Monday, September 24, 2012

Unwritten Constitution Day

Arriving on my desk last week -- on Constitution Day (Sept. 17) no less -- was the latest book by Yale law professor Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By. A sequel of sorts to the award-winning America's Constitution: A Biography (2005), Amar's new book examines the texts, traditions, and precedents that guide (and should guide, in his view) those who interpret the written document itself. Amar contends that a written constitution simply cannot include all the understandings that emerge over the course of centuries, understandings that undergird the words of the text, that help give meaning to that text. In his view, the written and unwritten constitutions work together, forming a single system that permits judges, lawyers, and citizens to make sense of the nature of our polity and the rules and principles that lie at its foundation. As Amar puts it,
The terse text is inextricably intertwined with the implicit principles, the ordaining deeds, the lived customs, the landmark cases, the unifying symbols, the legitimating democratic theories, the institutional settlements, the framework statutes, the two-party ground rules, the appeals to conscience, the state-constitutional counterparts, and the unfinished agenda items that form much of America's unwritten Constitution. 
Amar claims to go "beneath, behind, and beyond the written Constitution" while at the same time remaining connected to it. He says he wants to appeal both to originalists and to those who believe in a living constitution. But while the latter may find much that is congenial in Amar's interpretations, originalists will be driven wild by his approach, which necessarily entails going outside the four corners of the document and refusing to be bound by any sort of "original meaning" of specific words and phrases. What Antonin Scalia calls "textualism" is definitely not for Amar, who insists that the meaning of the Constitution lies as much outside the words of the text themselves as within. Nevertheless, thoughtful originalists and conservatives will find the book provocative and, one hopes, will wish to engage its arguments. To lend credence to this aim, the publishers offer positive comments by Ken Starr and Federalist Society co-founder Steven Calabresi, both of whom find Amar's work to be "fine book" but speak otherwise in vague generalities (calling it "thoughtful," "provocative," even a "classic" without exactly saying why).

What Amar attempts to do -- with some success it seems to me -- is to show, that there are principles underlying the words of the text that help us find the meaning of those words. He aims to stay true to the written Constitution even when going outside of it, and he lays out the appropriate techniques to do this. But go beyond the written text he certainly does, pulling into his analysis a wide range of materials, from Supreme Court decisions to the Gettysburg Address, from the pre-Constitution Northwest Ordinance to Dr. Martin Luther King Jr.'s "I Have a Dream" speech.

The argument that there are fundamental principles that allow us to determine the meaning of constitutional text even when confronted with circumstances never imagined by the drafters of that text is not a new one, of course. The best case for that position has been made by Ronald Dworkin in a series of books -- especially, Taking Rights Seriously, A Matter of PrincipleLaw's Empire, Freedom's Law, and Justice in Robes -- and it is mildly disturbing that Amar makes no reference to Dworkin's oeuvre. Dworkin's philosophically sophisticated argument for a principled reading of a constitution -- especially our Constitution -- sets the bar quite high (the height of that bar can be seen in Dworkin's excellent recent book, Justice for Hedgehogs). But Amar may be the more sophisticated historian (though I suspect "real" historians may find that he uses history like a lawyer building a case, rather than treating it with the semi-reverence historians prefer), and he provides those of us who reject the simplistic assertions of originalists and textualists with a wealth of information that sheds considerable light on the ideas that lend meaning to the words used in the Constitution.

I have written before that "originalism" is really quite a silly approach to constitutional interpretation, one that, despite the recent efforts of Justice Scalia and co-author Bryan Garner to give it some pedigree and despite its popularity with a certain breed of politician, cannot hold up to critical analysis. (That case, I realize, I have not made. So many projects, so little time.) Amar is kind enough to give that approach some respect, while rapidly carrying the idea that the meaning of the Constitution must rest in some way on the words in the text well beyond the place where Scalia would ever go even in his boldest moments. Scalia is bold, to be sure, but it is a blustery boldness, a kind of hard-headed resistance to any point of view that is not consistent with his own, rather archaic, one. And, as his recent battle with Richard Posner indicates, Scalia has no patience with criticism. He is a true believer, set in his ways and beliefs, convinced that he is right. In itself, such a mindset is not necessarily bad, though we would hope that thoughtful citizens would always be open to the challenge of reason. But Scalia simply refuses to consider strands of reasoning that cut against his settled prejudices; he chooses instead to shower those who reason in ways he cannot accept and those who reach conclusions that are not his own with sarcasm in lieu of reasoned argument (simply read any of his recent Supreme Court dissents to see examples of this proclivity). Casting his approach as an attack on the notion of a "living Constitution" -- an attack that generally proceeds by setting up a straw man and repeatedly setting it on fire -- Scalia has made himself an advocate of a dead Constitution, a document fossilized more than 200 years ago. Amar, like so many of us, finds that style of "thinking" bankrupt and, possibly, dangerous to the future of constitutionalism.

I have written elsewhere that constitutions
Constitutions seek to frame a political world that will overcome conflict, persist through change, and secure its blessings to posterity. Constitutions are designed to endure despite the challenges posed by times of stress. Most importantly, constitutions are conceived as orders imposed upon chaos, capable of ending revolution and disorder and preventing their recurrence.
What this means is that those interpreting a constitution must keep in mind the point of having a constitution. And they must remain firmly rooted in the text of the document, in the tissue of words the constitution projects into the world.
Constitutional words . . . both provide a solid, seemingly changeless touchstone for the development of the polity and a medium through which the constitution, the principles on which it is founded, and the goals it is intended to serve, may be communicated, debated, interpreted, re-interpreted, re-visioned. Because they are structures of words, constitutions are both changeless (though they may be amendable) and developing. Constitutions are not once-for-all, though they are written precisely to limit change by institutionalizing it. Words in a living language have the fascinating quality of never quite coming to rest in terms of their meanings and implications; they are, in terms employed by H.L.A. Hart, “open textured.” Languages grow and shift as they encounter an ever-changing world. Consequently, constitutions—constructions of words cast into the world—develop over time, very much like the constitution of a human person, never totally, but nevertheless steadily. They progress from within but are designed to stop fundamental transformation. Constitution-makers seek to erect structures that resist fundamental change but allow for development, structures that flex but do not buckle under pressure.
In other words, locking constitutional meanings in a particular moment in the past undermines the very point of a constitution, for it closes down the development that lies at the heart of the constitutional project.

There is, of course, much more that should be said here. But this is enough to indicate that I believe Amar is on the right track, for he seeks to figure out those ideas, principles, traditions, customs, precedents, and so forth that help constitute the texture, however open, of constitutional language. Amar may concentrate too much on the past for my tastes, but he effectively makes the point that part of the meaning of the words that confront us today is the product of the past. But it is a continuous past, one that did not end immediately after ratification but continues into the present. To the extent that Amar helps us come to grips with the presence of the past in the words we use and interpret, he has done a great service to constitutionalism.

In some ways, Amar conducts an archaeology of our Constitution, finding various layers beneath its text, layers that develop over time and extend into our present. He offers discussions of the Constitution as enacted and as it has been "lived" by the people. He explores case law, constitutional doctrine, and the iconography of the Constitution. He explores what he calls the "feminist Constitution" and the "Georgian Constitution" (in a chapter entitled "Following Washington's Lead"). He examines the ways in which practice over time has molded today's understanding of constitutional institutions. He looks at political parties and ethics and the ways both have influenced our interpretation of constitutional text.

Amar ends his book with a look at the Constitution of the future -- what he calls our "unfinished Constitution" (a term that must be like fingernails on a chalkboard to originalists like Justice Scalia).
Studying how our existing Constitution was in fact enacted, how it has actually been glossed by past interpreters and implementers, and how it truly operates today can also help us to make sound scientific predictions about which amendment proposals have the best odds of prevailing in the days and decades ahead.
While I'm not so sure about the claim to arrive at "scientific predictions" (surely this is over the top), a look at the unwritten principles that give foundation to our written Constitution may very well help us decide what amendment proposals are most consistent with our constitutional tradition, which ones fit best with the course of our constitutional history and best continue that history. Such a look will not help anyone make sensible predictions about what will happen, at least not absent a host of additional assumptions about the direction, current condition, and fate of American political culture, about the nature of future challenges to constitutional democracy, and about the ways in which future people will respond to events and ideas we cannot even imagine. But this is a small point, one that hardly undermines the value of Amar's overall endeavor.

Amar's book provides a thoughtful, helpful, at times provocative interpretation of how we should seek to understand our American constitutional adventure. As lawyers -- as citizens -- we should seek to learn more about the constitution, to reflect upon the meaning of constitutionalism, and to engage in constitutional reasoning. America's Unwritten Constitution offers a perspective and a set of insights that can help us in these tasks. The book is long (nearly 500 pages) but reads easily. Those interested in taking their responsibilities as constitutional citizens seriously will find it a worthwhile exercise -- and a breath of fresh air after a season of stultifying discussion of original meanings and uninformed (or deceptive) political babble.

Saturday, September 8, 2012

Random Notes, Part II: Watchdogs and the Bad Man View of the Law

My son called to my attention an article by Anthony Hilton in the British trade publication PRWeek, tracing the roots of the Libor rate-fixing affair to a rotten culture at the heart of the banking industry. (The article is, unfortunately, behind a subscriber's login.) Hilton notes that "the reason why in some companies things appear to have gone badly off the rails is that the in-house lawyer, whose traditional role was to keep the company on the straight and narrow, no longer fulfils that role in the same way." In other words, one of the keys to the corruption that has crept through the corporate world is lawyers no longer play the role they once did.
In earlier times when the lawyer saw behaviours in the organisation that he or she thought could be a source of reputational risk, they would inform the board that the policy was unacceptable and would have to be changed. Today the guidance is that the behaviour is unacceptable but if the company wants to continue with it, then it needs to structure it in a certain way. In other words, ensuring the corporate culture complied with the spirit of the law has given way to compliance with the letter of the law.
To the extent there is a bright spot in this rottenness, according to Hilton, it belongs to the PR and communications people inside these companies, who now put much of their focus on "internal comms . . . spotting where the company is behaving badly, forcing the matter to the attention of the board and getting it stopped before it causes real damage."

On first read, I didn't know whether to be pleased with the watchdog role now being taken (at least according to Hilton) by communications people (that is, after all, what I do for a living) or saddened, even angered, by the criticism of lawyers. The more I thought about it, however, the more it occurred to me that Mr. Hilton likely has it wrong. The nostalgia about in-house lawyers disturbs because it posits a sort of Golden Age from which we have fallen. It suggests that the legal profession has become corrupt, more concerned about self-interest (or the self-interests of those they serve most immediately) than about the common good. It would be nice had it once been the case that in-house lawyers called questionable activities to the attention of the board and insisted it be changed. Perhaps it was. And it would be sad if lawyers no longer looked out for the public interest by calling their employers to account.

But the role of the corporate lawyer has long been to help a company stay within the letter of the law. As far back as the turn of the 20th century, Oliver Wendall Holmes spoke of lawyers employing a "bad man's" view of the law when advising clients: that is, they asked what the courts (or other quasi-judicial bodies) would do in fact, not what the spirit of the law might be. They asked the question a bad man would ask: what can I get away with? Holmes saw nothing wrong with this approach, which he saw as inevitable given the role lawyers play in our system. And Holmes was skeptical of any "more pretentious" sense of what is morally right or of how lawyers should act. When a client asks what the law says about whatever it is she wants to do, the answer must include information of what the relevant judicial bodies are likely to do. It would be dishonest to present a reading of the law that is stricter than the relevant court would give it, though nothing precludes the lawyer from also addressing the intentions or goals behind rules and regulations. In fact, those intentions and goals likely will influence how courts read those enactments -- unless, of course, the court is staffed by narrow-minded textualists or Scalian originalists, who have no truck with anything beyond the literal meanings of the words in the text. Lawyers are expected to be assiduously honest, and I think that means telling their clients the truth about the actual state of the law in practice rather than offering some pie-in-the-sky theory about what the terms of the law might mean were they read by some ideal judge in the heavenly city.

To be sure, a case can be made that the "bad man" style of lawyering is cynical and unethical (that's why it's called the "bad man" view). But that case is not very convincing. The job of the lawyer is primarily to serve her client (see the Rules of Professional Conduct), and only secondarily to ensure that some abstract notion of "justice" is achieved on any given occasion. Placing the client above abstract justice lies at the heart of the adversary system, and while arguments can be made against the adversary system as a system, those arguments must remain merely philosophical in the face of the fact that the people have done nothing to replace that system with something else. Lawyers are "officers of the court" and must perform their roles within the terms set by the system. The practice of the law, in that sense, is conservative because it assumes that the rules, customs, and traditions that have grown up over time are likely to better serve justice than random, individual, and non-traditional attempts to achieve justice on isolated occasions and outside the standing rules of practice. Such a vision of the law and legal practice strikes me as most consistent with the very idea of a constitutional democracy.

None of this should be read to deny that there are conceptions of justice built into the system that should guide courts and lawyers in deciding cases. There are such principles. But it is unlikely that in advising a client the lawyer's role is to wax philosophical about some of those principles and how they relate to the client's particular interests. The principles may become relevant now and then in court, in defense of the client who is charged with doing something. But that means that their place is in the deliberations of the lawyer heading to court, in the judge's chambers, and in the conference rooms of appellate courts -- not in the office of a client who is looking for advice as to how to behave on a particular occasion.

And so what has changed, I believe, is not the tendency of lawyers to help their clients do what they want to do within the bounds of the law, but what those bounds actually are. Where rules and regulations are interpreted in very broad and permissive terms, where they often go unenforced, it is incumbent upon the lawyer to tell her client the truth about these matters. To present a reading of the law that ignores these features of the material circumstances in which the client will act is dishonest and places a preoccupation with one's own purity above the interests of the client.

So not only is Hilton likely wrong about the way things used to be, but he is also wrong about how they ought to be. Certainly lawyers should tell their clients when they or their employees are doing something that violates the law as it will be read and enforced. But the next step is to help the client achieve her goals within the terms of the law; it is emphatically not to stubbornly dig in his heals and refuse to offer the advice the client seeks.

Hilton may even be wrong about the way things are now. I suspect there is just as much evidence (and just as little) for his claim about the role being played by communications people as there is for his claim about the failure of in-house (or external) counsel to be good watchdogs. How do we go about proving that lawyers are not, generally, warning their clients against actions that violate the law? It is quite possible that lawyers do this regularly, and that most clients take their advice to heart and act in socially acceptable ways. There is no way of knowing. Bald assertions about how bad lawyers have become only serve to pin the blame for large misdeeds on easy targets, thereby ridding corporate executives and the culture they have created -- not to mention the culture at large, created largely by a citizenry vastly more interested in material things than in civic virtue -- of the responsibility for the corruption that surrounds us. 

Wednesday, September 5, 2012

Posner v. Scalia; Or, What Is It to Be Conservative?

In the current issue of The New Republic, Richard Posner, prolific writer and judge on the 7th Circuit Court of Appeals, reviews Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan A. Garner. Posner and Scalia have a long-running battle, as might be expected from the fact that the former believes judges should decide cases based, at least in part, on economic reasoning while the latter clings to a textual originalism that sees the economic style of interpretation to be fundamentally unsound because it imports extra-textual factors into the reading of law and constitution. Posner is a sharp reasoner -- considerably sharper in my view than Scalia, who favors the clever bon mot and the witty, sarcastic one-liner. This is not the place to venture into a full-scale critique of Scalia's originalism, however. Suffice it to say that Scalia's interpretive methodology does not hold up well to criticism -- whether from the left or the right -- and Scalia's own practice of it seems suffused with the justice's political leanings. Posner finds Scalia's jurisprudence to be "incoherent," and makes a strong case for the claim. Indeed, Posner is overall a much more rigorous thinker than Scalia, though in the end I find him no more congenial because I do not agree that the purpose of law can be reduced to an economic one.

What is most interesting in this conflict is that both judges would generally be considered "conservative." One lesson from this observation is that conservative thought does not necessarily lead to "originalism." Scalia and Garner are right to argue that interpretive approaches (at least this one) have no inherent political leaning. One can imagine an originalist who does a better job than Scalia typically does determining the original meanings of words and phrases and passages and texts -- one who finds, contra Scalia, that those original meanings are considerably more "liberal" than does Scalia. Still, as usually practiced, originalism serves as a cover for politically conservative results, and as Posner is at pains to show, many of Justice Scalia's judicial opinions seem rooted far more in political conservatism than in originalism; certain sorts of results are much more likely to emerge from Scalia's search for original meanings than are others.

Another lesson follows from the first. "Conservatism" is a copious term, encompassing many different points of view and a subject of considerable controversy in itself. Traditionally, a conservative was someone who sought to "conserve," to keep things the way they are and have long been. That sort of conservative is wary of human interference with custom and tradition, believing that no person, no set of policymakers, can know enough to redesign what history has handed down to us without risking great harm, disorder, and destruction. That sort of conservative followed Edmund Burke, who attacked the French Revolution for casting off centuries of tradition in favor of newfangled ideas propounded by professors and writers -- and replacing a longstanding political regime with something new, untried, and, in the end, brutal and tyrannical. Michael Oakeshott best captured this sort of conservatism in his "On Being Conservative": "To be conservative, then, is to prefer the familiar to the unknown, to prefer the tried to the untried, fact to mystery, the actual to the possible, the limited to the unbounded, the near to the distant, the sufficient to the superabundant, the convenient to the perfect, present laughter to utopian bliss." Oakeshott was particularly concerned about the increasing role of what he called "Rationalism" in politics. The Rationalist is someone who thinks "the conduct of affairs . . . is a matter of solving problems, and in this no man can hope to be successful whose reason has become inflexible by surrender to habit or is clouded by the fumes of tradition." The Rationalist is a social engineer with no patience for "second best" solutions. The Rationalist thinks now is the time to achieve the ideal; his solutions are perfect and must be applied uniformly, across the board, with no local variation, for they are founded on the application of rigorous scientific reason to the problems a society faces. The true conservative, on the other hand, resists rationalism and favors the slow, tedious working out of solutions over time to the helter skelter vigor of rationalist interventionism. Tocqueville had this sort of conservatism in mind when he said that lawyers in America are the true aristocrats, the true conservatives.

Who represents such a conservatism today? Certainly not Posner, who espouses an activist judiciary bent on assuring that law serves to produce economic welfare by permitting the market to do its work. Posner is a proponent of the free market, a follower of Milton Friedman and a contributor to the so-called "Chicago School" of economics. In Posner's view, documents like laws and constitutions are ever subject to reinterpretation under the circumstances by wise judges equipped with the best knowledge and methodology economic science has to offer. Posner himself admits that the conservative label may not fit him very well these days, telling Nina Totenberg that he has "become less conservative since the Republican Party started becoming goofy."

But it is just as hard to make the case that Scalia is a conservative in any traditional sense. His vision of the judicial role involves a readiness to overturn statute and precedent in an activist effort to return the nation to an earlier, purer time -- an "original" time when words had their original meaning, a day before all those changes in law and society that so inconveniently occurred over the past 200 years or so. Scalia is conservative only in the sense that the political views he barely veils are considerably more consistent with those of the Republican Party than with those of the Democrats. But as a judge, Scalia does not seek to conserve anything, and he finds nothing congenial in what the historical process -- the traditions and customs that have evolved in the United States -- has given us; far from wanting to conserve these traditions and customs, he wants to return to a time before they developed. This is not conservatism in any meaningful sense, though its proper name is unclear.

In fact, both Posner and Scalia are rationalists: Posner with his eye on the ways legal decisions can shape a better future and Scalia with his eye on a day in the past before society and language and meanings and values had not changed from their "original" state. Both are impatient with letting society, tradition, custom, and law develop over time: Posner because he considers such forces as barriers to sound reasoning, Scalia because they have just turned out all the wrong ways. Both, in short, favor action over passivity in the face of the way things are now. They just want to go in different directions.

The Posner-Scalia debate, therefore, confronts us with a problem (beyond the question of who we find most persuasive): are today's so-called conservatives really "conservative," or are they Oakeshottian rationalists who resemble their supposed "liberal" opponents in their desire to interfere with the way things are? In fact, the debate makes us wonder what a conservative really is. Is it conservative to call for a freer market and a legal system that aims to foster that freedom and encourage the pursuit of economic betterment? Is it conservative to reject what our society and its law has become in favor of older forms of social order and some supposedly ascertainable "original" meaning in legal words? Or is it conservative to cling stubbornly to what we have and where we are, only accepting gradual change and solutions that, while not ideal, are "best in the circumstances"?

Posner's critique of Scalia is worth reading not only because it calls into question a jurisprudential view that gets more respect that it deserves, but also because it raises these questions about what it means to be a conservative. For if a republic, as Machiavelli, Harrington, and Jefferson told us, must periodically return to its first principles in order to guard it against the degeneration all political societies inevitably face, a proper sense of what conservation of those principles requires must go along with a consideration of what those principles actually are.

Monday, September 3, 2012

Random Notes, Part I: Ayn Rand and Reason

I have argued several times that good citizenship of a constitutional democracy like our own requires thoughtful engagement with ideas on a wide range of issues and from a wide range of perspectives. A significant criticism frequently leveled at contemporary America is that most people have isolated themselves into enclaves where everyone lives and thinks the same way. As Cass SunsteinBill BishopRobert Putnam, and a host of others have argued, Americans increasingly choose to expose themselves to a narrower and narrower spectrum of opinion and many Americans simply avoid engaging in the realm of political and social ideas. Liberals say this about conservatives; conservatives say this about liberals. To some extent they are both right -- and it speaks to the generally sad state of citizenship in the United States. It may be, as I have hinted before, cause for despair and a sign that our long-lasting republic has begun to degenerate as, the tradition tells us, all republics eventually do.

But those who do open themselves to thoughtful analyses of ideas and events -- legal, political, social, economic, religious -- frequently come across interesting items that deserve a wider audience than they are likely to receive in the compacted world of contemporary discussion. In the next few posts I share some of the things I've read this week that I found provocative.

In my most recent post on "Corruption and Equality" I made a veiled reference to Ayn Rand, who has always commanded a devoted following and who has recently been on the lips of many a conservative policymaker and politician. Rand is hot, not just with Ron Paul and his followers, but with many on the right, including Republican vice-presidential nominee Paul Ryan. My reference suggested that American citizens might be better served by finding their intellectual inspiration in the writings of those who founded our constitutional system (and those who inspired them) rather than in the novels of a Russian emigre. Snarky, perhaps, but worth considering. This week I came across a powerful critique of Rand by Canadian philosopher, Nicholas McGinnis. If you are philosophically minded and are interested in wrestling with complicated ideas, McGinnis's analysis of Randian philosophy and economics is quite persuasive. Rand's followers rarely examine the philosophical assumptions upon which her economic conclusions are based. They like the conclusions, and simply assume the argument is strong; or they toss out a few of Rand's seemingly self-evident truths and, skipping blithely past the deductions that might lead from the truths to the economics, assume they've said all they need to say. But the essence of McGinnis's argument is that Rand writes as if she building upon a well-worked out philosophical system, when in reality she is not. For instance, the famous Randian claim that "existence exists," always presented as if it were an indubitable truth, has no particular cash value when an attempt is made to ground economic policy on it. In fact, some would be inclined, I imagine, to say the phrase is silly, meaningless, high-sounding babble -- and they might well be right.

What is most interesting about McGinnis's critique is that it does not rest merely on critics such as Gore Vidal, who said in 1961 that Rand
has great attraction for simple people who are puzzled by organized society, who object to paying taxes, who dislike the "welfare" state, who feel guilt at the thought of the suffering of others but who would like to harden their hearts . . . Ayn Rand's "philosophy" is nearly perfect in its immorality, which makes the size of her audience all the more ominous and symptomatic.
Strong words, but easily tossed aside as the ideological claims of a dyed-in-the-wool liberal. McGinnis, however, relies more on a philosophical analysis of Rand's reasoning and, most interestingly, on the developed views of numerous conservative and libertarian writers -- from philosophers to journalists to politicians to economists, from Robert Nozick to William F. Buckley to Whitaker Chambers to Alan Greenspan. McGinnis, in other words, does not remain in some sort of liberal bubble, but ventures out into territory he may not find congenial or comforting. But what he finds there is that Rand has far more devotees than people who are convinced by her arguments. He concludes that Rand's thought doesn't stand up to analysis, whether from the left or the right or from a standpoint of neutral reason (if there is such a thing -- but that is a topic for another occasion).

Take, for instance, the fairly recent rejection of the foundation of Randian economic policy -- the claim that self-interest is a virtue and therefore that the world will be a better place if we simply take the government reins off of selfish behavior -- by a former devotee, Alan Greenspan. Testifying in 2008 before a senate committee investigating the financial crisis, Greenspan admitted:
I made a mistake in presuming that the self-interests of organizations, specifically banks and others, were such that they were best capable of protecting their own shareholders and their equity in the firms . . .  Those of us who have looked to the self-interest of lending institutions to protect shareholders' equity, myself included, are in a state of shocked disbelief.
Pressed by committee chair Henry Waxman for more, Greenspan conceded there was a serious flaw in this most fundamental of Randian arguments: it seems that Rand's views do not, after all, provide a sound basis upon which to build economic policy.

In fact, the flaws in Rand's thought are legion, as McGinnis shows with the help of his conservative sources. Philosopher Robert Nozick, author of the widely read and praised Anarchy, State, and Utopia (which makes a strong, if ultimately unconvincing, philosophical case for libertarianism), typifies the response of thinkers who have taken Rand's arguments seriously. Nozick criticizes Rand for lacking clarity, for simply asserting (without support) a set of debatable premises, for leaping to conclusions without proper argument, and for (in McGinnis's words) "baldly stating controversial theses as if they were self-evident facts." Nozick states that, as much as he would like to set out Rand's argument in deductive form and then examine the premises, "it is not clear (to me) exactly what that argument is." This from an acknowledged master of libertarian and Austrian economic logic.

Writing in 1957 in the National Review, whose editor William F. Buckley had rejected the banal and "dessicated philosophy" of Rand as a violation of the conservative tradition, Whitaker Chambers concluded:
Out of a lifetime of reading, I can recall no other book in which a tone of overriding arrogance was so implacably sustained. Its shrillness is without reprieve. Its dogmatism is without appeal. In addition, the mind which finds this tone natural to it shares other characteristics of its type. (1) It consistently mistakes raw force for strength, and the rawer the force, the more reverent the posture of the mind before it. (2) It supposes itself to be the bringer of a final revelation. Therefore, resistance to the Message cannot be tolerated because disagreement can never be merely honest, prudent, or just humanly fallible. 
Chambers worried that blind devotion to the Randian cult was not only anti-conservative, it was dangerous. At the end of the road that starts with treating Rand as some sort of prophetess with the key to political and economic truth, lies Big Brother -- as it does with the form of materialism Rand most hated: Russian Marxism.

I can understand the initial appeal of Rand's novels, with their heroic individualists taking on the world. I have friends who think these novels are classics, though no one I know would go so far as Rand's erstwhile lover and follower, Nathaniel Branden, who once proclaimed
Ayn Rand is the greatest human being who has ever lived. Atlas Shrugged is the greatest human achievement in the history of the world. Ayn Rand, by virtue of her philosophical genius, is the supreme arbiter of any issue pertaining to what is rational, moral or appropriate to man's life on earth.
Wow. Really? But the oft-heard repetition of Rand's name as if it were a guarantor that there is sound philosophical reason behind policies to unleash selfishness partakes of the same sort of mindlessness. One does not need to be a liberal to bemoan the fact that, increasingly in some circles, selfishness is being touted as if it were the path to human welfare. Thinking conservatives, it seems, find this just as groundless. And both have reason to think it dangerous -- if for no other reason that that the Randian argument is, as McGinnis concludes, simply not there.