More On Tax Versus Penalty

I want to make a point on tax against penalty, which I got from reading Randy Barnett on the ACA decision.

That point is this: I argue Obama and his agents are right to keep calling the payment for no insurance a penalty because it's both a penalty and a tax depending on what angle it's looked at from.

Under the ACA's clear wording and intent it's a penalty. Under the case law that obliges the court to give the law all "fairly possible" readings to try save its presumptive legality, it can be construed to be a tax, even though that's not it's most likely construction.

 "Most likely" is not the issue. "Fairly possible" is the issue.

So based on obligation of the court to strive to preserve the mandate's constitutionality, the court for that precise purpose deems, or constructively, calls the payment a tax. It’s a kind of legal fiction employed for a narrow and specific purpose.

That deeming or constructive characterization does not logically need to vitiate calling the payment a penalty and Obama and his agents are right to do that for his political benefit.

That distinction is what balled up Romney for a few days before he got down to his own mug’s game of politics and started calling the payment a tax. Republicans who seize on the payment as being a tax and say Obama therefore lied when he denied it either don't know what they are talking about or do and are cynically and recklessly indifferent.

My Note To Pete Wehner On Tax V. Penalty And Obama's "Post Modernism"

My note on Pete Wehner calling out Obama for calling the charge in his mandate a penalty and not a tax:

...Wehner persists in misunderstanding that neither Obama nor his lawyer in court nor the court and nor the ACA say that the charge for no insurance IS A TAX.

 All of them say if the mandate isn't within the commerce power, it must get a reading which is "fairly possible" to save its legality.

 To read the mandate as a tax, said the majority, is not the most natural reading. It's most naturally read as a command. But reading it as a tax for the reasons Roberts discusses is, holds the majority, "fairly possible."

THEREFORE THE CHARGE CAN BE DEEMED TO BE A TAX AND ITS CONSTITUTIONALITY UPHELD UNDER THE TAXING POWER, EVEN IF THAT ISN'T THE MOST LIKELY READING. PRECEDENTS COMPEL FAIRLY POSSIBLE READINGS AS A MATTER OF JUDICIAL DEFERENCE.

The dissent obviously disagrees, not with the precedential principle but with its application in this instance. But it escapes Wehner's understanding that it's entirely consistent for Obama to say that SCOTUS upheld the mandate as a tax but that it's still a penalty.

That will be understandably confusing to non lawyers inexperienced with the law. And in the mugs' game of politics, that distinction will both get hopelessly confused and by cynics who no better disingenuously preyed on.. But for commentators with claims to thoughtfulness and intellectual honesty, that distinction should at least be understood, acknowledged and properly be taken into account in any writing on these issues, however polemical...

A Short Note On Socrates's Apology

Fantastic, enriching reading or rereading as the case may be: The Apology in The Trial And Death Of Socrates.

 A way of characterizing it is to see it turning on the paradox of wisdom, intellectual power and philosophic self knowledge (hence, strong self confidence) springing from utter intellectual humility, claims to know very little and modesty.

The application of that paradox throughout the Apology yields another: the stripping away of pretense to brilliant knowledge by those proclaiming it and exposing their fatuity, their knowing nothing, that they are the opposite of what they claim to be.

All this Socrates does by his relentless questioning based on first principles and then following the path created by the answers logic and right reasoning compel. So the wisdom that proceeds from "ignorance" exposes the ignorance that masquerades as "wisdom."

The power of the Apology issuing out of Socrates's quiet strength through modesty is palpable. Too, it measures the moral deficiency of those who accuse Socrates and who finally judge him, condemning him to death.

A Paraphrase Of Part Of The Joint Dissent On The Tax/Penalty Issue

It is with interest that I've been noting liberal comment applauding Roberts's upholding of the ACA even while conceding his legal reasoning on the tax/penalty issue leaves something to be desired, isn't persuasive and suffers from some conceptual confusion. For that reason, I got interested in the joint dissent's reasoning against Roberts's turning the ACA’s stated penalty into a tax. Here's my paraphrase of it:

...In all SCOTUS cases a tax and a penalty are mutually exclusive. A penalty can be formulated to be a tax and vice versa. But neither at the same time can be the other. It is not "fairly possible" to read the ACA mandate to be a tax for a variety of reasons. Against the judicial need to "fairly read" the mandate as a tax, if possible, to save its legality is the limit of not rewriting it. The court can't pervert the meaning of the law in trying a "fairly possible" reading of it.

A tax is an enforced contribution to provide for the support of government; a penalty is an exaction imposed by statute as punishment for an unlawful act. A "tax” can be so onerous as to be held to be a penalty. But a "penalty" has never been held to be so trivial as to be a tax. An exaction imposed for violation of the law has never been held to be an exercise of Congress’ taxing power—even when a statute calls it a tax, much less than when (as in the ACA) the statute repeatedly calls it a penalty. When an act imposes a monetary penalty as principal consequence for its violation, it always creates a regulatory penalty, not a tax.

Here the mandate can only be fairly read as a command. The minimum-coverage provision is entitled “Requirement to maintain minimum essential coverage.” It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential coverage.” And the immediately following provision states that, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.” Too, several of Congress’ legislative “findings” with regard to ACA confirm that it sets forth a legal requirement and constitutes the assertion of regulatory power, not mere taxing power. The “shall” of the mandate is contained in the main operative provision of the act and cannot be fairly read as a "may."

That Congress in its own words imposed in the ACA a penalty for failure to buy insurance renders that failure unlawful. A canon of interpretation is that a statute penalizing an act makes it unlawful. If a statute inflicts a penalty, the penalty implies a prohibition, and its breach is unlawful, even though there are no prohibitory words in the statute.

Courts never classify as a tax an exaction imposed for violation of the law. And they never classify as a tax an exaction described in the statute as a penalty. Courts have sometimes called an unlabeled exaction for something other than a violation a tax. But courts have never treated as a tax an exaction which meets the criteria for a penalty, especially when the subject law explicitly calls the exaction a penalty. Congress calls the ACA exaction a penalty eighteen times throughout the ACA.

Some by the ACA are exempt from the tax but still must comply with the mandate. This distinction only makes sense if the mandate actually is a mandate. Three classes of people are exempt from the minimum coverage requirement. Then further classes of people who are subject to this requirement are exempt from the "tax." If the penalty were truly a tax, the two classes of exemption would make no sense since under the tax theory there is no command, which means all the exemptions would attach to the penalty (renamed tax) alone.

Penalty collections via the IRS are not rare. And varying a penalty according to ability to pay is a familiar practice.

The presence of a mens rea requirement suggests a penalty; but the absence of this requirement does not necessarily suggest a tax. Penalties for absolute-liability offenses are commonplace. And where a statute is silent as to intent, courts traditionally presume mens rea for a severe penalty. Jurisprudence addresses when an intent requirement can be inferred from a penalty. So it makes no sense to say that a penalty is not a penalty for want of an express intent requirement.

Judicial tax rewriting is troubling. Taxes are unpopular. They must originate in Congress. Thereby legislators can weigh the need for tax increases against the consequent unpopularity. Therefore Congress knew it was doing when it formulated the penalty provision over a tax provision in the ACA, which an earlier version of the statute contained before rejection. Judicially imposing a tax inverts this constitutional scheme, placing the power to tax in the judiciary, the least accountable branch of government to the citizenry...

An Account Of Mark Lilla's Afterwards In His Book The Reckless Mind

In his Afterwards, Mark Lilla in his book The Reckless Mind tries thematically underpinning the preceding chapters, which broadly deal with, as the sub title says, "Intellectuals in Politics." That underpinning might allay the impression these chapters are discrete essays, previously published, recast in book form but not tightly fit together.



In trying to do so, Lilla’s Afterwards turns on central questions:


“What is it about the human mind that made the intellectual defense of tyranny possible in the twentieth century? How did the Western tradition of political thought, which begins with the critique of tyranny in the Republic…reach the point where it became respectable to argue tyranny was good, even beautiful?”


(This Lilla calls “philotyranny.")


Lilla in the first part of his Afterwards posits a historian of twentieth century ideas answering his questions. This historian assumes the shared intellectual roots of modern philosophic love of tyranny and tyranny itself. He identifies two rival European intellectual traditions, calling one philotyrannical.


One line of argument is that one tradition, the Enlightenment, exploded the prevalence of Christian traditions and practices, encouraging social engineering by presumed “simple ideas of rational order.” On this view, the Enlightenment both bred tyrannies and was itself tyrannical in its intellectual methods—intolerant, absolutist, and deterministic. It hated and suppressed the diversity and pluralism of the Western tradition. Its single mindededness anchored twentieth century totalitarianism. It assumed one true answer to each moral and political question, all ascertainable by reason and interconnected.


But a counter line of argument exists, keying on innate religious impulse and vaunting the irrational as informing Europe’s intellectual history. Twentieth century European tyranny connects with religious privileging of the irrational. The urge to hurry the “coming of the Kingdom of God in a profane world” underlay these tyrannies.


On one version of this line of argument, the essence of the eighteenth and nineteenth centuries in Europe is not rationalism inclining to liberal democracy but, rather, religious and messianic expectations infusing modern democratic ideas. Hence, a frenzied, irrational apprehension of democracy overtook reason as the French Revolution descended into Jacobin terror.


These arguments pit a cold, efficient, heartless rationalism against the irrationalism of revolutionary fervor, the innate impulses of religion, the claims of blood and the glorification of violence.


Another way to try to get at the central questions is to examine the social history of Lilla's subject intellectuals in European political life over the history of their ideas. Here a conventional account is that the Dreyfus Affair brought out French intellectuals from the precincts of the arts and lit their higher duty as the state's conscience. A usual narrative follows: fights between the republican Dreyfusards and Catholic nationalists; fights over the Russian Revolution and the Popular Front after WW1; fights over Vichy; Sartre’s post WW11 existential Marxism; fights over Algeria; the neo left radicalism of and after May 1968; and the Mitterrand liberal-republican consensus.


Contending here are Sartre’s committed intellectuals as against bourgeois orthodoxy, and their radical critique of capitalism and imperialism as against restraint and anti Romantic proportion counseled by Raymond Aron. He called for mature and sober judgment in assessing the relative injustices of liberal democracies compared to tyrannies.


Despite this contention in France, something different occured in Germany. It had a qualitatively different intellectual class indifferent to the French idea of commitment. Its intellectual tradition, said Thomas Mann, was “culture, soul, freedom, art and not civilization, society, voting rights and literature...Germans never elevate social problems above moral ones, above inner experience.”

Jurgen Habermas argued that by withdrawing from modern politics, German intellectuals since the nineteenth century dwelt in a fantasy world of ancient Greece, of mystical Teutonic forests, of Magic Mountains that in the twentieth century made Hitler seem a regenerative force. Political engagement could have positioned them to stand against Nazism.


So, further contending are the critiques of disengagement—Habermas—and of blind political commitment—Aron.


For Lilla none of these contentions answer his questions about why European twentieth century philotyranny existed. They are partial and proximate, not touching his questions' heart. For that one needs to start where Lilla briefly begins his first Chapter, Plato's themes of philosophy and love.


Against these themes and to highlight their significance, Lilla posits a recurring intellectual type who can be linked to tyranny. He covets and regurgitates second and third rate ideas. Eros drives him, as it drives all men.


For Plato that innate force, the energy of love, wants to reach beyond itself, to stretch itself. All men are incomplete and seek to fulfill their own yearning. Eros is that yearning. Eros moves body in some and body and mind in others. Aspirationally, it leads to philosophy or the sublime arts or the right ordering of civic life--politics in its best sense. Yet it can lead to wanton excess of the senses and to cruelty. The former are heaven bound, the latter earth bound.


Love is of a piece with Eros. It too becomes wanton in excess. True happiness, therefore, resides in restraint and self disciplined proportion. They form self control, hence self mastery, the command of one's soul, even as Eros urges past restraint. Philosopy provides self mastery in the face of love, provides a disciplined erotic life seeking consciously what Eros unthinkingly aspirationally goes to—“eternal truth, justice, beauty, wisdom.” Only the few can think their way there. Others seek their wholeness or find their fracturing in relation to their capacities or incapacities.


Now some coherent understanding emerges. Tyrants for Plato are enslaved by their passions, those in whom Eros, the force of love, expels moderation and conquers their souls. Contrastingly, the philosopher knows the make-mad love of wisdom but does not enslave himself. Restraint permits self governance.


Some self-tyrannized become rulers. Their erotic madness enslaves self and subject. But much more numerous are self- tyrannized sophists forming the clerisy, in a word, intellectuals.


They are “sunburned” by ideas. They cannot master their passion for ideas or for the rewards of fame and celebrity. Endlessly they talk and write and theorize and intellectualize. (These days they are public intellectuals, often not knowing whereof they speak.) They are a herd parading as independent minds. They are driven by their passions and external quests, unable to restrict themselves to worth. In the young the passion for ideas may be for the good. The young may be educated into disciplined restraint so to approach the condition of philosophy or some other heaven-pointing good.


Some, diagnoses Plato, will slip their education and step if moved enough, by self and sophist, from thought to the action of politics. They will seek tyrannical fulfillment by wielding power. Their sophists will flatter them and toady to them for favor and celebrity. Contrastingly, those nearing philosophy will strive always toward the eternal by way of their restraint.


The limitless depths of excess and the illimitable heights of the eternal tell how Plato's thought-experimenting ideal of a philosopher king is to be understood. The ideal of this conjured figure makes clear the incommensurability between philosophy and politics. Such an ideal man, being an ideal man, will never exist.


Failing commensurability, the best men can do is approximate it by way of self control. And a lover of wisdom amidst tyrants and beasts sometimes best withdraws to live “pure of injustice and unholy deeds, and take his leave graciously and cheerfully with fair hope.” Public life will even in the best of circumstances and for the best of men inexorably devolve to compromise and injustice. (This inevitability's correlative is Socrates's drinking hemlock and, more so, his self-understood philosophic need to drink it.)


Self knowledge by self mastery is the best way to see and understand tyranny. Philosophy is the best way out of the tyrant’s rule of himself and others. A connection exists, says Plato, between the yearning for wisdom and tyranny. A yearning is the urging the of Eros. Unharnessed, it can wreck and destroy. Self knowledge is the key to harnessing for good and so the key to the soul's wholeness. Self knowledge's presence and absence marks the difference between philosophers in Plato’s sense and sophist intellectuals, philotyrannists among them.


Communism, Marxism, Fascism and National Socialism inspired hateful tyrants and blinded intellectuals to tyranny. But now an insight exists into philotyranny, an insight deeper than that provided by history, even the history of ideas. Twentieth century tyranny appealed to the vanity and raw ambition of modern intellectuals. More insidiously, though, it appealed to the connection between yearning for wisdom and tyranny. Yearning unchecked overtakes men.


To the overtaken, moderation and rational skepticism seem sniveling, mere excuses for inaction. They will hate the moderate, the rationally skeptical, the cool headed, the dispassionate and the philosophically disinterested. But those very qualities and their absence, again, mark the difference between Plato’s ideal of the philosopher and the recurrent sophist intellectual.


Some historians ascribe twentieth century philotyranny to the times' conditions, a historicist explaining (away). But tyranny keeps on, in men's souls and in their politics. The allure of power and the allure of ideas, or even an idea, draw forth tyranny. As the twentieth century excited certain forms of philotyranny, so the sources of tyranny and intellectuals’ love of it go on and on. And so men must be vigilant, as the precondition for the good, “to master the tyrant within."

Some Thoughts On Roberts's Taxing Power Analysis Upholding Obamacare

My to date best legal distillation of the recent health care decision with respect to Roberts's decision under the taxing power. It emerges from a brief exchange with a friend, the most able and brilliant civil litigator in Canada as far as I know. His brief comment first and then my, slightly after-edited, longer one.

 ....Shapiro does a good job of mining the seeming disconnnect in the holding that only one of the commerce power or the tax power can reach inactivity. He uses the former to raise inactivity to some government-free zone, but I still think that's wrong. There is more consistency in holding both can reach inactivity, but either can. Shapiro's distinction between a tax credit for solar panels (which he thinks is ok) and a tax debit for no solar panels (which he thinks is not) is not meaningful from a tax payers point of view. To the tax payer, under either scenario, it is solar panels--less tax, no solar panels--more tax....

then:

 ...I've read around this issue a little including scanning pretty quickly the right wing's joint dissent on the tax issue. Their concern is bracketed by a sighing concession that the government's right to tax is not subject matter limited by its enumerated powers, which it was once:

 ...As for the constitutional power to tax and spend for the general welfare: The Court has long since expanded that beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that were within the Federal Government’s enumerated powers...

Their concern here is principally over whether the the payment provision for failure to get health insurance is a penalty or a tax, the two being mutually exclusive for tax characterization purposes.

(Even liberal commentators have quizzically noted the "hair splitting," as it's been expressed, that the non-labeling of the payment as a tax is meaningful in holding for the purposes of the anti injunction statute argument that the provision is a penalty and therefore the case is not statute barred and holding just a tad later, that for the purposes of the taxing power analysis labeling is relatively inconsequential and it's the substance of the provision that must be addressed: if it's functionally a tax, then it's a tax.)

And it's that issue, tax versus penalty in reaction to grounding the act, that has attracted the direct, case based critical comment on the right.

Just to note it, one other case and text based criticism is what exactly is this particular tax; what precise category of tax authorized by the Constitution is it? Shapiro gives an outline of some of the issues raised by this criticism. And in their joint dissent, the four dissenters complain about throwaway and scantily briefed the issue was, not nearly enough to give serious consideration to the issues raised by holding the taxing power grounds the act.

The dissenters avert to some of the problems as well, for examples problems raised by thinking about whether the tax is a direct tax. At its broadest, their criticism is that Roberts hastily concocted this ground to rescue the health care law from unconstitutionality and is haste is evident in makeshift, thin and ill thought through his reasoning on the issue is, that a function of the scanty briefing.

The issue that I first posed seems to blend in somewhat with a different order of criticism of Roberts's reasoning, a more policy based criticism that follows more or less Shapiro's line of argument, that wants to re-raise the enumerated powers limits on the federal power to tax and that raises the policy concerns of a vast federal power to tax, including inactivity, as a serious danger to the idea of a limited government bound by enumerated powers.

One iteration of this argument is that where, taxing, the states can go the federal government should not. As put by a Rick Hills, a con law prof at Case Western Reserve, who himself rejects the activity/inactivity distinction from a commerce power perspective:

 ...But, in relying on the Taxing power, the Court has failed to offer a coherent purpose-driven reason for the result. It cannot be the case that the feds always can "encourage" people to undertake actions by taxing their inaction: Such a taxing power would render nonsense the basic idea that the enumeration presupposes something...

and: ...

How is such a taxing power consistent with any sensible notion of enumerating powers? Why would any sane framer, whether Hamilton or Luther Martin, Federalist or Anti-Federalist, ever agree to such an arrangement? The Court does not say... But Hills is offering a kind of overarching criticism not rooted in case law as far as I know.

As to what you say, I still have a niggling question in my mind. But, first, when you say this, "There is more consistency in holding both can reach inactivity, but either can," I find it a little cryptic. I agree that Shapiro wants inactivity to be a commerce power and tax free zone and gets an argumentative boost for the latter by the five judge agreement on the former. (There's an apparent debate whether that 5 judge agreement forms a binding SCOTUS precedent.)

I'd think the formulation that follows from the tax/commerce power split on inactivity is that just that: the government under the commerce power cannot reach inactivity to the extent of compelling non consumers to buy a particular product-the difference between regulating commerce and compelling commerce, as Roberts put it, but that, regardless, the government can reach inactivity through its taxing power, I.E., effectively force you to buy broccoli. So I don't know what you mean when you say, "...in holding both can reach inactivity..." since under the commerce power the government can't.

But my lingering question is this: take the example of the solar panels. The government can give a tax credit to those who have them. The government can, it seems clear to me now, impose a tax liability on those who, say, own houses and don't have them. (From the standpoint of the tax payer, the issue may be more than just more tax or less tax. If the tax is onerous enough, it may be the expense of the panels.) But in any event there's a difference between what Roberts held and the solar panel example.

The example does not mandate anything as such. It simply levies a tax or allows a deduction or a credit. And all that's fine, I guess. But in Roberts's holding, the government is saying you must buy health insurance or pay a tax, assuming it's a tax and not a penalty. My general understanding is that tax provisions don't speak to mandating or proscribing the activity or inactivity in question but rather provide for the tax consequences of what is or is not undertaken.

And in that light my original question resurfaces, maybe better formulated, how does the taxing power ground or legitimate the mandate itself, which it is a part of, when the government cannot otherwise compel it under any other head of the Constitution? And here the policy oriented criticisms seem to me have a real point. Just say do x--which we have no other constitutional basis for telling you to do it--or pay a tax and voila there's virtually no subject matter limit to federal power, bill of rights and procedural fairness aside. Is it just as is simple as attach a tax as an "or else" and the government is away to the races? I feel, like Rick Hills, that that cannot be right.

There is a technical answer to my question. The answer is that from the perspective of the taxing power, no one is forced to buy heath insurance. Those not exempt have a choice between buying the insurance or paying the tax. On this account the law simply taxes those not exempt who don't buy health insurance.But this answer is so artificial, particulalry when the charge has been described in the act as a penalty,that I think my question, and Hills's comment, persist.

Mark Lilla On Alexander Kojeve And Leo Strauss

Okay, who's heard of Alexander Kojeve?

Not me until just yesterday when I read a chapter about him by Mark Lilla in his book, The Reckless Mind: Intellectuals In Politics. (After getting past a a not completely satisfying first chapter on Martin Heidegger, Hannah Arendt and Karl Jaspers, I've been liking this book more with every page I read.)

So I just finished the chapter on Kojeve, who was Russian by birth at the end of the 19th century, left after the October Revolution, studied philosophy in Germany and eventually made his way to Paris where he lived two main lives:

first, apparently, as one the most important French political theorists of the twentieth century;

and, then, secondly, as an essentially post world war political advisor to French governments and who, apparently, was instrumental in formulating French international policy through those years.

The most scintillating part of this chapter, and of the whole book so far, is Lilla's account of the exchange between Kojeve and his intellectual soul mate, though they disagreed fundamentally, Leo Strauss. Also, this chapter seems the most relevant, so far, to what I'm struggle to understand is Liila's unifying theme, something like, as his sub title indicates, "intellectuals in politics."

The exchange emanated from Kojeve's review of Strauss's book On Tyranny, in which he translates, and comments on, an Xenophon dialogue--Hiero.

For Strauss, it is not cardinal that tyrannies occur, tyranny being simultaneous with political life. Rather, for him, it is cardinal that philosophers and intellectuals fail to see them for what they are, that philosophy must always be aware of the dangers of tyranny as threatening to political decency and philosophical life. Philosophy needs to understand politics sufficiently to protect its own autonomy without thinking it can shape actual life. There will always be tension between philosophy and politics; that tension can be managed but never obviated.

So philosophers must always be concerned about dangers to their autonomy. For philosophers, neither withdrawing into their own private gardens nor serving political authority are possible without risking the end of philosophy.

Kojeve, a communist his whole intellectual life, objects to this formulation. Tyranny can actually advance the work of history, preparing the way for a better future. Strauss is replicating the false idyll of philosophy as disinterested reflection seeking the eternally true, beautiful and good. In truth, argues Kojeve, there are no such eternal ideas; ideas, rather, emerge out of historical struggle. Philosophy must take part in that struggle to help eventuate future truths latent in the present. Seen this way, philosophers and tyrants need each other to finish the work of history. The former elucidate these truths for the latter. The latter are bold enough to actualize them.

Strauss's answer is to question why, for an instance, Stalin's tyranny (which Kojeve had in mind) is any less horrible than the ancient tyrannies, and is to question Kojeve's faith in the truth of his own Hegelian view of history as moving inexorably progressively forward. (Lilla notes that even as a communist, Kojeve thought Hegel had identified what leads to the end of history and that Marxism is one Hegelian project that must be seen to do its work within the confines of Hegel's thought.)

Here Strauss asserts his competing view of philosophy: it is the awareness of the fundamental and abiding questions and problems and the always imperfect quest for enlightenment given them. Kojeve, therefore, positing end of history (Fukuyama mentions Kojeve) is unphilosophical, committed to ending philosophy's quest for enlightenment in his vision of the end of human strife and striving. For Strauss, when striving and strife end, humanity ends--this being a version of Nietzsche's last man standing last when all human excellence is leveled and human striving is forgone in the name of equality and peace.

Kojeve saw in Hegel and then Napoleon the idea and then the actuality of the end of history, equality manifest in the due recognition by all of all bringing welcome surcease to all strife. So Kojeve argues back that what the end of history brings is infinitely preferable to present day, 1950, "automata" being " satisfied by sports, art, eroticism, with the sick ones getting locked up and the tyrant being the administrator, "a cog in the 'machine' fashioned by automata for automata."

For Strauss what Kojeve envisions is horrifying: the prospect of people becoming less human by abandoning their quest for enlightenment and moral improvement being neither a utopian wish nor a dystopian fear. It is rather, for Kojeve, a possibility that history makes probable.

aAs a proof, Strauss adduces Kojeve's studied neutrality during the cold war. For Kojeve, says Strauss, the cold war is history working itself out, whether through tyrannical state socialism or liberal democratic capitalism. Kojeve is indifferent to those suffering under the heel of the tyrant. Suffering only matters to the extent it helps give rise to history reaching its inevitable end. History's "losers" have no interest in virtue of their suffering for Kojeve.