Stephen Williams on Liberal Reforms – Legislation and Freedom
Editor’s Note: These comments were made at an event titled “A Reminder of Judge Stephen F. Williams,” held on October 9, 2020 by the Antonin Scalia Law School at George Mason University.
Late in his career as a lawyer and judge, Stephen F. Williams delved deep into Russian political history. He learned the language in order to approach the subject with its usual peculiarity. He wrote two amazing books, published in 2006 and 2017, about the doomed efforts of liberal reformers in the twelve years leading up to the 1917 Bolshevik Revolution.
Was this another of Steve’s hilarious hobbies like city biking, pets, and plant-based cooking? When a man with his supernatural talents is suddenly torn away, his friends want to remember him as normal companions like us. And Steve’s easygoing demeanor and dedication to friendship encouraged us to see him that way. We are all picking up new interests, and many of us immersed ourselves in the drama of Russian reforms after the communist collapse of the 1990s. Steve, like other judges, signed up for an exchange with Russian lawyers and gave lectures on the rule of law there. He attended meetings with Russian reformers at the American Enterprise Institute. When he published his first book on Russia with a lecture at AEI, Steve’s discussant was the great Russian economist Yegor Gaidar, who recently led market reforms as finance minister, deputy prime minister and acting prime minister.
But the Williams-Russia period was not a detour. Steve’s books spoke to both America and Russia, regardless of their initial motivations. They were part of his calling as a freedom scholar and judge overseeing the U.S. administrative state.
Steve’s commitment to private property and competitive markets was not doctrinal or ideological, but empirical and human.
This first book, Liberal Reform in an Illiberal Regime, evaluates Prime Minister Petr Stolypin’s agrarian reforms from 1906–1911 that allowed farmers to own and consolidate arable land that had been controlled by local communities. His theme is the problem of well-meaning reforms handed down from above in the face of persistent local traditions. You first notice that Steve’s ratings are like his legal opinions – balanced, meticulous, convincing judged. Then you realize that the author himself is a stolypin in a robe. Today’s administrative state is an illiberal regime based on non-representative legislation, non-independent jurisdiction and impatience with private rights and embedded in a variety of persistent agency cultures. Courts of appeal are of course much more restricted than Stolypin, who started his reforms with a direct ukaz. But they are our guardians of constitutionalism and individual rights, and insist on compliance with the Constitution and representative legislation when cases and materials permit. Judge Williams’ calling was to open sources of liberal reform in the local regulatory communities and hope for the best.
Steve’s book doesn’t even hint at that analogy, but sometimes it’s too good to miss. Before the Stolypin reforms, the parishes allocated property to small, awkward, disjointed lots; discouraged transfers between farmers and the assembly of larger areas with natural economies; and regularly redistributed some of the lots. This is eerily similar to how the Federal Communications Commission will manage the electromagnetic spectrum in 2020 – our farmland. Unfortunately, beyond the judge’s letter, he’s waiting for an American stolypin.
Steve’s commitment to private property and competitive markets was not doctrinal or ideological, but empirical and human. He wanted a system in which “people are able to balance their talents and interests with real work”. He also saw property and markets as essential to liberal democracy, where human energies are diverted from the accumulation and flattery of power to produce goods and services of value to others. This larger project was the subject of his second book, The Reformer: How a Liberal Fought to Prevent the Russian Revolution.
It is impossible to read Steve’s moving account without a tear for what was to come in Russia – and another tear for what has come in America.
Vassili Maklakov, trial attorney and intriguing speaker, was a leader of the left-liberal constitutional democrats – the Cadets – in the Russian Duma in the fateful years leading up to the 1917 revolution. Steve presents Maklakov as a lonely voice for moderation, civil advice, and compromise. Russia was an atomized zero-sum society with no intermediary institutions to filter and guide popular opinions and passions. Politics was a purely personal stance where political issues were judged entirely by who was for them and who was against. Not only the revolutionaries, but also the democratic reformers were fixated on the promise of a majority state power. Maklakov, practically alone among the reformers, saw that this was a formula for suppressing intellectual dissent, Jews and other minorities, property owners, and entrepreneurship. What Russia needed was not power but the rule of law and mental habits to support it. In Steve’s pièce de résistance, Maklakov argues that everyone should take into account the strengths in their opponents’ arguments and the weaknesses in their own. For this he was despised by the leaders of his own party.
It is impossible to read Steve’s moving account without a tear for what was to come in Russia – and another tear for what has come in America. Now our politics are dominated by the search for executive power, politics are subordinate to personality, moderation is despised, and minorities and dissenters are selectively isolated and restricted. The difference is that we had solid traditions of democratic engagement and compromise, but let them wither. Let’s hope it is easier to restore lost Maklakovian habits than it is to rebuild them from scratch.
I think Steve’s warm bonhomie and collegiality were more than personal charm. They were invitations – gateways to the serious questions of law, politics, and economics that were his life’s work, and illustrations of some of the answers he had found.