How The International Subtleties within Nancy MacLean’s Democracy in Chains Explain U.S. Extraterritoriality
By: Alina Veneziano
December 21, 2019
This short study uses Nancy MacLean’s Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America to trace the United States’ use of extraterritoriality as a regulatory tool and examines the pervasiveness of ideology on this practice. Ideological biases permeate throughout U.S. history and can affect various aspects of decision-making and, therefore, the law, in such areas as state autonomy or the degree of control the U.S. government should have over American society.
MacLean’s book takes a domestic perspective. It follows the successes and failures of one man who stealthily implements and fosters libertarian ideals in an effort to regain lost power. In addition to summarizing the main points of her book, this study highlights significant domestic movements and their local, domestic, and international effects. As will be demonstrated, it is surprising and revealing how her observations coincide with international developments.
Going to the Domestic Root of the Problem
Extraterritorial regulation is not a recent phenomenon, but its uses, justifications, and methods have changed dramatically throughout history. Differing views on this practice are based on international concerns. However, the true motivating factors behind past and present U.S. extraterritorial decision-making—political motivations at the domestic level—are far more revealing. A prominent focus of this study will be the prevailing domestic considerations at the time extraterritorial regulatory decisions are made. Specifically, the differences in the scope and extent of extraterritorial regulation depend on how the United States views the following notable issues: (1) who should control U.S. democracy to affect societal change (the majority versus the wealthy minority); (2) how much control the courts should have to decide local, national, and international cases (justice for the individual versus state autonomy); (3) how powerful the government should be or should become (strong versus weak central government); (4) whether more control over certain goods should be placed in the hands of individuals or the government (socialized or collective tenets versus privatization).
Extraterritoriality is highly dependent on the status of each of these four issues, which demonstrate the potential depth of certain constraints on its use. Extraterritoriality is not based on international concerns. It is not based on a fear by the United States of its global partners, nor by skepticism of the use of extraterritorial regulation. This goes even further than a general reluctance by the United States to interfere in global affairs. The origins of extraterritoriality arise from deep within the domestic sphere and can even be traced locally to a deliberate master plan to drastically limit the government and, in turn, privatize as many features of U.S. society as possible, constraining the judicial system and, therefore, democracy itself. These origins can be pinpointed to the inner workings of several men, starting in the 1950s and 1960s. Nancy MacLean, Professor of History and Public Policy at Duke University, conducted an extensive analysis in her book, Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, in which she traces the origins back to local politics in the early 1950s.
A brief background of the foundation of her argument is useful. After Brown v. Board of Education II ordered states to desegregate schools with “all deliberate speed”1Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955). in 1955, state officials from Virginia were furious and took action to resist its force and effect. The president of the University of Virginia, Colgate Whitehead Darden, Jr., worried intensely for the future of states’ rights after Brown II.2See Nancy MacLean, Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America xv (Penguin Random House LLC 2017). He met with great appreciation a proposal by young economist James McGill Buchanan, a Tennessee native, which aimed to “deal with the incursion on states’ rights represented by Brown.”3Id. Buchanan’s idea was to create a center at the University of Virginia, with Darden’s help, devoted to theories of political economy and social philosophy which, through the dissemination of certain ideas, would undo Brown’s effects.4Id. at xvi. This program started in 1956 at the University of Virginia and later relocated to George Mason University, where Buchanan became a professor. Id. at xxi.
The immediate effects of Brown included more power for the courts to adjudicate individual rights and, correspondingly, less deference afforded to the states. For example, state suppression of African-American participation in the political process was a prominent example of inequity at the time, and the courts and Congress had worked to remedy it.5Id. at 74-75. Such domestic developments at the time gave American society work-study programs, clean air and clean water laws, and the Voting Rights Act of 1965, among other accomplishments.6Id. at 92. The overall theme of this era had been “basic fairness and equal treatment under the law.”7Id. at 75.
This era forced southerners such as Darden and Buchanan to confront the harsh reality of “[s]tates’ rights… yielding in preeminence to individual rights” and the ominous possibility of “federal meddling.”8Id. at xv-xvi. Instead of viewing the trends of this era as “advancement,” they saw it as a “loss,” particularly—starting with the New Deal and continuing to the civil rights era—a loss of property rights protections.9Id. at 75-76. The South faced internal struggle and fear that the people in the North were going to tell them “how to run their society.”10Id. at xiv. To them, Brown was not a ruling that ended segregation in American schools, but was instead something “personal” and nothing short of pure “coercion.”11Id. If everyone, including the wealthiest, could not come to a consensus on what they wanted from the government, then any action constituted coercion and a “violation of the liberty of individual taxpayers.”12Id. at xxiv.
To this day, Buchanan’s legacy remains, which Nancy MacLean articulates as attempts “to undo democratic governance.”13Id. at xvii. This was to be accomplished via reductions in the “authority and reach of government,” through the joining of individuals and the creation of social movements.14Id. at xvii, xxiv. But does this embody the democracy that characterizes the United States? The simple answer is that it does not. MacLean points out that U.S. society is not, nor has it largely ever been, categorized by a political debate between conservatives and liberals.15Id. at xxix-xxx. Instead, a group exists among the conservatives that aims to keep private property away from the government and to vest more ownership in the hands of corporations.16Id. at xxx. This is the present-day libertarian view and operates under the guise of “liberty.”17Id. But what does liberty mean? To Buchanan and his supporters, it meant a fight against the federal government and against coercion from outsiders.18Id. at 61.
In the Beginning: 1960s-1970s in the United States
It is always with dismay that one mentions that the United States was once a land of extreme inequality and slavery. At the outset, the United States was dominated by a set of views held by people with property, which perpetuated these schemes of injustice aimed to stifle democracy and, with it, the federal government.19Id. at 10-11. Can racial and class dominance ever be appropriately squared with federal non-intervention?20Id. at 11. “[T]he notion of unwarranted federal intervention has been inseparable from a desire to maintain white racial as well as class dominance”. Id. The federal government was and is the only institution powerful enough to prevent and defeat these injustices. However, there were some that felt the need to prevent government interference from taking place. As a private mission between Buchanan and Darden, the Thomas Jefferson Center for Political Economy and Social Philosophy at the University of Virginia had begun with great promise.21Id. at 45. Buchanan and political economist Warren Nutter had even made the case for the “unlimited privatization of education” to combat Brown.22Id. at 65. Their plan, based on economic analyses, described public education as a “monopoly,” which “lacked adequate competition” and “had no incentive to improve.”23Id. at 66. Private education, as Buchanan and Nutter contended, promoted competition for student autonomy, and operated “without government interference.”24Id. To them, compliance with the mandates of federal courts decisions would be akin to “bowing to federal coercion.”25Id. at 67. Buchanan strongly believed that the market was good and politics was bad.26Id. at 96. For example, he believed that violence on campus was simply a reminder that taxpayer-funded public resources were destructive.27Id. at 102.
Buchanan is best known for advancing the public choice theory. The public choice approach, put forward by Buchanan and Gordon Tullock in 1962, promoted the use of economics to deal with every problem faced by society.28Id. at 186. In The Calculus of Consent, they promoted the era of the Lochner and Plessy decisions as a point in history in which economic liberty was protected and discriminatory legislation, such as graduated income taxes, was disallowed.29Id. at 79-80. The goal was to transform the system of public universities in the United States into a system of “corporate-style entities.”30Id. at 103. In Buchanan’s opinion, these universities were not supposed to be considered public resources and, because society viewed them as such, they had no value.31Id. at 104. Had Buchanan’s view materialized, the United States would have returned to an era where corporations completely dominated workers, stifling representation and democracy, and impeded the courts’ ability to intervene on state action.32Id. at 80. As MacLean points out, this plan would have had the unfortunate consequences of educating fewer Americans, particularly those with lower incomes.33Id. at 105.
Buchanan had no success in the 1960s and 1970s, even with the generous monetary support of the Volker Fund.34Id. at xvii, 84. “Buchanan’s team had no discernible success in decreasing the federal government’s pressure on the South…”. Id. at xvii. The reasons for his failure are speculative, but one compelling factor is that he was fighting against the Warren Court and its ideals. The Warren Court was a significant period in Supreme Court history best known for its rulings on individual rights, civil liberties, and personal autonomy, which characterize the ideals of the American people.35See Morton J. Horwitz, The Warren Court And The Pursuit Of Justice, 50 Wash. & Lee L. Rev. 5, 5-6 (1993). Legal liberalism was associated “with idealism, the individual, civil rights, and a concern with justice,” while the conservative party was “tarred with the brush of self-interest, unseemly ties to business and other large concentrations of power, and a lack of concern for racial justice.”36See Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law 267 (Princeton University Press 2008).
Behind the Guise of Words and Actions Before the Year 2000
Democracy has long been something cherished by the people of the United States. The people’s ability to dictate “by majority rule what they wanted their elected officials to do and how to tax for it” enables a free and prosperous America to flourish.37See MacLean, supra note 2, at 7. By the 1970s, America had been working hard to successfully provide this environment for its people.38Id. at 74. But, as democracy became more inclusive, its effects became inconsistent with the goals of those who wanted economic liberty.39Id. at 7.
As Buchanan saw it, a truly free society was one where the government was so weak that it would be nearly impossible for it to restrain an individual’s ability to become wealthy or to take some of that wealth in the form of taxes.40Id. at xxiii. But as mentioned, the conservative movement did not take hold in this era. Instead, improvements such as better schools and new textbooks thrived.41Id. at xxi. But the question remained: who would pay for these improvements in the United States? Instead of viewing the taxation which paid for these features as a tool to “advance social justice or the common good,” Buchanan saw it as an act of “force,” through which the government immorally stole “the fruits of another person’s efforts.”42Id. at xxiii. Those sharing the same views as Buchanan have likened the system of taxation based on ability to pay to discrimination and socialism.43Id. at 53. Buchanan traces this view back to the Great Depression, to which he attributes “the rise of unacceptable intrusions on liberty.”44Id. at 148. But as MacLean points out, his arguments neglected to consider whether the Great Depression would have been as devastating had inequality not been so extreme at that time.45Id.
Thus, Buchanan’s failures in this era piled up quickly. The Watergate scandal in 1972 was devastating to the conservative party.46Id. at 115. The liberal expansion was underway. At this time, businesses resented the judiciary “for legitimizing and accelerating the expansion of the federal regulatory state.”47See Teles, supra note 36, at 2. This judicial activism was despised by the conservative party, the members of which were “drawn together by a shared opposition to liberal judges, professors, and public interest lawyers and by a unified call for ‘strict constructionism’ and ‘judicial restraint.’”48Id. Regardless, the judicial system in the United States seemed to finally stand for the ideal that courts can and will step in to correct societal injustices without infringing on states’ private domains.
Additionally, American businessman and billionaire Charles Koch became quickly attracted to Buchanan’s work in the 1970s. Koch funded Buchanan’s research and founded the Cato Institute, which was a center devoted to researching libertarianism and free market ideals in America. The motivating factor behind the generous contributions from Koch was to “save capitalism from democracy—permanently.”49See MacLean, supra note 2, at xxii. The two aimed not to influence legislation but to change the nature of it, to create a weak government in order “to free up capitalism.”50Id. at xxvii. Their philosophy was heavily influenced by John C. Calhoun, a South Carolina statesman, political strategist, and former Vice President who espoused extremist views, such as the superiority of private rights and the propriety of a veto power to protect the minority elite from the majority decision-making prevalent in a democracy.51Id. at 1. “[G]overnment, for someone like Calhoun, was there to protect property rights, even at the expense of the rights of others to freedom of speech and movement”. Id. at 5. To Calhoun, capitalism meant “total liberty,” whereas the federal government symbolized “potential abuse.”52Id. at 9. Such extreme views did not go unnoticed. Buchanan’s thesis would be rewarded with the Nobel Memorial Prize in Economic Sciences in 1986.
Fears of the majority and democracy, as exhibited by Calhoun, Koch, Buchanan, and their successors, appear to be based on nothing more than the fear of a government that people like them could not control to their benefit.53Id. at 10. This was not a fear of liberalism, as Buchannan saw it, but instead a fear of “socialism,” which was prevalent in the 1990s.54Id. at 196. But these fear-based attempts to change the fate and status of American democracy continued to fail, as Americans were “not ready, when they learned that freed markets would leave them with sole responsibility for their own fates, to give up their Social Security and Medicare, their public schools, and their government-backed air, water, and earth protections.”55Id. at 192. Unfortunately, however, some of their views did gain traction during this era. For instance, Americans were not particularly concerned with fossil fuel damage to the environment and certain libertarian views were adopted, even internationally.56Id. at 217. Buchanan’s ideas guided the Pinochet regime in Chile after Pinochet had overthrown the socialist, Allende. Id. at 154-55.
After the 2008 recession, more and more courts began to avoid deliberating cases that involved transnational issues. For example, sometimes courts would decide cases against the express intent of Congress using pretextual rationales.57See generally RJR Nabisco, Inc. v. European Cmty., 136 S.Ct. 2090 (2016) (holding that RICO’s private right of action does not apply extraterritorially unless the plaintiff proves domestic injury despite the language of the statute, which reads “interstate or foreign commerce”). This behavior led Congress to pass statutory amendments reversing these judicial decisions.58See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 929P(b), 124 Stat. 1376, 1865 (2010); Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010) (After Morrison, Congress had inserted Section 929P(b) into Dodd-Frank in an attempt to reverse the implications of the decision). See also 42 U.S.C. § 2000e-1 (2019); 42 U.S.C. § 12112(c)(1) (2019); EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) (Aramco) (Congress amended Title VII and the ADA after Aramco to allow for the extended protections of these laws to U.S. nationals who are employed in a foreign state); 29 U.S.C. § 623(f)(1) (2019); Cleary v. United States Lines, Inc., 555 F. Supp. 1251 (D.NJ. 1983) (Congress also amended the ADEA after Cleary to allow for the extraterritorial application of the ADEA to U.S. nationals employed in a foreign state). Domestically, this harms the separation of powers principle and the integrity of the U.S. government. Internationally, this creates obstacles for interstate harmonization and negatively impacts the reputation of the United States. MacLean describes this practice of weakened checks and balances—something that continues today—as one of “altered interpretation among sitting judges followed by constitutional amendment”.59See MacLean, supra note 2, at 224.
As the values of democracy entered the international realm via the numerous civil society organizations that have aided development through “foreign aid, humanitarian relief and a variety of other internationally supported services,”60See John Gerard Ruggie, American Exceptionalism, Exemptionalism and Global Governance, in American Exceptionalism and Human Rights 304, 313 (Michael Ignatieff ed., 2009). the conservatives, or “neoconservatives,” in the United States easily perceived the projected path of U.S. policy and acted swiftly to construct a “defense around American institutions against international encroachment.”61Id. at 325. Furthermore, the beginning of the 1990s started a period of a “more unrestrained exemptionalist opposition to global governance.”62Id. at 306. This is the precise reason the United States had found it necessary to withdraw from international law. Should the leadership of the United States be so “utterly disdainful of international public opinion,”63Id. at 337. then the people of the United States will have no choice but to be forced to face the consequences caused by the popular groupthink at the time.
The Turn of the Century: The Battle of the Ideologies
It may have seemed as though conservative ideology was taking hold at the turn of the century. This is demonstrated by U.S. withdrawal from the international realm—such as its withdrawal from the Rome Statute of the ICC—and through subtle techniques by the judiciary, such as imposing additional standards on transnational cases or adhering less to congressional intent.64See generally RJR Nabisco, supra note 57. These actions by the United States have been heavily criticized as counterproductive to international cooperation and harmful to foreign relationships.65See Bartram Brown, U.S. Objections to the Statute of the International Criminal Court: A Brief Response, 31 N.Y.U. J. Int’l L. & Pol. 855, 891 (1999) (“Positive engagement with the ICC can serve the U.S. national interest by improving the quality and effectiveness of the emerging institution, by cementing a positive U.S. relationship with it, and by demonstrating U.S. leadership . . . .”).
On a more domestic level, libertarian goals were still underway. Take Social Security as an example. The libertarian objective is simple: privatization. According to those promoting this view, the privatization of Social Security would sever citizens’ connection to the government, weaken the desirability of collective organizations, and make it simpler for capitalists to lobby for change.66See MacLean, supra note 2, at 181. Consider also the aftermath of the 2008 recession. The United States will continue to feel the aftershock of the 2008 recession for decades. This downturn is particularly distressing considering that many elites not only did not lose money in the recession but may have increased their wealth, while the rest of society was left to bear the consequences.67See G. Robert Blakey & Michael Gerardi, Eliminating Overlap, or Creating a Gap? Judicial Interpretation of the Private Securities Litigation Reform Act of 1995 and RICO, 28 Notre Dame J.L. Ethics & Pub. Pol’y 435, 475 n.113 (2014). The 2008 recession is an example of inequality in the United States that still continues today.68Id. In the international sphere, the United States continued its efforts to both “insulate itself from the domestic blowback[s]” and “safeguard the special features and protections of the U.S. Constitution from external interference.”69See Ruggie, supra note 60, at 305.
These phenomena are reflected in the Supreme Court’s opinion in Morrison v. National Australia Bank.70 See Morrison, supra note 58; Anthony J. Colangelo, The Frankenstein’s Monster of Extraterritoriality Law, 110 Am. J. Int’l L. 51, 53 (2016) (discussing how the presumption against extraterritoriality– which had been strongly revitalized in Morrison – asserts that Congress legislates domestically and does so to avoid interferences in the international realm from the overreach of U.S. law). The holding in Morrison resulted in more burdens upon U.S. claimants cast in the form of discerning congressional intent and preventing international infringements.71See Alina Veneziano, Studying the Hegemony of the Extraterritoriality of U.S. Securities Laws: What It Means for Foreign Investors, Foreign Markets, and Efforts at Harmonization, 17 Geo. J.L. & Pub. Pol’y 343, 349 (2019) (discussing how the Morrison holding negatively impacts U.S. investors despite its holding of discerning congressional intent and looking only to domestic exchanges/transactions). However, this is a pretext. Morrison takes the power to adjudicate cases away from the lower courts by placing limits upon U.S. adjudication of foreign cases as well as imposing excessive procedural and substantive obstacles. And with less power given to the courts to do justice, how can transnational organized crime be addressed? Who will do it? How can RICO have any force if a prosecutor must jump through several bureaucratic hoops just to get a foot in the judiciary’s door, only to have the case dismissed for being too foreign? The problem here is that transnational organized crime is not always confined to one border.
Taking the United States to the Present-Day
Recent Supreme Court decisions to abstain from considerations of foreign infringements are a pretext for both judicial disengagement from adjudicating certain cases and U.S. withdrawal from the international realm.72See generally Morrison, supra note 58 (articulating a new process for determining extraterritorial applications when adjudicating cases with transnational elements that is based only on domestic concerns and discerning congressional intent and that disregards the international elements of the case). These trends are also illustrated by the fear that Obamacare represents too much government control.73See MacLean, supra note 2, at xviii. MacLean describes these fears as attempts “to destroy our institutions.”74Id. at xix. Libertarian philosophy advances government only to the extent it ensures the rule of law, social order, and national defense.75Id. at 213. To the extent it attempts to regulate aspects of American life through programs such as Medicare, Medicaid, and Obamacare, government is simply impermissible.76Id.
After conservatives took control following the midterm elections of 2010, legislation was passed that significantly curtailed voting rights, specifically regarding who could vote and the procedures for doing so.77Id. at 231. Even after Buchanan’s death in 2013, Koch continued his mission “to put democracy in chains.”78Id. at 203-204. It has been noted, nevertheless, that the inequality in the United States is due neither to globalization nor technology, as libertarians would have people believe.79Id. at 219. It is instead due to the control of politics and policy by corporations and donors,80Id. rather than by the government. The key differences between governmental and private control is not only democracy but also legitimacy and accountability. A country that is not operated or managed by its government faces serious complications with respect to democracy, legitimacy, and accountability. If more control is placed in the hands of private companies and individuals, how can a democracy thrive? A democracy is, after all, based on “the consent of the governed.”81See Mark P Gibney, The Extraterritorial Application of U.S. Law: The Perversion of Democratic Governance, the Reversal of Institutional Roles, and the Imperative of Establishing Normative Principles, 19 B.C. Int’l & Comp. L. Rev. 297, 305 (1996). The people do not elect private companies to safeguard their country, so where does their right to control the affairs of the country come from? Furthermore, there is no source for the authority that privatization will yield the progression of a society; thus, it is illegitimate. Lastly, who are they accountable to? If the people within a society are unable to exert a presence in the political process to encourage change, then the actions of those with the greatest wealth will not be accountable to anyone.
The post-Morrison circuit split can be seen as evidence of democracy trying to break free of the shackles placed upon it by the Morrison holding. For instance, whether the circuit at the time had adopted the enterprise approach, predicate offenses approach, pattern of racketeering approach, or the predicate statute’s geographic reach approach, developed after Morrison, the reasoning for doing so is the same: to find a way to side-step the restrictions of the Morrison opinion to provide the needed relief to claimants.82See Cedeno v. Intech Group, Inc., 733 F.Supp.2d 471 (S.D.N.Y. 2010) (“enterprise” approach); CGC Holding Co., LLC v. Hutchens, 824 F.Supp.2d 1193 (D. Colo. 2011) (“predicate offenses” approach); U.S. v. Chao Fan Xu, 706 F.3d 965 (9th Cir. 2013) (“pattern of racketeering” approach); European Community v. RJR Nabisco, Inc., 764 F.3d 129 (2d Cir. 2014) (“predicate statute’s geographic reach” approach). These examples represent democracy’s attempt to push through current restrictions but, as RJR Nabisco demonstrates,83See RJR Nabisco, supra note 57 (placing further restrictions on a private claimant’s ability to bring a claim with transnational elements in U.S. courts). these attempts have sadly failed.
What It All Means Today: Did Buchanan Prevail?
People in the United States are becoming more politically motivated each year, as is exemplified by the current stark political divide within the United States.84See MacLean, supra note 2, at xxix-xxx. According to MacLean, Donald Trump is not a libertarian but merely a supporter of capitalism.85Id. at xxxi. Nevertheless, the libertarian view is alive and well today and manifesting itself in curious ways, ranging from extreme views of state sovereignty to the complete withdrawal of the United States from the international realm.86See RJR Nabisco, supra note 57; Morrison, supra note 58. Buchanan’s “impact is still being felt today.”87See MacLean, supra note 2, at 155. In a globalized modern world, it is hard to imagine—let alone justify—such reluctance by the United States to interact globally. MacLean describes this predicament, though more on a domestic level, as placing “locks and bolts” on the Constitution of the United States.88Id. at 168 (“And today the effectiveness of those locks and bolts is undermining hope among citizens that political participation can make a difference in their quality of life”).
Other scholars have described the current attitudes of the United States as “American exceptionalism,” which has three elements: “exemptionalism,” “double standards,” and “legal isolationism.”89See Michael Ignatieff, Introduction: American Exceptionalism and Human Rights, in American Exceptionalism and Human Rights 3-4, 7-8 (Michael Ignatieff, ed., 2009). The United States has traditionally and continues to sign on to human rights and humanitarian conventions and treaties, while simultaneously exempting itself from compliance with various provisions by “explicit reservation, nonratification, or noncompliance” (exemptionalism).90Id. at 3-4 (“America supports multilateral agreements and regimes, but only if they permit exemptions for American citizens or U.S. practices”). It tends to judge itself and its friends by certain standards and other states by a different set of standards (double standards).91Id. at 3, 7 (“The United States judges itself by standards different from those it uses to judge other countries, and judges its friends by standards different from those it uses for its enemies”). Lastly, the United States strives hard to keep human rights laws outside its domestic system justifying this withdrawal on the “self-contained authority of its own domestic rights tradition” (legal isolationism).92Id. at 3, 8 (“The claim here is that American judges are exceptionally resistant to using foreign human rights precedents to guide them in their domestic opinions”). Complete isolationism and withdrawal heavily characterize the United States in the modern era and present many hurdles for international and domestic progression of the state.93See Austen Parrish, The Interplay Between Extraterritoriality, Sovereignty, and the Foundations of International Law, in Standards and Sovereigns: Legal Histories of Extraterritoriality, 1, 6 (Mar. 24, 2017) (forthcoming). The RJR Nabisco opinion is an excellent example of such isolationism at play. The opinion is criticized for its refusal to find the presumption rebutted for a private right of action despite express congressional intent regarding the statute’s extended geographic reach.94See Franklin A. Gevurtz, Building a Wall Against Private Actions for Overseas Injuries: The Impact of RJR Nabisco v. European Community, 23 U.C. Davis J. Int’l L. & Pol’y 1, 2 (2016-2017). For instance, following the two-step framework as set forth by Morrison and RJR Nabisco, step one should have left the Supreme Court in RJR Nabisco with only one conclusion for the private right of action: that § 1964(c) applies extraterritorially from the explicit indication from Congress in the statute’s provision referencing foreign commerce.95See RJR Nabisco, supra note 57, at 2101; Morrison, supra note 58, at 265-67.
How can it be that cases that have “the United States written all over it”96See RJR Nabisco, supra note 57, at 2116. must overcome additional burdens? Is this merely a product of too much formalistic reasoning or is there something else going on? The issue that Americans need to face sooner or later, as MacLean sets forth, is whether this trend, which affects local, domestic, and international policy, is a mere transitory social movement or an “assault on American democratic governance?”97See MacLean, supra note 2, at xxxii.
Returning to the Domestic Root of the Problem
Social movements can help the United States grow because they foster a system of adapting to present-day circumstances and standing up to old and new injustices.98Id. at xxxiii (“Our national experience over the past two and a half centuries has demonstrated time and again that the citizenry can learn and grow from social movements, sifting through their claims to adopt and reject as we see fit”). Rallies, organized events, and informal gatherings to promote broader objectives – social movements – are how American society has achieved some of the most monumental goals in history.99Id. It is through “[c]ollective organization, including strikes, [that]… the disempowered became strong enough to right the balance against the elites who lorded over them.”100Id. at 14.
The libertarian view is that “unrestrained capitalism is freedom.”101Id. at xxxii. This system is based upon four assumptions or, more appropriately, four mandates: (1) the control of large corporations and wealthy individuals over Congress and state governments; (2) the inability of the courts to interfere with the operations of the state; (3) a weak government unable to restrain individual prosperity or detract from that prosperity, including—and especially—with regard to the elite; and (4) an increase in the privatization of everything. Democracy simply cannot thrive under such a system. As MacLean ends her study, she asks her audience the rhetorical question of whether we would want to live in a world that “elevates property rights as to paralyze the use of government for democratically determined goals and needs?”102Id. at 233.
Thought Reflections for America
It is undeniable that Americans have used democracy to accomplish great feats, including establishing public education, roads and bridges, universities, unions, the right to vote, and anti-discrimination tactics.103Id. at 3. How can concerted and collective action be viewed with such negativity when we look at all the United States has accomplished when people cooperate as a group? This is collectivism, but it is readily dismissed by those who fear equating it with a system of socialism. To them, a system of governance based on collective principles means that society is not free. But are certain tenets, such as socialized healthcare, really features that society would not want, or is it more appropriate to consider them as fundamental rights? The debates on these issues will continue for decades. This rests on the fact that “American political history… has been marked by long periods in which one ideological ‘team’ outcompetes the other, producing institutional and policy change in its preferred direction for decades.”104See Teles, supra note 36, at 265. Some of MacLean’s analyses on awareness of American history and its implications for the future will help guide future scholars in further research.
MacLean’s thesis is, of course, not without criticism. Critics point out that her “[s]trong claims require strong evidence” which they lack, or that the debate encouraged by her book “has been political rather than intellectual.” Similarly, her analysis has been described as failing “to demonstrate convincingly how Buchanan was the central character and mastermind of the grand scheme to revamp democracy and government intervention.”105See Jean-Baptiste Fleury & Alain Marciano, The Sound of Silence. A Review Essay of Nancy Maclean’s Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, 56 J. Econ. Lit. 1492, at 1494, 1499 (elaborating that “[w]hile Buchanan was certainly important in developing an intellectual critique of government, backed by intense network building and institutional support, the book’s account seems forced, as if MacLean felt compelled to emphasize Buchanan’s central role”). Nevertheless, these critics also acknowledge that “it is not entirely impossible that MacLean is right” and that “[m]ore generally, it might happen that further evidence emerges showing that one or even all of MacLean’s claims is true.” Some critics acknowledge that assertions regarding the steps which were taken as a “backlash to civil rights” are “impossible not to interpret  as a politically motivated hack job, albeit one with strong and disturbing links to the rest of economics.” Sometimes, too, critics suggest that MacLean’s thesis didn’t go far enough, noting that “her particular emphasis on Buchanan lets the rest of the profession off scot-free.” Overall, these critics merely seem to point to the lack of documentary evidence supporting MacLean’s revelations. The problem with these attacks is historical claims such as those set forth in MacLean’s book do not easily lend themselves to evidentiary support. One will likely not find a memo detailing Buchanan’s inner thoughts nor a bullet-pointed list as to how to achieve them. But the value of circumstantial evidence should not be understated, especially when people do not like what is observed.
In her book, MacLean devoted time and energy to sifting through mountains of documents regarding the research of Buchanan and articulated a plausible theory regarding his influence on American politics. Regardless, the academic and abstract debate between “Team Public Choice or Team Anti-Buchanan” will likely rage on. However, the striking similarity and consistency between MacLean’s thesis and the pattern of U.S. willingness or reluctance to utilize the tool of extraterritorial regulation should not be ignored.
Alina Veneziano, L.L.M. Class of 2019, N.Y.U. School of Law.