Reading “History, Rhetoric, Law”

• Date: 01 June 1997
• DOI: 10.1177/0003603X9704200205
• Published date: 01 June 1997
• Author: William J. Curran
• Subject Matter: Symposium: Provocations and Reflections upon Competition Policy in America

The Antitrust Bulletin/Summer 1997

Reading

"history, rhetoric, law"

BY WILLIAM J. CURRAN III*

439

Professor Rudolph J. R. Peritz concludes his Competition Policy

in America

1888-1992

optimistically, yet his

hope

for democ-

racy's

"continuing possibility"! sounds little different from

our

Founders' dreams.

The dreams scholars share, besides democracy, like liberty and

freedom, or to which scholars succumb, like law and policy, or in

which most believe, like objectivity and reason, need not afflict

us. We can detach our reading from controlling myth, from

belief

in the critical discernment and rational judgment

of

the most per-

ceptive of scholars, and read historical explications like Professor

Peritz's, understanding that no matter their brilliance, they must

serve values, like democracy, that society prizes, and that scholars

admire, regardless of policy roles they might actually play.

How a myth like "democracy," and

our

Founders' fondness for

it, captured anation, along with generations of historians, what-

ever

interpretive skill or rhetorical

technique

they might com-

mand, remains one

of

legal history's least told stories.

*Member of the Nebraska, New York, and Pennsylvania bars.

See R.J.R. PERITZ, COMPETITION POLICY IN AMERICA

1888-1992,303

(1996).

©1997 by Federa! Legal Publications. Inc.

440

The antitrust bulletin

I.

The story begins more than a 100 years before the Sherman

Act's 1890 enactment.

At the Constitutional Convention, George

Ill's

lurking pres-

ence forced the Founders into a seemingly plausible, apparently

rational,

branching

of

power,

competitively

checked

and

bal-

anced,

but

publicly

unaccountable.?

The

power

our

Founders

feared, even if cleaved, checked, and balanced, since not account-

able,

was

to make

democracy

and its

"continuing

possibility"

difficult, as history attests.'

Remarkably,

it was to be

only

a few

years,

following

the

Convention,

before

one

of

our

Founders,

Thomas

Jefferson,

America's ardent democrat, fearing ineffectively checked power,

defected from separation of powers theory, and instead proposed a

pure

democratic

version,

with

branches

neither

competitively

checked nor balanced, but with each branch independent, and sub-

ordinated to the people's true sovereign power.'

If

Jefferson

would

reconstruct

democracy

out

of

a

pure

sovereign will popularly determined, it was his contemporary, and

fellow

political

theorist,

John

Taylor,"

who

would

have

built

democracy upon a single principle of morality, not as the "aristo-

cratic" Adams and his companion Federalists had cleaved democ-

See

M.J.C.

VILE,

CONSTITUTIONAUSM AND THE SEPARATION OF

Pow-

ERS

ch.

VI,

119-75 (1967).

For

the

"history"

of

the

separation

of

powers

doctrine,

see

VILE,

supra

note

2; W. BONOY, SEPARATION OF GOVERNMENTAL POWERS: IN

HIS-

TORY, IN THEORY, AND IN THE CONSTITUTION (1967);

P.K.

CONKIN,

SELF-EVI-

DENT TRUTHS: BEING ADISCOURSE ON THE ORIGINS AND DEVELOPMENT OF THE

FIRST

PRINCIPLES OF AMERICAN

GOVERNMENT-POPULAR

SOVEREIGNTY,

NAT-

URAL RIGHTS, AND BALANCE AND SEPARATION OF POWERS (1974);

Sharp,

The

Classical American Doctrine

of

"The Separation

of

Powers," 2 U.

CHI.

L.

REV.

385 (1935).

See

VILE,

supra

note

2,

at

164-67.

Id.

at

167. See

J.

TAYLOR,

AN

INQUIRY INTO THE PRINCIPLES AND

POL-

ICY OF THE GOVERNMENT OF THE UNITED STATES (1814).