although Kmiec doesn't tell us how (or even make much of an
allusion to that theme). Kmiec's interesting essay starts with what struck
me as a fundamental error: he describes marriage as an example of the
"submission of individual freedom" (p. 114), rather than as an example of
the exercise of freedom. Marriages that are arranged and compulsory
would indeed be examples of a loss of freedom, but marriages that are
chosen seem no more a submission of individual freedom than any other
binding choice. Nonetheless, one can overlook that problem and still find
much of interest in Kmiec's contribution.
   Kmiec contrasts two allegedly exclusive models of marriage, "mutually
covenantal or contractually individualist" (p. 116). The former is allegedly
authored by God and is indissoluble; the latter sees marriage as "a means
to individual economic and social fulfillment, not a Divinely-ordained
end" (p. 118). Kmiec asserts that sexual relations in a "mutually covenan-
tal" marriage are about having babies, although he fudges that claim by
some rather sloppy language: "sexual intercourse is not just for individual
pleasure," which he follows with a quotation from Janet E. Smith, who
tells us that sex has "the purpose of bringing forth new lives and the
purpose of uniting men and women together" (p. 117). So sex is for
pleasure, but not just for pleasure, with the implication (not spelled out)
that if it is for pleasure but doesn't bring forth new lives, it's a bad thing.
The claims are not well supported and offer a bit of theology dressed up
as social theory. Kmiec tries to tie those claims in to social science when
he asserts, without evidence, that increasing divorce, illegitimate birth,
and other phenomena are caused by a societal shift toward the "contrac-
tually individualist" model. Maybe, but where's the evidence? It's hard to
blame out-of-wedlock births, for example, on a change in the conception
of marriage, since the conception in question took place outside of mar-
riage.

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   Kmiec tells us that school textbooks are partly to blame, since the
examples he cites describe marriage in seemingly casual terms. (But how
many kids really take boring and tedious school textbooks on marriage
seriously? I suspect that, although the examples Kmiec cites are strange
enough, they have had virtually zero influence on marital patterns, in
comparison to such factors as increasing female workforce participation,
welfare policies, birth control, and the like.) He seems on firmer ground
when he describes changes in state marital laws that have made divorce
somewhat easier and also less burdensome on women, who in the past
tended to be harmed by property divisions, since they had invested in the
human capital of husbands. Kmiec follows that with some of his thoughts
on the impact of female workforce participation, the effect of work on
family life, the employment of nannies, patterns of neighborhood devel-
opment (with some interesting remarks on zoning), and so on. Much of
it was suggestive, but it seemed a rather strained piling up of alleged
threats to the family and marriage, without much attention to how im-
portant they actually are. I really doubt that very many married couples
see their homes and lives together as "a place to park the car when not
at work" (p. 136).
   Kmiec concludes with a list of legal reforms, some of which seem
reasonable from the perspective of liberal republicanism (such as allow-
ing people to choose--as they can in Louisiana--a "covenantal mar-
riage," which is harder to dissolve), and some not, such as intervention
into labor markets to create a "family wage" (p. 145). Kmiec has provided
us with a list of possible reforms of the law, but few of them are par-
ticularly compelling. Many of the proposals and the claims behind them
deserve more careful examination, after which I suspect that most would
appear less persuasive. For example, Kmiec asserts that family failure "is
reflected in troubling increases in violent crime and declines in educa-
tional achievement and general levels of civility" (p. 144). But recent
years have seen declines, not increases, in violent crime. According to the
latest crime victimization survey of the U.S. Department of Justice's
Bureau of Justice Statistics, "The rate of violent crime dropped 14 per-
cent from the period 2000­01 to the period 2002­03," and "violent and
property crime rates in 2003 remained at the lowest levels recorded since
the survey's inception in 1973" (Catalano 2004). Should we conclude that
the family is healing itself, or that Kmiec has not taken the time to check
the facts? Is his essay a work of faith, or of jurisprudence and social
science?
   Taken all together, Never a Matter of Indifference provides some use-
ful and provocative material for those seriously interested in the question
of whether limited government, individual rights, and free markets --central
elements of liberal republicanism--can indeed be self-sustaining. Both
the character and the quality of the essays are uneven, however, and in
some cases (e.g., Kmiec's essay) are not well tethered to the main ques-
tion of the volume. This work is best seen as a useful mine of hypotheses

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to be checked against the evidence in a more careful and systematic
fashion.
                                                    Tom G. Palmer
                                                      Cato Institute

References
Beito, D. (2000) From Mutual Aid to the Welfare State: Fraternal Societies
  and Social Services, 1890­1967. Chapel Hill: University of North Carolina
  Press.
Catalano, S. M. (2004) Criminal Victimization 2003. Washington: Bureau of
  Justice Statistics, National Crime Victimization Survey (www.ojp.usdo-
  j.gov/bjs/pub/pdf/cv03.pdf).
Madison, J. ([1789] 1981) ``Speech in the House of Representatives, June 8,
  1789.'' In M. Meyers (ed.) The Mind of the Founder: Sources of the
  Political Thought of James Madison. Hanover, N.H.: University Press of
  New England.
Putnam, R. D. (2000) Bowling Alone. New York: Simon and Schuster.
Skinner, Q. (1998) Liberty before Liberalism. Cambridge: Cambridge Uni-
  versity Press.
Smith, A. ([1776] 1976) An Inquiry into the Nature and Causes of the Wealth
  of Nations, Vol. I. Indianapolis: Liberty Fund.




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