Archives for February 2018

2018 Note: Mr. Geraldo Rivera has enjoyed a long career as a television journalist, initially in the New York City area and eventually on nationally-broadcast news programs. He quickly established a reputation for impassioned ‘advocacy journalism’ in the longstanding ‘muckraking’ tradition. By the 1990s, he had amassed a personal fortune sufficient to purchase a substantial residence in Locust, New Jersey, overlooking the Navesink River. He purchased controlling interest in a struggling local weekly newspaper, The Two River Times, founded by Claudia Ansorge, saving it from bankruptcy. He also contributed a column to the paper, and in September 1993 he published an article condemning New Jersey’s Farmland Assessment Act of 1964, which provided a property tax reduction to farmers. In the nearly three decades since the enactment of the law, clever accountants had discovered that landowners could qualify as ‘farmers’ if they could show they produced a small crop of some sort—for example, an annual harvest of timber from several acres of woodland.

Mr. Rivera was not amused, and I was amused by his failure to be amused. The following article was published under a pseudonym in the paper on October 20, 1993.

 

Mr. Geraldo Rivera’s condemnation of the Farmland Assessment Act must be admired on at least one point. Behind Mr. Rivera’s indignation—seen in his exclamation that “a law designed to help one of our most disadvantaged classes of citizens, the family farmer, has instead been twisted, misused, and corrupted over the years, until now it bears no resemblance to the original”—looms the benevolent face of Judge Robert Bork. Although Mr. Rivera did not number among Bork’s conspicuous defenders at the time of the judge’s nomination to the United States Supreme Court, it is refreshing to see such an energetic brief filed on behalf of the doctrine of “original intent,” scorned by Bork’s enemies. As Mr. Rivera clearly sees, to abandon the original intent of the framers of any law is to open all our laws to manipulation, whether by the self-interested or by the self-proclaimedly ‘idealistic.’

I fear, however, that Mr. Rivera may now be attacked with all the venom once aimed at his soul-mate in Constitutional probity, Robert Bork. Moral reductionists who inflate ad hominem vindictiveness into pseudo-principles will say: ‘Rivera is cynical and self-interested. In complaining that his neighbor, who enjoys a farmland assessment, pays “perhaps 1/10 as much” in taxes “for the same size property,” Rivera merely betrays his envy for those whose accountants and tax lawyers are more expert than his own. Rivera could solve his problem by buying a couple of beehives, but no—he has to make a federal case of it.’

Such critics may continue their vituperative assault along these lines; ‘Rivera is not only cynical, he is sophistical. He demonstrates that residential and farmland assessments are indeed unequal. But “unequal” hardly means unfair. By conflating inequality and unfairness, Rivera deliberately subverts the rules of logic for his own advantage, a shocking travesty of the fair-mindedness he pretends to espouse.’

And yet, we all know that such charges must be calumnies. Mr. Rivera’s justice and wisdom are widely acclaimed, nowhere more often than in The Two River Times. All of his readers must jump to his defense against those who would blacken his reputation. It is an honor for me to go first.

Let us begin by consulting the principles of the United States Constitution with respect to property. As it happens, the issue is addressed by James Madison in a famous passage from the tenth number of The Federalist. As you will recall, Madison here discusses the need “to break and control the violence of faction”—the tendency of all governments, even popular ones, to be divided conquered by those who, in their blind ambition, declaim against the rich or oppress the poor. In order to avoid the self-destruction of republican government and to arrest the slide toward anarchy and despotism, Madison recommends the encouragement of many different kinds of property. “The diversity in the faculties of men [Madison writes], from which the rights of property originate, is… an insuperable obstacle to a uniformity of interests. The protection of those faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors ensues a division of the society into different interests and parties…. The regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of party and faction in the necessary and ordinary operations of government…. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice.”

There is, for example, a temptation for the majority party to boost its power by decrying certain tax deductions as constituting a “welfare program for the rich,” in Mr. Rivera’s uncharacteristically ill-considered and factitious phrase. (After all, a tax break means you keep your own money; a welfare check means you’re getting somebody else’s.) Famously, Madison argues that the Constitution will lessen the dangers of political demagoguery by enlarging the territory and population governed by republican institutions. The United States will be a large country whose citizens will exhibit diverse interests and virtues—a country whose citizens, on account of the very diversity of their property, will not easily combine to enable “any one party to outnumber and oppress the rest.” The “rage” for any “improper and wicked project” such as “an equal division of property” would require, for its satisfaction, a despotic government that would at once enforce economic equality while destroying the political equality that could continue to enforce economic equality. This rage can be frustrated only by the deliberate encouragement of diverse property.

The Farmland Assessment Act evidently was intended to foster such diversity. It has succeeded rather too well, in Mr. Rivera’s opinion. He wants the law amended to restrict eligible property owners to “family farmers,” a category he leaves tantalizingly undefined. He assumes that such restriction will lower his own property taxes, and generally conduce to liberty and justice for all.

It is more likely that the effects of the Rivera amendment will be mixed. Some property owners will take the hit, or sell to others who will, thereby lowering taxes on the Rivera estate. Others will deed their land to a non-profit conservation trust, or to a government, or engage in some other tax-reducing scheme, removing property from the tax rolls altogether and raising taxes on the Rivera estate. Still others will sell their property to developers who, depending upon the density of the development, may or may not incur government expenses greater than the tax revenues generated. The net result will be increases in developed lands privately owned and in undeveloped lands publicly owned or owned by non-profits. The class of property most endangered—undeveloped or lightly developed large parcels privately owned by individuals—will continue to decline. And this may or may not result in any increase in property tax revenues. It cannot result in increased equality of taxation, unless owners passively accept the higher assessments. This they have already proven themselves disinclined to do.

The TRT editorial printed next to Mr. Rivera’s essay observes, “the general public would be better served by careful deliberation and thoughtfully crafted legislation than hasty, election-year patchwork and posturing.” Such caution contrasts favorably to expression of moral indignation, especially since these so often leave the polemicist open to charges of tu cocque. As a reward to his staff for its superior prudence, and as a happy solution to his property tax woes, Mr. Rivera might consider moving his newspaper operations to his Locust property. After all, judging from Mrs. Ansorge’s recent description of your operations, TRT offices are a veritable beehive of activity; if beehives are an accepted agricultural activity deserving of farmland assessment status, the move would satisfy tax authorities. Better still, the move would elevate TRT staff to the quality of life to which they deserve to become accustomed. Mr. Rivera’s neighbors will remain free to cut their timber in peace, and sell it to their relatives, or any other willing buyer. The purposes of the U. S. Constitution will be served, the judgment of its Framers vindicated once more. All will be well.

Admittedly, in vindicating Mr. Rivera’s justice and wisdom, I am compelled to call upon him to sacrifice his opinion, and to douse the coruscant flame of his passion for equality, a passion which, paradoxically, has raised his reputation so far above the common herd. It is a small sacrifice, one that will only burnish the bright escutcheon of his fame—which, as Madison’s colleague, Alexander Hamilton, wrote, is “the ruling passion of the noblest minds.”

Essay written in September 1991.

2018 Note: President George H. W. Bush nominated Clarence Thomas to the United States Supreme Court on July 1, 1991. He had previously served on the United States Court of Appeals for the District of Columbia. In effect, he underwent two hearings before the Senate Judiciary Committee. In the first set of hearings, Thomas was questioned closely by senators who did not share his strict-constructionist approach to Constitutional interpretation, Senator Edward M. Kennedy of Massachusetts being one of his leading critics. After these initial hearings were concluded, allegations of sexual harassment of a co-worker at two of Thomas’s previous jobs in the federal bureaucracy were leaked from an FBI report. This caused the Committee to reconvene and call his accuser as a witness, along with Thomas himself, in a dramatic quasi-trial. The ‘case’ boiled down to his word against hers; absent anything more substantial than hearsay evidence, Thomas’s nomination was confirmed. This essay was written before the second set of hearings, when the issue was the more conventional question of how a Supreme Court Justice should ‘read’ the Constitution.

 

In nominating Clarence Thomas to the United States Supreme Court, President Bush has chosen the right controversy. The polemics of Mr. Thomas’s critics may serve to highlight the real issue that this nomination raises: Whether or not American courts will defend the fundamental principles of United States Constitutional law.

Opposition to Thomas has centered on his refusal, as Chairman of the federal Equal Opportunity Employment Commission, to promote group quotas in hiring. By so refusing, Thomas stood on firm Constitutional ground. During his tenure, the EEOC has sought to protect the rights of individuals, not groups, because Thomas understands that only the protection of individual rights can enable a people to govern themselves.

Individuals can govern themselves only as reasonable citizens—that is, as individuals participating with other individuals in a political community. Orwell’s word “groupthink” points to the obvious fact that groups do not, cannot really think at all. Without reasoned thought, without public deliberation as distinguished from demagoguery, no real self-government can occur. The American regime of representative government by the consent of the governed makes no sense unless we accept the Founders’ understanding of it: A means for governing the factional passions political life inevitably provokes by rewarding reasonable deliberation.

Judge Thomas’s principles differ sharply from those of nineteenth-century individualism. That individualism tended to dissolve into mere self-assertion, making reason the calculation of personal advantage. Thomas avoids this libertarianism in exactly the same way the Framers of the Constitution did, on the unalienable rights enunciated in the Declaration of Independence. Unlike a legion of contemporary law school professors, Thomas affirms that all human beings are “endowed by their Creator with certain unalienable rights,” and that the Constitution establishes a government whose sole purpose is to protect those rights by the means summarized in its Preamble, elaborated in its main text, and refined in its amendments.

To understand the vitriolic attacks on Thomas, we must appreciate the extent to which today’s interest groups, ‘Left’ and ‘Right’ (but mostly ‘Left’) have abandoned those Constitutional principles. What libertarians claim for the individual—unrestricted sovereignty with no real moral limitations—’leaders’ now claim for the groups they claim to represent. Whether this is a business lobby demanding preferential treatment or some association based on ethnic or social criteria, these ‘leaders’ reduce the concept of rights to desires. To them, ‘We have the right to what we want,’ really means, ‘What’s right is what we want,’ or even more simply, ‘We want what we want.’ This sort of thing deserves the name of socialist libertarianism, which is as much a contradiction in terms as “groupthink.” It uses the Constitution to further some goal-of-the-moment, while undermining the reasoned deliberation and natural law upon which the Constitution depends.

Unfortunately, this spirit of unthinking assertion pervades not only the interest groups but the government. Judges and legal scholars step forward rather to eagerly to claim that the law is what judges say it is, that the Constitution is what the Supreme Court says it is. Today’s ideologies compete to replace the principles of the American founding. The first casualty is the rule of law. Judges and interest groups reinforce each other’s power.

Clarence Thomas will refuse to play the interest groups’ game. They know that. They fear it. They fight to block his appointment.

To the best of my knowledge, for all the multiplication of political opinions, for all the ramping up of ideological passions, twentieth-century thinkers have yet to discover a single new political principle. The political significance of this century has been almost exclusively practical. We have witnessed a struggle between those animated by ideas popularized in the eighteenth century—particularly representative government respecting the unalienable rights of individuals—and mass ‘movements’ inaugurated in the nineteenth century, led by men and women who spurned natural law for ‘History,’ exalting some group (be it a race, a nation, or a class) over the rest of humanity—always, supposedly, for the good of humanity. Since the 1940s we have learned one simple thing from our many afflictions: The eighteenth-century men were right. They drew nearer to the truth than the men of the nineteenth century did. Philosophically there has been no progress, least of all in ‘Progressivism.’ In our military victory over rightist tyranny in the 1940s, and in our political and economic victory over leftist tyranny today, we have seen the vindication of the principles of justice in practice. As a result, the most formidable enemies of representative government and the rule of law today are home-grown.

Clarence Thomas defends the truths propounded by the American Founders, truths not relative to the Founders’ time and place but true for all times and for all places human beings live. His opponents merely update the errors of nineteenth-century ideologues. Because this struggle is not over, because one battleground is and will remain the American courtroom, and because we need judges who know how to be warriors for the rule of law, the nomination of Judge Clarence Thomas to the United States Supreme Court deserves confirmation by the United States Senate.