Libertarian Book Reviews

100 Supreme Court Cases

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Randy Barnett is a libertarian-leaning law professor at Georgetown. You may have come across his previous books, Restoring the Lost Constitution (2004) and Our Republican Constitution (2016). He’s joined up with Josh Blackman (South Texas College of Law) for a new book: An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.

As a reasonably well-informed American, but by no means a legal scholar, I started with an image in my mind, a mental model of sorts, for how the Constitution worked. We have a government of limited, enumerated powers, with a 10th Amendment that reserved other powers to the states and the people, etc. I knew that there have been some perturbations from that ideal, during wartime and during the Great Depression, but I had taken the ideal as the accepted norm, one that we’d (eventually) swing around to again.

Barnett and Blackman have disabused me of that notion. What is particularly impressive is they did so without pushing an overt point of view in the book. They pretty much lay out of the facts of the case, quote from the court’s opinions, but offer none of their own. But in the way they have ordered and connected the cases, and from pondering the questions directed to the reader in the “Study Guide” sections, the contradictions and deviations in contemporary constitutional interpretation are made vivid and blatant.

(Of course, it is possible that other readers, with a different ideological bent, would come to a different conclusion, and read this as an illustration of how progressive jurists remedied a flawed original constitution by nullifying economic rights of the individual and bringing greater equality by enlarging the scope of federal regulatory powers.)

The book gives its deepest focus to the evolution of due process and equal protection, but it also gives a good level of coverage to the 1st Amendment and to the (de)evolution of private contract and property rights.

Purchasers of the book are also given access to an online supplement of short videos corresponding to each of the 63 chapters. These videos pretty much repeat the material of the chapter, and are accompanied by photographs illustrating the parties and controversies involved. These photographs had been collected by Blackman over the years and were originally intended for a coffee-table book.

This is an easy read, one that requires no previous legal training. If you are seeking a single volume introduction to the Constitution, warts and all, this is a good place to start.

Filed Under: Law

Our First Revolution

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If your secondary education was like mine, British history was taught as part of “world history” (in my days, essentially Greco-Roman antiquity and Western European history). We were taught about William the Conqueror, the Magna Carta, the War of the Roses, Henry VIII and his marital troubles, Elizabeth I and her lack of marital troubles, Charles I and his head troubles, perhaps a mention of Cromwell, but that was about it with England. I think I learned more about Cromwell from a Monty Python song than I did from school. As far as the English-speaking world went, there was nothing of interest to an American classroom after Cromwell until WWII. The discussion shifted to Plymouth Colony and Puritans in America, and went on from there, with American history.

Now, to be sure, there are only so many hours a year available for teaching history in public schools, and it is proper for an American school to focus on American History, and that portion of world history that particularly influenced American history. But by these criteria I still believe I was short-changed by not having been exposed, in my early years, to the story of the Glorious Revolution of 1688, the downfall of James II, the parliamentary election (essentially) of William and Mary as dual-monarchs, and the English Bill of Rights that followed.

The fact is, these events were American events as well as British events, since they came at a time when the colonies were still yoked to Mother England. Although they were not alive at the time, the American Founding Fathers were students of the the Glorious Revolution, internalized its lessons, and had it in their minds as they crafted a new government. You can see this in our own Bill of Rights, which essentially cribbed from the 1689 English Bill of Rights items such as the right to bear arms and the prohibition against cruel and unusual punishment. We cannot fully understand our own American history without understanding the Glorious Revolution.

Michael Barone’s Our First Revolution: The Remarkable British Upheaval that Inspired America’s Founding Fathers is an excellent introduction to the topic, and an easy and engaging read. He targets an American audience, which is most welcome. (Some other treatments, out of England, tend to assume greater background knowledge in English history.) He does a good job presenting the historical context, in England, the Netherlands, France, Scotland and Ireland (a big task), as well as the personalities involved, not only the principals but also the supporting cast, like John Churchill, 1st Duke of Marlborough, whose shift of allegiance tipped the balance in William’s favor.

Although neither this book nor the author are particularly libertarian in outlook, I recommend the book to libertarians for a few reasons:

  • It is important history that I suspect is missed by most American students.
  • It does provide important context for understanding our American Bill of Rights, for example understanding the 2nd Amendment. A good response to those who say the 2nd Amendment existed only to prevent slave revolts would be to point out its antecedent in the 1689 English Bill of Rights, where slavery was not even relevant to the debate.
  • Similarly, it helps understand why the Founders were skeptical of standing armies and instead favored militias.
  • There is ample material provided in Barone’s history to suggest a revisionist interpretation, where a tolerant monarch (James II) was overthrown by paranoid Protestant supremacists, bent on forming a military superpower, with a strong, central government, and a new Bank of England to fund it. It is worth exploring whether this was all as “glorious” as the Whigs would claim.

The Case Against Socialism

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There are several classic books that make the case for individual freedom over the collectivist state. Friedman’s Capitalism and Freedom, Hayek’s The Road to Serfdom, and Mises’s Liberalism come to mind. But for all the virtues they have, with the commanding sweep of their vision and their penetrating social analysis, the reader of today often struggles in understanding the argument due to the reliance on examples that today are dated, even obscure. The reader of 2019 reads these classics for their evergreen ideas, but often ends up baffled by discussions of 19th century English politicians, New Deal legislation, the Bretton Woods currency system, or Nixon-era price controls.

Against this background, Rand Paul’s new book, The Case Against Socialism, is a most welcome addition to the literature of freedom. He does not innovate—not need he—on the fundamental arguments in favor of liberty. Instead, Sen. Paul does an admirable job refreshing the argument for a reader of today, with 39 short, conversational chapters discussing topics such as Venezuela, Scandinavia, authoritarianism, economic inequality, climate alarmism and fake news.

The text is organized into six parts, containing 39 short, conversational chapters. The text is well-documented, with hundreds of footnotes citing sources, many of which I’ve copied down for further exploration.

This is a good, easy read, one I recommend heartily. It is the right argument, at the right time.

Overcharged: Why Americans Pay Too Much for Health Care

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I must confess.  I’m not a frequent reader of Cato Institute publications.  Many of them come off as overly-wonkish, Chamber of Commerce-approved reports.   But I had heard good things about Charles Silver’s and David A. Hyman’s new book, Overcharged: Why Americans Pay Too Much for Health Care, and decided to give it a good cover-to-cover read.   I’m glad I did.

It is easy to get angry reading this book.  I’m sure my blood pressure increased a few points as they went through their litany of examples of fraud, waste and abuse, across both public (Medicare, Medicaid ) and private insurance systems.  But it is an argument that must be made and that everyone should hear: Our system of 3rd party payers desensitizes healthcare consumers to costs and encourages over-consumption.  This is encouraged by political control over the public programs, which is captured by the healthcare industry, to maximize the amount of taxpayers dollars transferred to this sector.  The end result is the overly-costly system we have today.  It is working by design.

The solution?  The authors propose a range of approaches, from the Singaporean model of mandatory personal health savings accounts topped of by government contributions for the poor, a system of “prizes” for new drug development instead of patents, spurring market-based competition from private hospitals and clinics , domestic and international (the Surgery Center of Oklahoma and the Narayana Health Hospital in Bangalore both get props), and in general, focusing more on 1st party, individual spending for routine and predictable medical expenses, from band-aids to pregnancies,  reserving 3rd party insurance for truly unforeseen catastrophic cases.

Of course, the authors drive home the point that the “medicare for all” option, being discussed in some circles today, would just double down on failure.   I’d highly recommend this book for anyone who wants to win the argument the next time their Facebook friends spout off about the supposed virtues of such an expansion.

One last thing — The book, aside from the importance of the argument it makes, is a damn good read as well.  It is well-organized, keeps a good pace, the examples are vivid and memorable, and in general, it keeps the reader’s attention.

Confessions: An Innocent Life in Communist China

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When it comes to tales of life under communism, narratives of soul-killing repression, the most-read and most-heard ones deal with experiences in the former Soviet Union.  From Arthur Koestler’s fictional Darkness at Noon and Solzhenitsyn’s A Day in the Life of Ivan Denisovich, to news stories of the repression of scientists like Andrei Sakharov and over-the-top Hollywood treatments in the 1980s, we’re familiar with that genre.

From China, however, we’ve heard far less.  Sire, we have a picture of pre-war China in Pearl S. Buck’s The Good Earth.  And we have Bertolucci’s evocative treatment in the movie The Last Emperor.  But these are views from the outside.  Where is the view from the inside? Where is a Chinese writer to stand with Solzhenitsyn and Pasternak?

For your consideration, I’d like to suggest Kang Zhengguo’s autobiographical Confessions: An Innocent Life in Communist China as a strong contender.

Kang was not (at least not until the end) a political dissident as we think of the term.  He was apolitical, bookish, shy, a Walter Mitty daydreamer of sorts.  But as his life progressed, from as an upper middle class childhood at the end of WWII, through the Communist Revolution, Civil War, the Great Leap Forward, Cultural Revolution, etc., we see his insufficient embrace of the new political order drive him further and further downward, with greater and greater deprivations, from his expulsion from the university, to time in labor camps, to laboring on a collectivized farm, along the way losing status, friends, even his family.  (After a few surprising twists, he ultimately lands, in the 21st century, at Yale University, as a Chinese language instructor.)

This is the kind of book that is hard to put down.  Aside from the gripping portrayal of the psychological toll of communism, eerily familiar to students of the Soviet dissident narratives, this is a fine work of literature in its own right.  Susan Wilf’s marvelous translation, and ample footnotes that elucidate unfamiliar aspects of Chinese history, culture and allusions to Chinese classical literature, guide the reader to fuller appreciation of this autobiography.  Highly recommended.