Saturday, May 16, 2009

Oliver Wendell Holmes, Supreme Court Justice

I had intended to post a short biography of Oliver Wendell Holmes (1841-1935), whose name inevitably pops up when Supreme Court justices are being discussed. He’s widely regarded as one of the greatest Supreme Court justices, and he served one of the longest terms (1902-1932). I found, however, that I couldn't stomach the man enough to spend time writing about him. You'll probably do better listening to Thomas Bowden's lecture on him. I did collect some interesting quotes that aren’t easily accessible on the Net, and that I think are worth sharing before I ditch my notes.

Holmes’s earliest claim to fame was The Common Law, published in 1881 and enormously influential. In it, he proposed a new way of looking at law. This excerpt from the first page of the first chapter is very explicit about Holmes’s belief that there is no such thing as law based on principles.

The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.” (Emphasis added; from the Project Gutenberg edition)

Those familiar with the philosophy of Pragmatism will recognize here its basic premises: that there are no fixed standards of truth, and what’s right is what works at any given time. I was surprised to read that Holmes’s instrumental definition of law (i.e., that law is that which courts do) was already apparent in an article Holmes published in 1870. That would make it precede by a year or two Holmes's participation in the Metaphysical Club, where C.S. Peirce and William James are generally considered to have founded Pragmatism (see Novick, Honorable Justice p. 426, n. 4). Whatever the sequence, Holmes’s premises were certainly consistent with Pragmatism by the time The Common Law was published.

And they remained consistent with it. In Gompers v. United States (1914), writing as a Supreme Court justice, Holmes again stated that laws change depending on their time and context:

The provisions of the Constitution are not mathematical formulas … they are organic living institutions transplanted from English soil. Their significance is vital, nor formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth. (quoted in Novick, ANB)

What if the laws are badly written or wrongly interpreted? Here Holmes’s comment to a fellow lawyer, John W. Davis, on the Sherman Antitrust Act:

Of course I know and every other sensible man knows, that the Sherman law is damned nonsense, but if my country wants to go to hell, I am here to help it. (quoted in Abraham, p. 160)

And, finally, here’s an excerpt from Holmes’s speech “The Soldier’s Faith,” given to Harvard’s graduating class in 1895. Theodore Roosevelt reportedly exclaimed, “By Jove, that speech of Holmes’s was fine,” and Roosevelt’s memory of it was apparently a factor in his decision to nominate Holmes for the Supreme Court in 1902. (See Novick, Honorable Justice p. 206.)

I’m happy to say that every soldier I’ve known would reject this view with furious indignation.

Behind every scheme to make the world over, lies the question, What kind of world do you want? The ideals of the past for men have been drawn from war, as those for women have been drawn from motherhood. For all our prophecies, I doubt if we are ready to give up our inheritance. … [W]ho of us could endure a world, although cut up into five-acre lots, and having no man upon it who was not well fed and well housed, without the divine folly of honor, without the senseless passion for knowledge outreaching the flaming bounds of the possible, without ideals the essence of which is that they can never be achieved? I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has little notion, under tactics of which he does not see the use.


Suggested Readings by Ayn Rand and Objectivist Scholars

  • Rand, Ayn. Objectively Speaking: Ayn Rand Interviewed, ed. Marlene Podritske and Peter Schwartz. Lanham, MD: Lexington Books, 2008. See especially pp. 56-57 (on the Supreme Court) and Chs. 9-10, on the American Constitution and on objective law.
  • Bowden, Thomas. “Oliver Wendell Holmes, Destroyer of American Law.” Available from the Ayn Rand Bookstore.
  • On Pragmatism, see “Pragmatism” in The Ayn Rand Lexicon (ed. Harry Binswanger) and Tara Smith, “The Menace of Pragmatism,” in The Objective Standard 3:3 (Fall 2008).
  • See also the references cited for Wanted: Supreme Court Justice.


Sources Consulted

  • Abraham, Henry J. Justices and Presidents. A Political History of Appointments to the Supreme Court. 3rd. ed. New York: Oxford University Press, 1992.
  • Novick, Sheldon M. Honorable Justice: The Life of Oliver Wendell Holmes. 1989.
  • Novick, Sheldon M. "Holmes, Oliver Wendell";; American National Biography Online Feb. 2000. Access Date: Mon May 04 2009 10:27:59 GMT-0400 (Eastern Daylight Time)

A Government Not of Laws, But of Empathy

For the upcoming vacancy on the Supreme Court, President Obama has announced that he will seek “somebody with a sharp and independent mind and a record of excellence and integrity.” But he also wants his nominee to be

someone who understands that justice isn't about some abstract legal theory or a footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. [emphasis added]

This is not a surprise: in The Audacity of Hope, Obama said that the capacity to understand others is “at the heart of my moral code.”

Obama cited as an example of a Supreme Court case where empathy would have been appropriate Ledbetter v. Goodyear, a wage-discrimination case. In 2007, the Supreme Court reversed a lower court’s ruling in favor of Ledbetter because she filed her suit after the statute of limitations had expired.

I failed to think immediately of a pithy but scathing comment on this, and Sal disapproves of me gnashing my teeth for too long. So I sent the idea of empathy as a requirement for a Supreme Court justice down to my subconscious to percolate. (Thank you, Jean.) And presently my subconscious said: What happened to a "government of laws, not men"? Isn't that in the Constitution?

In fact, it's not. John Adams, the second president of the United States, seems to have been the first American to advocate “a government of laws, not of men.” Adams rose to national prominence and became one of the most influential Founding Fathers because he was thoroughly versed in the history of law and was able to explain clearly how a proper government ought to function. His summary of his thoughts on this matter, Thoughts on Government, Applicable to the Present State of the American Colonies, was written in May 1776 at the request of his fellow delegates to the Continental Congress.

[Recent happenings] will convince any candid mind, that there is no good government but what is republican. That the only valuable part of the British constitution is so; because the very definition of a republic is “an empire of laws, and not of men.” That, as a republic is the best of governments, so that particular arrangement of the powers of society, or, in other words, that form of government which is best contrived to secure an impartial and exact execution of the laws, is the best of republics.

In Thoughts on Government, Adams set out a plan for a separation of powers, including an executive branch, a bicameral legislature, and an independent judiciary. Of the judiciary, he wrote:

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skilful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.

Many of the earliest state constitutions show the influence of Adams’s Thoughts on Government. The Massachusetts Constitution (1780), for example, established a balance of powers in which the executive and legislative powers were required to keep strictly to their own domains, and “the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The United States Constitution, drafted in 1787, echoes Adams’s Thoughts regarding the tenure of justices:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. (Article III, section 1)

The Constitution sets out no qualifications for justices of the Supreme Court, and only one requirement. According to Article VI, Clause 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.

This brings us back to Obama’s possible nominees, and whether empathy is a necessary or desirable trait in a Supreme Court justice.

What would showing empathy mean, for a Supreme Court justice? It would mean that he could rule according to his emotions, if he thought the law was harming someone who deserved better. It would mean that he could hold his emotions above the Constitution that he had sworn to uphold. It would mean that at his whim, he could overturn even a clearly written law that conformed with the Constitution in every respect.

In his professional role, a justice should be passionate about the Constitution he is sworn to uphold. But with respect to the particular people who come before him, he should be heartless. His feelings about them are not a proper standard of judgment. If we allow kindness a foothold, we also allow malice. If we allow either one, we have a government not of laws, but of men, and (as John Adams would surely have recognized) it does not matter whether the man is a king, a tyrant, or a judge.

If a person goes about his life and business on the assumption that by obeying the law, he will have the protection of the courts – then if a dispute arises, he must have his day in court, and a judge must decide if he is in the right, in strict accordance with the law.

The only alternative in a rational society is for parties who have a working arrangement to agree to binding arbitration in case of disputes. In that case, disputes are settled by an impartial outsider who may or may not act in strict accordance with the law. From arbiter, the Latin name for this impartial outsider, English derives the word “arbitrary,” which has come to mean random, capricious, or erratic. A Supreme Court judge who acted on empathy rather than strictly upholding the law would be acting arbitrarily. In doing so, he would make long-range planning of one’s personal or business life impossible. One would never know what action might be declared illegal, simply because a judge felt sorry for the person on the other side of the dispute.

President Obama lectured on constitutional law at the University of Chicago for eleven years. He has no excuse for not knowing that a judge who acts on empathy is violating the principles he swore to uphold.


Recommended Readings from Ayn Rand and Objectivist Scholars

  • Rand, Ayn. Objectively Speaking: Ayn Rand Interviewed, ed. Marlene Podritske and Peter Schwartz. Lanham, MD: Lexington Books, 2008. See especially pp. 56-57 (on the Supreme Court) and Chs. 9-10, on the American Constitution and on objective law.
  • See also the recommended readings for Wanted: Supreme Court Justice.

 Sources Consulted


Thursday, May 7, 2009

WANTED: Supreme Court Justice

Thank you for applying to become a member of the Supreme Court of the United States. If you've made it this far in the selection process, you have a record of personal integrity and professional competence. However, since this is a crucial leadership position and we expect you to be holding it for the rest of your life, we'd like to know more about your convictions and your philosophy. If we like what we hear, we'll call you to Washington for an interview.

1. What rights, privileges, or freedoms do American citizens have that you would want to protect in your Supreme Court rulings? The rights listed in the Bill of Rights? Those in Franklin D. Roosevelt's Four Freedoms speech? Those in the United Nations Declaration of Human Rights? Please elaborate by citing your rulings on such matters as free speech / censorship, property rights / eminent domain, abortion, and the Second and Ninth Amendments.

2. Are these rights, privileges, and/or freedoms immutable?  Tell us where you think they come from and what would make it acceptable for Congress or the Supreme Court to override them.

3. What is your belief about the nature of the Constitution? Is it an ever-evolving document whose interpretation should be based on the will of the people? Is it to be interpreted strictly according to the perceived intention of the Founding Fathers? Is it based on timeless principles that ought to be understood and applied to the present, or is it a historic document whose outmoded ideas need to be revamped as time goes by?

Bonus question: Oliver Wendell Holmes was one of America's most influential Supreme Court justices. Tell us what you think of the opinions he wrote for the Court.

Suggested readings by Objectivist scholars

Tara Smith, "The Need for an Active Supreme Court Justice." Op-ed.

Tara Smith, "How 'Activist' Should Judges Be?" (CD of a lecture), available at the Ayn Rand Bookstore

Thomas Bowden, "Supreme Disappointments." Op-ed.

Thomas Bowden, "Supreme Court Should Uphold Rights, Not Majority Sentiment in Ten Commandments Case." Op-ed.

Thomas Bowden, "Oliver Wendell Holmes" (CD of a lecture), available at the Ayn Rand Bookstore.

Saturday, May 2, 2009

Cuba & the U.S. (11 of 11): Why Cuba will probably not improve its relations with the U.S. too much; references

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary: Efficient dictators always make sure they have an enemy to distract their subjects.

Having said all this, I don’t think Cuba under the Castros will ever normalize relations with the U.S. For dictators such as Hitler, Stalin, and Fidel, there is an advantage to having their subjects paranoid about foreigners. The foreigners serve as the focus of hatred and fear, distracting the dictator’s subjects from the causes and effects of unbearable conditions at home. If the subjects had too much time to think about their situation, they might just decide to rebel against the dictator.

Statism—in fact and in principle—is nothing more than gang rule. A dictatorship is a gang devoted to looting the effort of the productive citizens of its own country. When a statist ruler exhausts his own country’s economy, he attacks his neighbors. It is his only means of postponing internal collapse and prolonging his rule. A country that violates the rights of its own citizens, will not respect the rights of its neighbors. Those who do not recognize individual rights, will not recognize the rights of nations: a nation is only a number of individuals.

Statism needs war; a free country does not. (Ayn Rand, “The Roots of War”)

To the Castro brothers, the United States has been a godsend: an enemy who is nearby, powerful, and yet exceptionally unlikely to invade the country, unless it suffers a massive attack first. Fidel and Raul Castro may try to get more money via trade or aid, but they will never welcome the U.S. as a friend.


Suggested Readings by Ayn Rand and Objectivist Scholars

Rand, Ayn. “The Cuban Crisis,” “How to Demoralize a Nation,” and “The Munich of World War III?” The Ayn Rand Column. 1991.

Rand, Ayn. “The Roots of War.” The Objectivist, June 1966; reprinted in Capitalism: The Unknown Ideal (Signet, 1986).

Schwartz, Peter. The Foreign Policy of Self-Interest: A Moral Ideal for America. 2004.


Sources Consulted

Aside from the speeches referred to in the text, see:

CIA World Factbook for Cuba: (accessed 4/27/09)

“Organization of American States” in Wikipedia.

Parmet, Herbert S. "Kennedy, John Fitzgerald"; ; American National Biography Online Feb. 2000. Access Date: Wed May 21 08:43:15 EDT 2008

Paterson, Thomas G. "Cuban Missile Crisis"; ;
The Oxford Companion to United States History, Paul Boyer, ed., 2001. Access Date: Wed May 21 08:41:58 EDT 2008

U.S. State Department, Background Report on Cuba: (dated 8/08, accessed 4/27/09)


Scholarly Sources Recommended by the Above

Blight, James, et alCuba on the Brink. 1993.

Chang, Laurence, and Peter Kornbluth, eds. The Cuban Missile Crisis, 1962. 1992.

Fursenko, Aleksandr, and Timothy Naftali. One Hell of a Gamble: Khrushchev, Castro, and Kennedy, 1958-1964. 1997.

Gleijeses, Piero. “Ships in the Night: The CIA, the White House, and the Bay of Pigs.” Journal of Latin American Studies 27 (Feb. 1995): 1-42.

Nathan, James, ed. The Cuban Missile Crisis Revisited. 1992.

Paterson, Thomas G. Contesting Castro: The United States and the Triumph of the Cuban Revolution. 1994.

White, Mark J. Missiles in Cuba: Khrushchev, Castro, and the 1962 Crisis. 1997. 

Cuba & the U.S. (10 of 11): Why would Cuba consider closer relations with the U.S.?

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary:  Improved relations with the U.S. would give Cuba more hard currency and the prestige of having “forced” the U.S. to back off a long-standing policy.

Socialist policies lead to weak economies. Increased trade with the U.S. would bring Cuba much-needed hard currency. Easing the restrictions on remittances would have the same effect, except that the Cuban government would not need to produce any goods in exchange. Remittances are estimated at $600 million to $1 billion per year, even though President Bush reduced the maximum permissible amount from $3,000 to $300. The government takes 10% of the remittance amount when converting it to pesos. If the dollars are spent in “dollar stores,” the prices of goods are often at least doubled. Again, the extra money goes to the government.

On a moral level, getting concessions from the United States would give Cuba the chance to boast of having made the United States back off. The Castro brothers are certain to put this spin on any rapprochement between the U.S. and Cuba. If Cuba is reinstated as a full participant in the Organization of American States, the same spin will be applied.

Cuba & the U.S. (9 of 11): Philosophical Principles re Foreign Relations with Cuba

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary: Cuba should be treated as an enemy because it has consistently and for decades espoused principles that are opposed to those of the United States, and has repeatedly threatened U.S. citizens and expropriated their property.

When Hugo Chavez of Venezuela harangued President Obama about the Bay of Pigs, Obama replied that he was only three months old at the time. In a press conference 4/19/2009, Obama said that he wanted Cubans to see that “we’re not dug in into policies that were formulated before I was born.” But as Santayana said, “Those who do not learn from history are condemned to repeat it,” and there are several important lessons to be learned from Cuban-American relations.

The first question to ask is: What is proper U.S. foreign policy with respect to any nation? In The Foreign Policy of Self-Interest: A Moral Ideal for America, Peter Schwartz stated the principle of a proper foreign policy:

In her system of ethics, Ayn Rand presented not only a validation of self-interest as man’s moral purpose, but also an analysis of what man’s self-interest entails. She demonstrated that one’s self-interest is achieved, not by “instinct” or by whim, but by acting in accord with the factual requirements of man’s life, which means: by living as a rational being. Since the concept of self-interest pertains fundamentally to the individual, the idea of a nations’ self-interest refers only to the political precondition of a person’s living rationally in a social setting, which means: freedom. Without freedom, man cannot pursue the values his life demands. Just as in ethics it is maintaining his own life that should be the individual’s ultimate purpose, in politics it is maintaining its own citizens’ liberty that should be the government’s ultimate purpose. … Freedom is the end to which all other political actions are the means. (p. 13-14)

Lenin (d. 1924), the first dictator of Soviet Russia, stated that “The capitalists will sell us the rope with which we will hang them.” The U.S. does indeed have a very bad record of trading with our sworn enemies: all too often, we have bartered long-term security for the sake of short-term trade. We sold food to Soviets, who then used their meager income to build weapons. We trained and armed  Islamic fundamentalists in Afghanistan, who defeated the Soviets and then turned their training and weapons on the country they had always called the “Great Satan.”

Schwartz describes the proper course of action toward nations that do not value freedom, and that threaten the freedom of Americans:

“Engagement” with our enemies does not make them into friends; it only makes them into stronger enemies. It provides them with the moral sanction they do not deserve and with the material support they could not have generated themselves. “Engagement” with the Soviets sustained them for over half a century; engagement with North Korea has enabled it now to brandish nuclear weapons against us.

The appropriate foreign policy toward such nations is the opposite of engagement: ostracism. Let these nations stand—or, more accurately, fall—on their own. We should stop sanctioning our own destroyers. We should stop helping them pretend they are moral, civilized nations. If they threaten us, the only message they merit is the same one that any domestic ciminial ought to receive from the police: drop your weapons or you will be overwhelmed by force. (ibid., p. 59)

The primary goal of American foreign policy should be to protect the lives, liberty, and property of American citizens. This takes precedence over trade, because one must be alive and free in order to trade. When we trade with Cuba, we fill the coffers of a recognized state sponsor of terrorism. It is likely that American dollars sent there as remittances or as payment for goods will work their way into terrorist pockets, with the approval of the Cuban government. In fact, given their hatred of the U.S. and all it stands for, there is no reason Cuba would not purchase nuclear missiles from North Korea or Iran and aim them at the U.S., as the Soviets tried to do in 1962.

We have an embargo on trade with Cuba not only because they have an ideology diametrically opposed to ours: we disagree with many countries with whom we don’t have trade embargoes. We have an embargo with Cuba because the present government thinks the U.S. is evil, and because Cuba is (yes, even after 50 years!) still a mere 90 miles away, and hence close enough to pose a serious danger for attacks by missiles or by naval forces. It would be extraordinarily short-sighted to help pay for the weapons with which our enemies can destroy us.

Cuba & the U.S. (8 of 11): Cuban Foreign Relations

If you prefer, you can read the whole Cuba report as a PDF by clicking here

.Summary:  Cuba’s friends are other totalitarian dictatorships and other communist or socialist nations. Raul Castro and the Cuban Constitution both condemn the United States.

One of the delights of Facebook is being able to check what friends you have in common before accepting a new friend. Who are Cuba’s friends, now that the Soviet Union is gone?

In a speech of 12/2/2006, Raul Castro referred to his “president and brother, Hugo Chavez,” the socialist dictator of Venezuela. As mentioned above, Chavez signed an agreement with Fidel by which Venezuela provides Cuba with heavily subsidized oil in return for goods and services.

In a speech of 7/26/2007, Castro mentioned “our brothers in Venezuela, Bolivia and Nicaragua, and our solid ties to China and Vietnam.” China recently invested $500 million in Cuba. In the same speech, Raul mentioned the Movement of Non-Aligned Countries, whose past presidents include Tito of Yugoslavia, Mugabe of Zimbabwe, and Fidel Castro of Cuba. Other members of the Movement include North Korea, Iran, Iraq, Vietnam, Syria, and Sudan. (Am I the only one who thinks their logo of a globe surmounted by an olive branch looks like a grenade?)

On the State Department’s list of state sponsors of terrorism, right there beside Iran, Syria and Sudan, is Cuba. It maintains relations with several guerrilla and terrorist groups and provides refuge for some of their members.

How does Raul Castro feel about the U.S.? In a speech of 12/2/2006, he noted that “the U.S. government, in the opportunistic manner characteristic of them, have stepped up their hostility and aggressiveness against Cuba to an unprecedented high, in the hope of economically suffocating the country and overthrowing the revolution by intensifying their subversive acts.” He refers to “Washington’s multimillion-dollar campaigns of disinformation, the blackmail and brazen interference.” In a speech of 7/26/2007, he refers to “3,478 victims of terrorist acts directly organized, supported or allowed to happen by the United States authorities,” and states that “There has been not one minute of truce in the face of the politics of the United States government, aimed at destroying the Revolution.” He describes the U.S. trade embargo as a “blockade” that “constitutes a relentless war against our people.” In a speech of 1/1/2009, he refers to the “unhealthy and vindictive hatred” of the U.S., and calls it “aggressive, treacherous and dominant.” In short, his attitude has not changed over the past few years, and indeed, one would not expect it to, given that the Cuban Constitution refers explicitly to “Yankee imperialism” (Preamble).

What points is Raul Castro willing to negotiate about? Back on 12/2/2006 Raul Castro publicly stated, “We take this opportunity to once again state that we are willing to resolve at the negotiating table the longstanding dispute between the United States and Cuba, of course, provided they accept, as we have previously said, our condition as a country that will not tolerate any blemishes on its independence, and as long as said resolution is based on the principles of equality, reciprocity, non-interference and mutual respect.”

That means: “We’ll accept your money and goods, but do not make any demands in return.”

Cuba & the U.S. (7 of 11): The Cuban Economy

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary:  The Cuban economy cannot operate without substantial foreign subsidies, and it is deeply in debt.

The Cuban economy is socialist, and in accordance with the Constitution, it is directed and planned by the state (Art. 9a). The state owns the means of production and operates under the principle “from each according to his capacity, to each according to his work” (Art. 14). Except for a few small farms, private ownership is banned. Workers are allowed to join one and only one union, whose primary duty is to ensure that the state’s production quotas are met. The expropriation of private property is authorized “for reasons of public benefit or social interest and with due compensation,” but the compensation takes into account “the economic and social needs of the person whose property has been expropriated” (Art. 25): no wealthy capitalists need apply. Today the Cuban government says that 76% of the labor force works for the government, although the U.S. State Department estimates the total at more like 93%.

In the early 1990s, the Soviet Union collapsed and stopped subsidizing its satellites and allies. Cuba lost a significant portion of its revenue (an estimated $4 to $6 billion annually), and entered what the Castro brothers called the “Special Period.” From 1989 to 1993 the country’s GDP dropped by an estimated 35%. Raul Castro is sometimes credited with proposing to revive the moribund economy by action on the Chinese model: lifting some restrictions on business, trade, and tourism while maintaining strict political control.

Then, in 2000, Venezuela’s Hugo Chavez—an admirer of Cuba’s socialist programs—signed an agreement by which Venezuela sent some 100,000 barrels of heavily subsidized oil to Cuba daily, in exchange for assorted goods and services. By 2001, the economic reforms of the “Special Period” were being revoked.

In 1986, Cuba defaulted on most of its international debt. It has not resumed payments, and therefore is ineligible for loans from institutions such as the World Bank. When the Republic of Cuba needs to borrow to purchase food, it must do it at short-term rates of up to 22%.

Cuba suffers dire shortages of basic goods. Raul Castro spent a substantial portion of his “21st Century Socialism” speech (7/26/2007) discussing in mundane, boring detail how milk could be more efficiently distributed. The Cuban government made headlines a few years back when it bought rice cookers to distribute to housewives. Buried in the text of the story was the fact that the rice cookers were distributed because of their low energy consumption. Demand for electricity was overloading Cuba’s Soviet-era electrical system to the point where blackouts were common, even in Havana.

When there are shortages, Cuban leaders are wont to demand more sacrifices and order more controls as the economy worsens. In Raul’s “21st Century Socialism” speech, he called for “organized work, control and dedication, day after day; systematic rigor, order and discipline, from the national level down to the thousands of places where something is produced or a service is offered.”

As always, the inefficient state-controlled economy has spawned an “informal” economy where buyers and sellers exchange scarce goods at mutually agreeable prices. It has been estimated that 40% of Cuban economic activity is on the black market.

The Index of Economic Freedom (compiled by the Wall Street Journal and the Heritage Foundation) rates economic freedom based on such factors as tax rates, tariffs, property rights and government size. This year it ranked Cuba 177th out of 179 countries in economic freedom—trailed only by Zimbabwe and North Korea.

Cuba & the U.S. (6 of 11): Individual Rights and Civil Liberties

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary:  Cuba is a repressive totalitarian dictatorship in which the rights of individuals are subordinated to the needs of the state.

Cubans have “the rights to assembly, demonstration and association” (Article 54), but “None of the freedoms which are recognized for citizens can be exercised contrary … to the existence and objectives of the socialist state, or contrary to the decision of the Cuban people to build socialism and communism” (Art. 62).

Free speech and a free press are guaranteed, but only “in keeping with the objectives of a socialist society.” The press, radio, television, cinema “and other mass media” are “state or social property and can never be private property” (Art. 53). The Constitution allows freedom of artistic expression “as long as its content is not contrary to the Revolution” (Art. 39d).

Only recently have Cubans been allowed to own cell phones, but the cost of wireless service is several months’ salary (a typical worker makes $17 per month), and must be paid in convertible pesos, which can be acquired only by those who have U.S. dollars. Computer ownership was recently legalized, but access to the Internet is severely restricted with respect to who can gain access and what sites are available.

The Constitution “recognizes, respects and guarantees freedom of religion” (Art. 8), but religious groups that do not register with the state are subject to official harassment and repression. Assemblies of more than three (three!) people—for religious meetings or any other purpose—are illegal without government permission.

Movement within Cuba is restricted. Police routinely stop cars to interrogate passengers. Dissidents are often sent from urban centers back to their home towns for years, on grounds that they are “socially dangerous.” The penalty for attempting to flee the island illegally by boat or raft is several years in prison. The permissions required to leave the country legally cost about three years’ salary. Since much Cuban immigration was illegal, it’s difficult to get an accurate tally of how many fled Cuba. The ballpark figures seem to be over 100,000 from 1960 to 1979, and another 125,000 during the Mariel boatlifts of 1980.

According to the Constitution, Cuba has only one political party—the Communist Party—and it is “the highest leading force of society and of the state, which organizes and guides the common effort toward the goals of the construction of socialism and the progress toward a communist society.” In the elections for the National Assembly held in 2008, the Communist Party won 98% of the vote. In the elections within the National Assembly for president, Raul won 100% of the vote. While membership in the Communist Party is not mandatory, it is required de facto for promotion or for holding any office.

The U.S. State Department estimates that there are some 200 political prisoners in Cuba and that another 5,000 people are or have been held on the vague charge of “dangerousness,” for which no proof is required. Police can detain without a warrant anyone accused of a crime against state security. Detainees can be held for years without a trial.

Two years of military service are required for both men and women. The current size of the armed forces is about 49,000, down from a peak of 235,000 in 1994, when Cuba was sending “advisors” to help Communist rebellions around the world. Since much of the Cuban army was funded by Soviet subsidies, the army’s shrinking size reflects financial considerations rather than a turn toward pacifism.

Cuba & the U.S. (5 of 11): Cuban Ideology

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary:  Cuba’s government today is explicitly socialist, as it has been for 50 years.

According to Cuba’s 1976 Constitution (rev. 1992), Cuba is explicitly socialist: it is “guided by the ideas of José Martí and the political and social ideas of Marx, Engels and Lenin” and has “the final objective of building a communist society” (Preamble). Further, “Cuba is an independent and sovereign socialist state of workers, organized with all and for the good of all as a united and democratic republic, for the enjoyment of political freedom, social justice, individual and collective well-being and human solidarity.” The Constitution states that “education is a function of the state and is free of charge” (Art. 39b) and that the state guarantees the right to free health care, including free dental care (Art. 50). Work is guaranteed (although not the career of one’s choice), and those who cannot work are guaranteed enough to live on (Art. 45).

In a lengthy speech of 7/27/2008 entitled “21st Century Socialism,” Raul Castro recounts the battles and advances of socialism. He talks the talk and walks the walk. There is no indication that he secretly desires major reforms, or that he would cheerfully give up his position as dictator.

According to Marx and Engels, socialism is a transitional stage between the horrors of capitalism and the bliss of communism—between the ownership of the means of production by a few private individuals, and the ownership of such means by the workers. In socialism the government owns the means of production, controlling and planning the economy to best serve the workers. In practice this means that there is no private property, and that every worker is employed by the state and is paid as the state decrees.

Ayn Rand, who grew up in Communist Russia, wrote:

When you consider socialism, do not fool yourself about its nature. Remember that there is no such dichotomy as “human rights” versus “property rights.” No human rights can exist without property rights. Since material goods are produced by the mind and effort of individual men, and are needed to sustain their lives, if the producer does not own the result of his effort, he does not own his life. To deny property rights means to turn men into property owned by the state. Whoever claims the “right” to “redistribute” the wealth produced by others is claiming the “right” to treat human beings as chattel. (“The Monument Builders,” Virtue of Selfishness 91)

How does the abstract idea of socialism play out in Cuba?

Cuba & the U.S. (4 of 11): Raul Castro's Rule, 2008 to present

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary:  Raul Castro operates on the same principles as Fidel.

Fidel isn’t in day-to-day control of Cuba any more; his brother Raul is. What do we know about Raul?

In 2006, 80-year-old Fidel, who needed surgery, temporarily handed political power to Raul, a spring chicken at age 76. In February 2008, a few days after Fidel announced that he would not run again for president of Cuba, Raul was unanimously elected president by the National Assembly (the Cuban equivalent of Congress). Raul now controls the military and the state security services, and is the Second Secretary of the Communist Party in Cuba.

Fidel, however, is still very much alive. He is First Secretary of the Communist Party and writes regularly for the official newspaper Granma, occasionally chastising Raul’s actions. (See, for example, the Wall Street Journal report of 4/23/09.) A substantial number of Cubans consider themselves not socialistas but  fidelistas—faithful followers of the charismatic leader of the Revolution. Fidel’s influence in Cuba remains very strong.

Raul fought alongside Fidel and Che Guevara during the Revolution. He was Fidel’s enforcer, supervising the summary execution of dozens of Batista’s supporters. In the decades that followed, he was a member of Fidel’s government, albeit a rather quiet one. There is no evidence that he has ever disagreed with Fidel’s actions in principle, nor that he has any desire to change the aims and methods of the Communist Party in Cuba.

Let us now look at what Cuba and Raul Castro stand for, working from the broadest abstraction—their ideology—to its implications for individual rights, civil liberties, the economy, and foreign relations.

Cuba & the U.S. (3 of 11): Fidel Castro's Rule, 1959-2008

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary: Fidel Castro ruled as a totalitarian dictator for almost 50 years, and during the Cold War had close ties with the Soviet Union.

On January 1, 1959, Fidel Castro took power in Cuba, after ousting Fulgencio Batista, the American-supported dictator of Cuba. (There isn’t much good to say about Batista, except that he was somewhat less destructive of individual liberties and the economy than Fidel.) Fidel set out to nationalize all businesses, including those owned by Americans. Furthermore, at a time when the Cold War was heating up and the Soviets were developing ever more sophisticated weapons, Fidel became a devoted comrade of the Soviets. Many other nations worldwide did the same, but Cuba was a mere 90 miles off the coast of Florida: the perfect launch site for a naval invasion or for missile bases, and hence an immediate and dire threat to American security.

In October 1960, the U.S. imposed an embargo on exports to Cuba. It also imposed severe restrictions on travel to the island and on the amount of money (“remittances”) that could be sent by the many Cubans who had settled in the U.S. to their families in Cuba. The U.S. broke diplomatic relations with Cuba in early January 1961. President Eisenhower contemplated sending a CIA-trained force of Cuban exiles to overthrow Castro, but by the time he left office in mid-January 1961, he thought that the exiles were not well-prepared enough to be successful.

President Kennedy thought otherwise. In April 1961 he was just finishing his first 100 days in office, the darling of the media and much of the American public. He authorized an expedition of 1,400 exiles to the island, but tried to conceal U.S. involvement with it. The latest-model American fighter jets stayed in neutral air space while the exiles were strafed by Soviet-made jets and run down by Soviet-made tanks. The Cuban people did not rise up to support the exiles. Within three days, the expedition ran out of ammunition and its members were captured or killed near the Bay of Pigs, where they had first landed.

Eighteen months later, in October 1962, JFK confronted Castro and Soviet Premier Khruschev. Soviet troops were helping Cubans construct missile silos capable of launching nuclear warheads that could easily reach Washington, D.C., or anywhere in the American South and Midwest. The president demanded that the missiles (which were in transit) not be landed and installed.  After many tense days, Soviet Premier Khruschev backed down. This confrontation is perhaps the closest the Cold War ever came to a Hot War.

From the 1960s through the 1980s, Cuban soldiers and advisors were the heavily subsidized fighting arm of Soviet-style Communism as it expanded in Africa, Asia and Latin America. As the Soviet Union collapsed in the late 1980s, Cuba lost billions of dollars in subsidies and fell into what was euphemistically called the “Special Period.” In an attempt to revive the economy, Fidel instituted some economic reforms regarding private ownership of farms and small businesses. These reforms were quickly phased out after 2000, when he gained the economic support of Hugo Chavez in Venezuela.

This action is worth noting because it’s a reminder that time has not mellowed Fidel: he has no inclination to allow capitalism a toehold in Cuba.

Cuba & the U.S. (2 of 11): Upcoming issues

If you prefer, you can read the whole Cuba report as a PDF by clicking here.

Summary: The embargo on trade with Cuba and Cuba’s status in the O.A.S. are under discussion.

Two issues are upcoming in relations between Cuba and the U.S.: the trade embargo imposed by the U.S. in 1960 (with its related issues of restrictions on travel to Cuba and restrictions on money sent there), and Cuba’s status in the Organization of American States. Both were raised in April at the Summit of the Americas in Trinidad and Tobago. The O.A.S. will meet June 2-3, 2009.

By executive order, Obama has already relaxed restrictions on travel to Cuba by Cuban-Americans, and has increased the amount of money they can send to family members in Cuba. He has stated that before making further concessions, he hopes for reciprocal acts from Cuba: for example, the release of political prisoners and the reduction of the fees charged by the Cuban government for converting American dollars to Cuban currency. Discussion of the decades-long U.S. embargo of trade with Cuba seems likely. Since Congress must approve the lifting of the embargo, we can expect to see Obama attempting to build public support for such an action.

The other issue up for discussion is Cuba’s status in the Organization of American States. The treaty establishing the O.A.S. was signed in 1948. Like NATO, the organization was conceived as a defensive alliance to prevent the spread of communism. In 1962, after Castro took power in Cuba, the O.A.S. voted that Castro’s Marxist-Leninist ideology made Cuba’s goals incompatible with those of the O.A.S. The resolution stated that while the current government was in power, Cuba would retain its membership in the O.A.S. but would not be allowed representation or participation. This O.A.S. resolution has been challenged several times in the past decades, and Hugo Chavez of Venezuela has said he will raise it again at this year’s O.A.S. meeting, June 2-3 in Honduras.

Let’s put these two issues in perspective by asking: Why was the embargo originally imposed in 1960? Is the situation now essentially different? What are the principles that should be considered when analyzing this situation and choosing a course of action?

Relations between Cuba and the U.S. (1 of 11)

I'll be posting here as a multi-part blog entry a report on relations between Cuba and the U.S., particularly re the raising of the embargo and Cuba's status in the Organization of American States. If you prefer, you can read the whole report as a PDF by clicking here.


What issues are upcoming between Cuba and the U.S.? Summary: The embargo on trade with Cuba and Cuba’s status in the O.A.S. are under discussion.

Fidel Castro’s Rule, 1959-2008. Summary: Fidel Castro ruled as a totalitarian dictator for 49 years, and during the Cold War had close ties with the Soviet Union.

Raul Castro’s Rule, 2008 to present. Summary:  Raul Castro operates on the same principles as Fidel.

Cuban Ideology. Summary:  Cuba’s government today is explicitly socialist, as it has been for 50 years.

Individual Rights and Civil Liberties. Summary:  Cuba is a repressive totalitarian dictatorship in which the rights of individuals are subordinated to the needs of the state.

Economy. Summary:  The Cuban economy cannot operate without substantial foreign subsidies, and is deeply in debt.

Foreign Relations. Summary:  Cuba’s friends are other totalitarian dictatorships and other communist or socialist nations. Raul Castro and the Cuban Constitution both condemn the United States.

Philosophical principles. Summary: Cuba should be treated as an enemy because it has consistently and for decades espoused principles that are opposed to those of the United States, and has repeatedly threatened U.S. citizens and expropriated their property.

Why would Cuba even consider closer relations with the U.S.? Summary:  Improved relations with the U.S. would give Cuba more hard currency and the prestige of having “forced” the U.S. to back off its long-standing policy.

Why Cuba will probably not improve relations with the U.S. too much. Summary: Efficient dictators always make sure they have an enemy to distract their subjects.

Suggested Readings by Ayn Rand and Objectivist Scholars

Sources Consulted

Other Recommended Readings

NOTE: Most of the statistics in this report come from the U.S. Department of State’s 2008 Background Report on Cuba (dated August 2008) and the CIA World Factbook entry for Cuba (last updated 4/23/2009).


Friday, April 24, 2009

Piracy and the United States

Piracy is “The action of committing robbery, kidnap, or violence at sea or from the sea without lawful authority” (OED). The essentials are that piracy takes place on the high seas or along the coast, and that the pirates are acting without government authorization.

For centuries piracy has been considered a crime against mankind, and any nation has had the right to pursue pirates and kill them in battle. Since the proper function of a government is to protect the lives and property of its citizens, it is perfectly justifiable for government whose citizens are threatened by pirates to send naval forces to suppress piracy in international waters, or to attack pirates’ safe havens in any country that permits such havens to exist.


Piracy after the Revolutionary War, ca. 1783-1797

Ships sailing to and from America have been subject to piracy ever since the British colonies began importing and exporting goods. Before the Revolutionary War, the British navy kept piracy under control. After the peace treaty was signed with Great Britain in 1783, the United States chose not to maintain any standing military forces. After all, the presence of a standing army had been one of the grievances listed in the Declaration of Independence. The newly formed U.S. government, deeply in debt and with little revenue, disbanded the Continental Navy and the Continental Marines as well as the Continental Army.

However, the lack of a navy made American shipping vulnerable to attack. At the urgent request of New England merchants, the U.S. Navy was reestablished in 1794, and six ships were commissioned to operate in the Mediterranean. Three ships were completed by 1797. The following year, the Marine Corps was reestablished.

Meanwhile, American ships were being attacked by two of her best trading partners, France and Britain, who were engaged in the Napoleonic Wars (1799-1815). The U.S. tried to negotiate peace with France so that French privateers would stop attacking American ships. (Privateers are armed vessels - often former pirate ships - that in time of war are given government authorization to attack enemy ships.) French foreign minister Talleyrand refused to negotiate unless he was given an enormous bribe and a huge loan (the infamous XYZ Affair, 1797). Apprised of Talleyrand’s demands, Chairman of the House Ways and Means Committee Robert Goodloe Harper declared that the U.S. would pay “millions for defense, but not a penny for tribute” - a line often mistakenly attributed to Jefferson. Attacks on American ships by the French and British continued sporadically throughout the Napoleonic Wars, and helped provoke the War of 1812 between Britain and the U.S.


Barbary Pirates, ca. 1801-1815

The Barbary Coast included the north coast of Africa from Gibraltar to Egypt: Morocco, Algeria, Tunisia, and Tripoli. During the 19th century these territories were nominally under the rule of the Turkish Empire. In fact, they were fiefdoms run by military strongmen, and their inhabitants practiced piracy as a way of life, as they had for centuries. The pirates preyed on merchant ships, selling the cargoes and ransoming or enslaving the passengers and crew. They also raided coastal towns in Italy, Portugal and Spain, capturing and enslaving thousands of inhabitants. At least as early as the 17th century, European powers had paid tributes - i.e., protection money - to keep pirates from attacking them. The newly forged U.S. began paying protection money as early as 1795, by a treaty with Algiers.

Criminals being … well, criminals, the pirates did not always abide by their agreements. American shipping continued to be attacked by one or the other of the military fiefdoms along the Barbary Coast. In 1801 Tripoli declared war on the U.S. and seized several American vessels - the beginning of the First Barbary War, or Tripolitan War (1801-1805). In response, an American naval force blockaded Tripoli and damaged some pirate ships in the harbor. The landing by Marines at nearby Derna (hence “to the shores of Tripoli” in the “Marines’ Hymn”) frightened the ruler of Tripoli into signing a peace treaty. The treaty abolished protection payments, although the U.S. agreed to pay $60,000 to ransom captured Americans.

Protection money continued to be paid to thugs elsewhere along the Barbary Coast, and the thugs continued to attack American ships. In 1815, the U.S. declared war on the worst offender, Algiers, beginning the Second Barbary War (Algerian War). An American naval force dispatched from New York “persuaded” the ruler of Algiers to sign a treaty by which American property would be restored and protection payments would cease. A U.S. squadron remained in the Mediterranean to ensure the safety of American ships.

After the final defeat of Napoleon in 1815, Europeans, too, turned their attention to suppressing pirates. Piracy on the Barbary Coast was finally eradicated after France conquered Algiers in 1830. By that time, the increasing technological sophistication of American and European fleets (steam-powered ships, advanced weaponry) made had made it very difficult for pirates to attack more civilized nations and survive.


Latin American Pirates, ca. 1800-1827

During the Napoleonic Wars, while the Spanish crown was preoccupied with battling the French, its colonists in America saw a chance to achieve independence. In many of the colonies, the battles between rebels and authorities led to near anarchy.

Not surprisingly, there was an explosion of piracy, particularly in the West Indies, which offered a multitude of havens on islands with many harbors and little government control. Often under the pretense that they were part of “patriot navies,” pirates repeatedly attacked American ships and murdered their crews. In 1823-1824, Congress dispatched a naval squadron to suppress the pirates, which was accomplished by 1827. At that point most of the Spanish colonies had achieved independence, and their new governments were beginning to exert some control over their coastlines.


Historical Lessons

Merchant vessels are the natural prey of pirates, but pirates seldom want the exact goods they capture. Hence pirates require not only ships, but havens on shore where they can exchange stolen goods for money or other goods.

From this brief survey of U.S. dealings with pirates, several points are clear:

1) Piracy flourishes when nearby governments either encourage piracy or are too weak to suppress it. In either case, diplomatic negotiations with the government in whose waters the pirates operate are ineffective at eliminating piracy.

2) Suppressing piracy requires not only capturing or destroying pirate ships, but denying the pirates havens where they can sell stolen goods and resupply their ships.

The proper function of a government is to protect the lives and property of its citizens. It is perfectly justifiable for government to send naval forces to suppress pirates in international waters, or to attack pirates’ safe havens in any country that permits such havens to exist.


Modern Piracy: Somalia

Somalia has a 2000-mile shoreline along the Gulf of Aden, part of the shipping route from the Mediterranean via the Suez Canal and the Red Sea to the Indian Ocean. Somalia follows the same pattern for piracy that we have seen in Barbary and the West Indies. The Somali government is for practical purposes nonexistent, and has been for many years: see my background report on the history and present condition of Somalia. Judging from the CIA Factbook entry on Somalia, the situation there has not changed much in the years since 1994, when President George H.W. Bush’s decision to send troops to Somalia prompted me to research the state of that country.

As in the 19th century, the nations whose shipping is at risk have the right to protect their citizens by dispatching ships and troops to suppress pirate activity.


Relevant Writings by Ayn Rand and Objectivist Scholars

On the proper role of government as a protector of rights and property, see Ayn Rand, “The Nature of Government,” in The Virtue of Selfishness.

On the development and implementation of American foreign policy immediately following the Revolutionary War, with comments on French privateers, the XYZ Affair, the Napoleonic Wars and the Barbary pirates, listen to Eric Daniels, “The History of America – Part 2, Making a New Republic (1763-1836),” Lecture 4 (available from the Ayn Rand Bookstore).

Ayn Rand’s moving tribute to the U.S. military - directed at the cadets at West Point, but equally applicable to the Navy and Marines - is the title essay in Philosophy: Who Needs It (Bobbs-Merrill, 1982), pp. 12-13.


Sources consulted

“Barbary Wars” and “Pirate and Piracy,” 1911 Encyclopedia Britannica, and

Norris, Walter B., “Barbary Wars,” and Honor Sachs & George Wycherley, “Piracy,” in Dictionary of American History (3rd ed., Thomson Gale, 2003), 1: 415 and 6: 359-60.

Weeks, William Earl. “Barbary Wars”; ; The Oxford Companion to United States History, Paul Boyer, ed., 2001. Access Date: Fri Apr 24 2009 09:34:52 GMT-0400 (Eastern Daylight Time) 

Re American laws on piracy of 1790, 1819, and 1847, see

Scholarly works cited by the above

Note: I can’t vouch for the content of these.

Bromley, John S. Corsairs & Navies, 1660-1760. History Series. London: Hambledon Press, 1987.

Chidsey, Donald Barr. The Wars in Barbary: Arab Piracy and the Birth of the United States Navy. NY: Crown, 1971.

Kitzen, Michael L. S. Tripoli and the United States at War: A History of American Relations with the Barbary States: 1785-1805.  Jefferson, NC: McFarland, 1993.

Lane, Kris E. Pillaging the Empire: Piracy in the Americas, 1500-1750. Armonk, NY: Sharpe, 1998.

Marley, David. Pirates & Privateers of the Americas. Santa Barbara: ABC-CLIO, 1994.

Nash, Howard Pervear. The Forgotten Wars: The Role of the U.S. Navy in the Quasi War with France and the Barbary Wars 1798-1805. South Brunswick, NJ: A.S. Barnes, 1968.

Swanson, Carl E. Predators & Prizes: American Privateering and Imperial Warfare, 1739-1748. Studies in Maritime History. Columbia: U. of South Carolina Press, 1991.

Tucker, Glenn. Dawn Like Thunder: The Barbary Wars and the Birth of the U.S. Navy. Indianapolis: Bobbs-Merrill, 1963.