Inteview with David N. Mayer

June 2000 -- DAVID N. MAYER is Professor of Law and History at Capital University in Columbus, Ohio, where he teaches courses in American constitutional history, English and American legal history, and intellectual property (copyright and unfair trade practices law), as well as a seminar in Libertarianism and the Law.

Before teaching at Capital, Professor Mayer taught at IIT Chicago-Kent College of Law in Chicago, Illinois; held a postdoctoral fellowship at the Institute for Humane Studies, George Mason University, in Fairfax, Virginia; and was an attorney with the firm of Pierson Semmes and Finley in Washington, D.C. He has received degrees from the University of Virginia (Ph.D. in History, 1988, and M.A. in History, 1982) and the University of Michigan (J.D. in 1980 and A.B. in 1977). He has written The Constitutional Thought of Thomas Jefferson (Charlottesville: University Press of Virginia, 1994, paperback 1995), Liberty of Contract: Rediscovering a Lost Constitutional Right (Washington, D.C.: Cato Institute, 2011), and several articles in law reviews, history and political science journals.

A former Salvatori Fellow of the Heritage Foundation, Professor Mayer also serves on the the board of directors of the 1851 Center for Constitutional Law (in Columbus, Ohio), is a member of the editorial board of the Cato Supreme Court Review, and a member of the fellowships Academic Review Committee for the Institute for Humane Studies.  He also is a member of the advisory board of The Atlas Society and has been a frequent speaker at Atlas Society conferences, including the summer seminars.  He also has served as faculty advisor to Capital University Law School's chapter of the Federalist Society for Law and Public Policy Studies and to the Intellectual Property Law Society.

Navigator: In your writings about the Microsoft antitrust case, you say that it reveals the false premises of antitrust law. What are those false premises?

Mayer: Basically there are two, the first being an economic premise. The false economic theory on which antitrust law rests is the "perfect competition" model, which is still taught in most mainstream economics classes. It undergirds the whole theory behind antitrust: the notion that a single company in an open market with no barriers to entry can seize control of the market and can charge "monopoly prices."

The other false premise is historical. This holds that there was a real problem with so-called trusts or monopolies in the late nineteenth century, and that the Sherman Antitrust Act and other federal laws were needed to deal with this problem. Business historians and economists have pointed out that the popular perceptions of that time were false: the major industries in the late nineteenth century were quite competitive. A good example is the Standard Oil Company, which is touted by almost everyone as an example of a harmful monopoly. Standard Oil had, at one time, a large share of the domestic oil market; but by the time the Supreme Court decided the Standard Oil case, its share had declined significantly because the industry truly was competitive.

So, the basic problem with antitrust law is that it is based on these historical and economic models that do not comport with reality. No monopolies have ever arisen in a competitive situation in a free market absent legal barriers to entry, absent governmental monopolies. There are no private monopolies, and the Microsoft case, of course, illustrates that.

The judge found Microsoft is a monopoly even though no one is forced to buy Microsoft products. That's what is frightening about the case: It shows that if a business can produce a product so popular that millions of Americans buy it-so popular that it becomes ubiquitous, the standard in whatever its area or product line-the success or popularity of the product itself can cause the company to be charged with being a monopoly. The judge's decision essentially says Microsoft has a monopoly on Windows. Well, that's true in a trivial sense. For example, Paramount has a monopoly on each individual movie that it produces. If a movie is really successful should we then break up the company? Should George Lucas be declared a monopolist because of his control over the Star Wars movies?

As Alan Greenspan said in a talk in 1961, antitrust law penalizes successful businesses simply because they are successful.

Navigator: You began your career as a Jefferson scholar. How do you interpret the Jefferson/Hemings case and its handling by historians?

Mayer: First, despite what many people believe, the recent DNA evidence does not prove that Jefferson had a child by Sally Hemings. All the evidence objectively showed is that there is a genetic match indicating a likelihood of paternity between someone who was a lineal male descendant of Thomas Jefferson's grandfather and one of the children of Sally Hemings. The DNA evidence just as well fits with the explanation that Jefferson's brother Randolph or one of Randolph's sons, Jefferson's nephews, fathered one or more of Sally Hemings's children.

I think the idea that Jefferson fathered Hemings's children is an example of people manipulating historical fact in order to support a theory that, for whatever reason, they passionately believe in. The descendants of Sally Hemings have had an oral-history tradition that Thomas Jefferson fathered their ancestors, but of course, oral history evidence is quite suspect.

Sadly, the Thomas Jefferson Memorial Foundation, or Monticello, has essentially signed onto this theory. They appointed a committee to investigate the DNA report and the circumstantial evidence, and they concluded that Jefferson did, indeed, have at least one child by Sally Hemings. The report is an embarrassment and one of the shoddiest pieces of historical scholarship that I have ever seen. But, Monticello has political reasons for wanting to sign on to the Sally Hemings myth. Part of that is because it has for several years been sponsoring an oral history project with the Hemings descendants and I think it feels a lot of pressure to side with them in this dispute.

What the report shows more broadly about historical scholarship is that some of the old standards of historical scholarship-such as not reporting an allegation as an historical fact when it is based on flimsy circumstantial evidence-have gone by the wayside. People are more than willing to sign onto a story even if it is not fully supported by the facts, so long as it answers some political agenda. Frankly, when news of the DNA report first broke, a lot of people wanted to sign onto the Jefferson/Hemings story because it was useful for the supporters of Bill Clinton at a time when he was being considered for impeachment. They could point to someone like Jefferson and say, "Look, other presidents have had their sexual indiscretions, so Bill Clinton's are more forgivable."

Also, I find it difficult to separate the Hemings issue from a broader problem that we have with wanting to debunk figures of the past. Many people try to knock the heroes in American history off their pedestals and reduce them to the level of modern-day politicians. So I'm skeptical when I see certain scholars jumping on the Hemings-story bandwagon.

In addition, many people would also like to use the alleged paternity of Hemings's children to say, "Look, this man was a hypocrite and a liar, so why should we listen to what he wrote or thought about how the Constitution should be interpreted?"

Navigator: Let's take the first issue first: What can be done to prevent faulty scholarship?

Mayer: It is a matter of people speaking out. There have been a handful of Jefferson scholars who have criticized the DNA report. In fact, the author of the original DNA study that was reported in Nature magazine, and the historian who worked closely with him, issued a press statement deploring the way in which the story was misrepresented in mainstream press. So I think it's important that historians point out such errors.

I also think that the public should view with extreme skepticism statements made by so-called experts. The history profession today isn't what it used to be. People who claim to be experts on Thomas Jefferson, including the staff at Monticello, can no longer be trusted to speak authoritatively on that subject.

Navigator: What about the other issue: How the Hemings story is used to advance certain agendas.

Mayer: Right. There are two problems with the Hemings story. The first, which I have been discussing, is the issue of what it shows about how shoddy today's historical scholarship is and how politics drives history more than facts do. If the story turns out to be true, that doesn't change the bad scholarship that's been employed so far.

The second problem, if the story turns out to be true, is how it will be used. And we can already see that. For those who passionately believe in the Hemings story, Jefferson was a hypocrite and a liar in a couple of ways: He was a hypocrite because he wrote about the evils of slavery, yet he abused the "power relationship" (as today's politically correct people would say) that he had with her. And Jefferson was a liar because he denied the story his entire life. (The Hemings story first emerged out of the writings of James Callender, a hatchet journalist and disgruntled office seeker. The story was circulated in the Federalist press, by Jefferson's political enemies.)

So, if the story turns out to be true, these themes are going to be harped on, and people will overlook what is really important about Jefferson, namely, his ideas. That is my main objection to the Hemings story: that it has been such a distraction. It has focused people on an aspect of Jefferson that I think is the least important. If it's true, it's true. But people will not then put in perspective his paternity and his family life at Monticello.

The disappointing thing about institutions like the Thomas Jefferson Memorial Foundation and the University of Virginia, both of which profess to preserve the Jeffersonian legacy, is that they tend to focus that legacy on bricks and mortar, and on these details of family life at Monticello. They ignore almost completely his real legacy, which is his legacy of ideas and his philosophy of government particularly, from which I think Americans can learn much.

Navigator: Why do people focus on the paternity issue rather than the fact that he had slaves? Is paternity just a better story today?

Mayer: That's a good question, because the real hypocrisy in all this is fact that Jefferson did have slaves. The story of Jefferson and slavery is of a man who, on the one hand, understood philosophically the evils of this institution of slavery but in his personal life-because he was such a poor businessman-because his personal management of his finances was so poor-felt he could do nothing about it. That's why he felt he couldn't free most of his slaves during his lifetime, and even in his will couldn't free his slaves without leaving his children and grandchildren destitute. Slavery was an important part of the agricultural economy of Jefferson's Virginia and he could not transcend it. He could not fully live up to his principles because of his own economic circumstances. That's the sad story about Jefferson, the real tragedy of his private life and that's the real hypocrisy

.

I think libertarians who admire Jefferson should not gloss over the fact that he was a slave owner. He should be criticized for that; it is a major inconsistency in his thinking. But it is enormously difficult for most human beings to be fully consistent in all aspects of their lives; and slavery is the one glaring inconsistency in the life of Thomas Jefferson.

Navigator: Speaking of being consistent in one's life: Why did you resign from the American Bar Association, and why did you go public with the resignation?

Mayer: The ABA has become a partisan organization advocating a variety of left-wing causes and no longer speaks for me or (I hope) a large segment of American lawyers. This is a trend that has been going on for several years. The last straw for me came this year when the ABA president invited Bill Clinton to address the general meeting at the convention. This was within days of the action taken by Federal Judge Susan Webber Wright sanctioning Clinton for committing perjury and obstructing justice. So, we have a man who has been sanctioned by a federal judge for committing illegal acts subversive of the justice system being honored by the ABA by being asked to address the organization. I decided that I could no longer give the ABA the implicit sanction that my membership gave it, and, in order to make my resignation truly effective, I needed to publicize the fact.

When my resignation letter became publicized nationally through the Federalist Society and the Washington Times, it prompted other people to reassess their membership. So, it started a good and needed dialogue about who represents American lawyers in the United States. The next time the ABA purports to speak for all American lawyers I hope people realize that it's simply not true. Only about a third, at most, of American lawyers are members of the ABA.

The ABA is another example, by the way, of a true monopoly. The ABA has essentially been granted a monopoly by government in those states that require people to graduate from an ABA-accredited law school in order to practice law. Unfortunately, that's almost every state in the Union.

Navigator: Do you have any suggestions for other ways in which Objectivists can take public stands and be activists?

Mayer: I'm a great believer in the value of things like letters to the editor. I think that's why it's so important to have sessions like the one on persuasive writing that Debra Ross gave at the summer seminar: to encourage people to do things like write letters to the editor. A lot of people think that it's a good idea but that they're too busy with their business, careers, and studies, and so on, to write letters to the editor. It really doesn't take more than a few minutes to sit down and write a thoughtful, focused letter to the editor. If you have more time, write essays.

Navigator: What good can a letter to the editor do?

Mayer: Well, we're talking on the Monday after the Easter weekend raid down in Miami, Florida, where federal government officials literally kidnapped this boy, Eliàn Gonzàlez, as a first step towards sending him back to life in communist Cuba. A number of my friends have written to me in frustration over this. One way for them to vent that anger would be to write letters to the editor, to write to their congressmen, to demand a congressional investigation of the pretended legal basis for the INS's forcibly going in and seizing this boy.

There was a splendid essay on all of this in National Review. The author of the piece referred to defenders of the Clinton administration as "the useful idiots" of the Left, pointing out how this case starkly shows the blindness that people on the Left have to the evils of communism. And, it's not just the people who are on the Left in government and academia. Unfortunately, it's a frighteningly large segment of the American population. People say, "Oh, a boy should be with his father," but ignore the broader context of what returning the boy to life in communist Cuba would mean. To many people, life in a communist country is just another lifestyle. They have no understanding of what it is to live under such a regime.

That the Clinton administration doesn't understand-that isn't terribly surprising, because Fidel Castro's Cuba is really Hillary Clinton's "village" taken to its logical conclusion. But I've heard ordinary people say, "Well, who are we to say that our lifestyle in the United States is superior to that in Cuba?" That's absolutely appalling. But they say this because they don't understand. They don't have the factual information and they accept too blithely the propaganda coming out of the Clinton administration. Objectivists should provide that information whenever they can. Even letters to the editor can help dispel that ignorance.

Navigator: But on broader issues: How can we help sway people away from believing that the "nanny" state is good?

Mayer: We can't change public opinion over night. As much as some Objectivists would like to think that all it takes is for rational people to read Atlas Shrugged and to see the light, it doesn't work that way. We have to work very slowly and methodically, one small step at a time, in order to accomplish something in the world of politics. It means that we have to be willing to collaborate with people whose philosophy is based on different premises, but who might agree with us on the same ad hoc solutions, whether it's cutting taxes (eliminating the income tax or at least eliminating progressive tax rates), or cutting back on government regulations.

Navigator: Do you see anything to be optimistic about?

Mayer: People are finally beginning to question the premises on which the welfare state was based; it took almost the entire twentieth century for people to realize that paternalism just doesn't work. As I look at it, the grand story of American history is that we had this revolution in 1776, which had truly radical implications. For the first time in human history it was suggested that the rights of the individual should come first, that they are paramount to the supposed needs of society. (I say "supposed," because there is no such thing as the public good or the good of society apart from the good of the individuals who compose the society.) However, this semi-radical revolution wasn't complete. Creeping into the American politics and American law were the old ideas that were rooted in older pre-capitalistic, feudal or paternalistic, Old World, English society. (Antitrust laws are one example of that.) And those older ideas still persisted in the law. They really surfaced at the start of the twentieth century with the so-called "Progressive" movement, when people in the name of progress called for a return to paternalism. I think a lot of people were alienated by or frightened by the changes that came along with the industrial revolution in late nineteenth-century America. This fear explains, to some degree, the popularity of the Progressive movement, its idea that as society gets more complicated, government needs to play a greater role in people's lives.

Of course, the classic liberal vision, the vision of the American Founders, was just the opposite. As society advances, the role played by the coercive power of law, of government, should be minimized and there should be fewer rather than more laws. At the start of the twentieth century, unfortunately, in our public policy, we tended to revert back to these old, pre-1776, paternalist ideas about government. The whole idea of a nanny state, which provides cradle to grave security for people, is not a new idea. It really goes back to medieval society, the old English idea of the king or queen as a parent of the country.

Now I think people are beginning to realize, at least in utilitarian terms, that the welfare state's not working, and in a sense we're back to square one in the public-policy debate. I would credit the increasing effectiveness of free-market think tanks-places like the Cato Institute, the Reason Foundation, and the Buckeye Institute (our Ohio version of Cato). Also, free market ideas are now seen as a breathe of fresh air- something that actually might work once people realize that the old model of the welfare regulatory state-this old Henry VIII, Elizabeth I, Otto von Bismarck, Woodrow Wilson, Franklin Roosevelt, Lyndon Johnson model of things-doesn't work.

So if you look at the state of politics today and the degree to which mainstream people in politics and the media are receptive to at least some free market ideas and compare it with the state of things in the 1960s or the early 1970s, you will see that great progress has been made in just the last few decades. As an historian looking at the big picture, I like to think that we're in a time of transition, as we were at the beginning of the twentieth century. At that time, unfortunately, the welfare state model won out in the public-policy debates over the laissez-faire model. I think that now, at the end of the century, having lived with the welfare state for almost one hundred years, many Americans are beginning to want to reassess that decision and are willing to consider laissez-faire. It's up to the advocates of capitalism and the free market to make the case for them, not just on utilitarian grounds but on moral grounds And that's where Objectivists have a vital contribution to make to public policy debates today.

This interview was conducted for Navigator by Margaret Nicholson

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