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The Official Fourteenth Amendment Sep 11, 2026

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The Fourteenth Amendment is at the heart of many of the most controversial issues that will land before the Supreme Court today. In his new book, David Upham argues that many of the legal theories about it are not deeply rooted enough in the history or text of the amendment itself. He joins the Law & Liberty Podcast to discuss. Related Links Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment by David R. Upham Transcript James Patterson (00:06): Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, associate professor of public affairs at the Institute of American Civics at the University of Tennessee. With me today is Professor David Upham. He is professor of law at St. Thomas University College of Law. Today, we’ll be talking to him about his new book, Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment on Bloomsbury Academic Press that just came out. Welcome, Professor Upham. David Upham (01:13): Thank you, Professor Patterson, and thank you very much for the opportunity to speak about my work, which I’ve been working on for many decades. Liberty Fund and Law & Liberty is a daily place for me to read what’s going on in the world of the broad discussion of the state of our republic. And I’m genuinely honored and I feel very privileged to be here. Thank you. James Patterson (01:34): Well, that’s very generous. And honestly, the book is a real contribution to an area that you actually establish early in the text is quite crowded, which is the study of the Fourteenth Amendment. I think it’s something like why does the world need another Fourteenth Amendment book was a question you actually posed. I had to laugh at the level of consciousness about this. So why don’t you answer that question for us? David Upham (01:59): Well, in some sense, the topic is as relevant as it has ever been, and more specifically the original understanding of the Fourteenth Amendment. A decade ago when I really started writing the book in earnest, we had just had the decision in Obergefell in which the Supreme Court had said the Fourteenth Amendment compels the states to extend the status, duties, and rights of marriage to same-sex couples. And although the court in that case did make originalist claims, those claims were so unsupported that I think it’d be fair to say that Fourteenth Amendment originalism was at a nadir. It was the least relevant to our actual politics. So I said to myself, “I need to publish this book just so I can unload my research and leave it for perhaps future generations if anyone should happen to stumble across this topic.” But what happened in the last ten years in American politics and law has been, well, bewildering to many of us and complicated and nuanced, and the story itself will take, for that to be told in any objective way, it will take a future generation to do it because we’ve lived in it so much. (03:08): But for whatever reason, the Supreme Court today, all nine justices have taken to writing extensive and I think robust Fourteenth Amendment originalist opinions in a number of areas that have made it such that our discussions of the American Constitution with reference to things like affirmative action and the meaning of birthright citizenship have now made it such that the Fourteenth Amendment originalism is highly relevant. The second question is why a new book? Well, in part, I think many would say that there has not yet been a largely persuasive account. It does seem to be something of a cacophony of voices. And I believed perhaps with much hubris that I have something to say that isn’t simply another set of cacophonous, another addition to the cacophony. One of the things is the book does include a large number of new sources that have either been not discussed or discussed only in fairly remote footnotes. (04:12): New drafts that were under discussion, newspaper articles contemporaneous with the liberations of the 39th Congress when they were drafting it, and also the ratification debates. I make a large number of interpretive claims about the evidence that are new. And I think I can say this without sounding too arrogant. I probably say nine out of ten of my things are just wrong, but one of the ten might be really valuable. And I’m confident that some of the interpretations would be considered, if scholars engage with my work or just skim it, would say, okay, let’s say eight out of ten is junk. It’s obvious garbage, but two might help to address or move us forward to a genuine, what I would call a genuine consensus that can give rise to disagreement because disagreement is an achievement because it requires that the parties know the underlying terms. It has to be an underlying agreement and then you can reach disagreement, which incidentally I do think was the case in the recent Trump v. Slaughter, the birthright citizenship case. (05:16): There’s a lot of noise there, but the justices actually agreed on a lot of things that made for an interesting disagreement among the judges, common sources, some common premises. And so the goal of my book is not to create an exhaustive and definitive account, and now all times should fall silent because the Fourteenth Amendment is now understood. But I hope to give rise to contribute to what I would call disagreement rather than cacophony. So again, new sources, multiplicity of new observations, and at the very least an argument that we should not, in my first substantive chapter, we should not just throw up our hands and say, “Well, it was deliberately ambiguous.” People talking about it at the time didn’t seem to be bewitched. They act and speak among themselves as if the supporters have a coherent account among themselves. And that alone should give rise to perhaps just a new assessment of the available evidence to try to find what that consensus was, even if I didn’t find it. James Patterson (06:17): Yeah, there’s a kind of contemporary account of what the Fourteenth Amendment is, but you have a chapter that goes over what you call the original official understanding, which pertained to a sort of meeting or a committee that talked about this language originally. So why don’t we talk about that? David Upham (06:38): Sure. Well, the Fourteenth Amendment’s genealogy is fairly straightforward. There are three evils, at least three substantive evils, there are more, but three substantive evils in the unreconstructed South that need to be addressed according to the Republicans that dominated Congress before those 11 states could send representatives. The first of those evils is large scale lawless violence. There are lots of quasi-military, paramilitary organizations, beginnings of the Klan, but many others, that are operating with one might say the consent of the political power, which are Southern whites and largely formerly disloyal, and you could put formally perhaps in parentheses, disloyal Southern whites, which mean that the government is simply a failed state. They do not provide adequate security to person and property. And there are three groups that are particularly vulnerable, the freedmen, Southern loyalists, that is Southern Unionists, and Northerners. So there’s just an absence of effective enforcement of laws against murder and arson and kidnapping that need to be addressed according to the Republicans who dominate. (07:51): The second is the existence of laws we today call them, and they were often called the “Black Codes” that were either made or at least not repealed by the Southern white governments upon emancipation by which freedmen were by promulgated laws, statutes, constitutional provisions subject to many disabilities, not just as to political rights, but also as to civil rights, rights to trade, rights to travel, rights to buy real estate, et cetera. And then third, there’s what I’m going to call the maldistribution of political power. With emancipation, the former slaves who constitute a majority or near majority in six of the 11 seceded states and a large minority in other states go from zero-fifths of a person to five-fifths of a person. So that’s wonderful. They’re freed and now the Southern states have more political power. But the persons who are entitled to vote in the South are Southern whites, and especially in those states where free Blacks were most numerous, they also happened to be the states where Southern white opinion had been overwhelmingly secessionist and disloyal. (08:57): So the disloyal, formerly pro-slavery Southern whites acquire more political power as a result of emancipation and the suffrage is reserved exclusively to them by the state constitutions. Now, from our perspective, the answer to that question would be fairly straightforward. Will we need a Fifteenth Amendment to simply say the former slaves will all be voting so that they will have a majority in South Carolina, Mississippi, and Louisiana, and a near majority in Georgia, Florida, and Alabama, the 45% to 50% states. A lot of Americans forget that the history of African-American politics is not a history simply of a disenfranchised minority, but in fact a disenfranchised majority. But that awaited the great migration by which Southern states, we have no more Black majority states in our country. By 1930, South Carolina was the last one. So they have this issue, but one of the things that becomes quite apparent in the course of the formation of Fourteenth Amendment is that the Northern white vote, which by 1865, 66 is overwhelmingly anti-slavery, that public opinion changed dramatically, substantially in favor, large majorities, even in places like Illinois and Indiana, are in favor of equal civil rights for Blacks throughout the union. (10:23): When the issue comes up about what about equal political rights, even in those states where Blacks form an almost insignificant minority of the voters, there is this wall that says, “Hold on, not in favor of that.” And in many respects, to understand American public opinion in the nineteenth, and I think really up through Jim Crow, is “Emancipation, yes–substantial kind of civil freedom, yeah–interracial marriage, interracial voting? No, that’s crazy talk.” That opinion does not map onto deep principles and it doesn’t map onto the principles of the actual text of the Constitution, which produces one of the distortions. In the conclusion, I point out one of the problems of the Fourteenth Amendment, I think it’s fair to say that America’s too racist for its own constitution or was. Whether it still is or not is a completely different question. I put those questions aside. So those are the three evils. (11:20): The Joint Committee on Reconstruction is formed and the committee members have all of those three problems in mind when they’re forming, deciding what to do. They decide, and the Joint Committee’s charge is to propose any measure basically you want that you think is necessary to establish the conditions for the admission of Southern states, the 11 seceded states into Congress. And they debate a number of measures. Early on, they come to the conclusion that some constitutional amendments are necessary, and there is at least a majority on the committee who want what we would call a civil rights measure, something for securing equal protection and something securing equal protection understood as protect us according to the standing laws that are in the South, that is to say we need security against lawless violence. And secondly, equal civil rights. And they propose a number of different measures. And the ultimate measure they propose and set before Congress on April 30, 1866, is the framework for our Fourteenth Amendment. (12:24): And section five is the same section five we have today. Section one is the same section one we have today, except the citizenship clause. First sentence is added later. So what the committee proposes is our due process equal protection privileges immunities clause, which reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; unclear, different drafts, nor deny to any person within its jurisdiction the equal protection of the laws.” Those three clauses, privileges, immunities, due process, equal protection, are the place in which a huge amount of our deeply controversial constitutional laws happens, school segregation, abortion, affirmative action, state laws on guns, on speech and religion. Usually at the end of every term now in June, we have a big Fourteenth Amendment case, at least one. (13:21): And that joint committee incidentally not only proposed it, but pursuant to their original mandate from Congress, House and Senate, it was a concurrent resolution, that committee submitted a formal explanation of that language. It was a very lengthy report, but the key language, which should be remembered, I think, by every law student that takes constitutional law, by every originalist in the United States, but has been largely neglected is their official explanation of what that second sentence does. It shall “determine the civil rights and privileges of all citizens and all parts of the republic.” That language is what those prohibitions don’t abridge, don’t deprive, don’t deny, is supposed to establish some sort of baseline of civil rights and civil privileges throughout the entire country. It says very little, but I think it actually says a great deal, and I have a whole chapter explaining what I think what that sentence means and how the explanation is amply corroborated by lots of other originalist evidence. (14:25): So the Fourteenth Amendment section one, I would call it the original official explanation by the most authoritative body that participated in this, the one that was appointed by Congress to draft, and I think also appointed to explain it, determine the civil rights and privileges of all citizens and all parts to the republic. James Patterson (14:43): And you point out that this joint committee doesn’t get a lot of notice in federal jurisprudence. It escapes notice because people are so wrapped up maybe in the politics of the cases or the priorities of different ideological groups. What is it that led people to ignore this thing? David Upham (15:02): In Charlie Brown’s Christmas, where there’s a point where Charlie Brown says, “Can anyone tell me what Christmas is all about?” And then Linus famously comes in and reads from Luke’s Gospel, “Can anyone tell me what the Fourteenth Amendment is all about or reconstruction?” Historians have said, “Well, there’s an explanation. We’ve got the joint committee’s report on what’s going on and what they’re trying to do.” But American jurists have remarkably–I mean, it would be millions of pages on the Fourteenth Amendment, millions, hundreds of thousands of pages on its history, and plenty now with our current big data. One of the benefits of writing this book is I’ve been able to use big data. It’s not because I’m a particularly diligent historian, I have bigger tools now. Almost nobody quotes that one sentence, or I should say that one phrase, which is the explanation of section one, except for interesting moments in American constitutional history, and in particular, a fellow named William Guthrie, who probably launches incorporationism, which we call today an 1898 set of speeches. (16:08): He quotes from it, and the most originalist Fourteenth Amendment, the strongest Fourteenth Amendment originalist on…

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Fusionism's First Principles Aug 31, 2026

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A common narrative posits that the conservative movement’s marriage of traditionalists and libertarians was a tactical maneuver in the face of big government at home and communism abroad. In her new book, Fusionism, Stephanie Slade argues that this alliance narrative misses the mark; “fusionism” is a coherent philosophy that understands that liberty and virtue are mutually reliant goods. She joins James Patterson to talk about the term’s origins and how the conservative movement fell gradually, then rapidly, away from fusionism’s principles. Related Links Fusionism by Stephanie Slade“Synthesizing S. Frank Meyer” by Daniel J. Flynn Transcript James Patterson (00:06): Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson. I’m associate professor at the Institute for American Civics at the University of Tennessee. With us today as our guest is Stephanie Slade. She is a senior editor at Reason, and we are discussing her new book, Fusionism: Liberty, Virtue, and the Future of the American Right, which is forthcoming at the University of Notre Dame Press, September 1. Her writing has appeared in America Magazine, The New York Times, US News and World Report, and the Online Library of Liberty. (01:12): And she is also a fellow in liberalism studies at the Acton Institute. Stephanie Slade, welcome to the podcast. Stephanie Slade (01:20): Thank you, James. Happy to be here. James Patterson (01:22): Well, your book on fusionism has at least been anticipated greatly by me. I know many other people are very excited about it. And one of the focal points in some of the work you’ve been doing leading up to the publication of the book has been Frank Meyer. We had Daniel Flynn on who talked about Frank Meyer, the man. Why don’t you talk about Frank Meyer, the architect of fusionism? Stephanie Slade (01:46): Sure. Yeah. So for those who maybe haven’t heard the Flynn conversation, Frank Meyer was a senior editor at National Review magazine from its founding in 1955. So he was one of the founding editors, senior editors. He was the book section editor as well, and just one of William F. Buckley Jr.’s sort of right-hand men, one of the senior core leaders at the magazine of what became the flagship conservative magazine in the twentieth century in America. He worked there for 17 years until his death, and he was very influential during that period, though I think that he’s mostly been forgotten by too many people since then. So I’m so glad that Dan Flynn has this biography out last year that kind of helps to bring him back into the conversation because he was super, super influential. He was referred to often as “ground control” or “air traffic control” for the conservative movement because of the way he helped to bring people into the conservative movement, mentor many young people, and articulate the ideas that he believed that the conservative movement in America specifically should stand for. (02:45): And his idea, what came to be called fusionism, though that wasn’t his term, he actually did not like that word, but what came to be called fusionism was his idea that essentially what it means to be a conservative in America is to believe that liberty and virtue are both necessary for human flourishing, that we need to defend both liberalism, classical liberalism as a political tradition, but also virtue as understood through the Judeo-Christian moral tradition, and that both those traditions came together in a unique way in America, and that that’s the thing that conservatives in this country were trying to conserve, which is something kind of different from what you might find in a European context or an old world context. Here, liberalism was part of what it meant to be a conservative. So that’s kind of what makes us unique and exceptional. James Patterson (03:30): A really important element to your discussion of him is that for a lot of people, especially maybe listeners to this podcast, a lot of what we take for granted as conservatism is just the fusionism that Meyer was so helpful in producing, but that it was very contingent that it would succeed. There were a lot of alternatives at the very start of all of this. There were a lot of people who disagreed with Meyer. Who were those people and what were their disagreements? Stephanie Slade (03:56): Yeah, okay. So the way I start the story that I tell in the book is that, and the sort of conventional wisdom that a lot of people have or that I had at least coming into this project was that the conservative movement in the post-war years after World War II in America had these two sort of competing poles. You had the libertarian influence represented by somebody like Friedrich Hayek, the Austrian economist, and then you had the traditionalist, religious traditionalist or social conservative influence represented by somebody like Russell Kirk, and that you had these two influences that were competing with each other to see which one was going to be the dominant one or the controlling ethos of the conservative movement in America. And what fusionism does is it says, “No, no, we can’t be choosing between these two things. We need both of them. We need both traditions.” (04:43): We need classical liberalism. We need to care about individual liberty, rule of law, separation of powers, free markets, all of that stuff that falls under the classically liberal umbrella. But liberalism itself is not enough if we don’t have some sort of moral tradition that will help people understand what to do with their freedom once they have it and how to live a good life and how to build a good life and what does a good society look like, what are our obligations to one another?” And those questions can’t really be answered by liberalism alone. So we need teachings about what does virtue mean? What does a virtuous life look like? And so that’s the fusion, that’s the fusion, those two traditions coming together. James Patterson (05:21): There’s a great example of that, and you tell this story during a meeting at the Mont Pellerin Society in which Russell Kirk is called on to respond to a speech given by Hayek. It’s the Hayek speech about why he’s not a conservative. What’s that story like? It’s really like the meetings of liberty and virtue that Meyer’s trying to marry. Stephanie Slade (05:41): And I should say, I didn’t finish my thought, which is as I researched my book, what I found was that actually both Hayek and Kirk were extremely fusionist themselves. So although I at least came in thinking that they represented these two poles pulling against each other and with liberty and virtue in an antagonistic relationship, when you actually sit down and read Hayek and you sit down and read Kirk, you realize, wow, Kirk was actually quite libertarian and Hayek was a traditionalist. He was not himself personally very religious, but he believed that religion and morality and the sort of wisdom handed down through generations were necessary and important bulwarks for a free society. So Hayek is very traditionalist in addition to being a libertarian. Kirk is very libertarian in addition to being a traditionalist. So I argue that essentially fusionism was a much more widespread position than just. (06:27): It was not just something that Frank Meyer invented. He was describing what he found on the ground as the sort of native indigenous ethos and spirit of what it means to be American. So there was sometimes tension between these different figures. And so this story that you’re alluding to where Russell Kirk comes as a guest, he’s not a member of MPS, but he’s invited as a guest and Hayek presents what became his famous paper, “Why I Am Not a Conservative.” And then Kirk is invited to respond and he gives a response where he’s defending conservatism. What’s interesting though is, again, if you actually take the time to sit down and read the essay, “Why I Am Not a Conservative” by Friedrich Hayek, what you find is that he’s not describing American-style conservatism. He’s quite explicitly talking about a sort of old world European throne in altar conservatism and a conservatism associated even in the UK with a disposition that’s more like we want to maintain the status quo. (07:21): We don’t like change. And that doesn’t make a whole lot of sense in the American context because in America, our whole country is founded on going out, people venturing across the sea to found a new country, then venturing west, exploration, adventure, innovation, risk-taking. This is all baked into the American experience. And so a sort of old world understanding of conservatism that is more about preserving the status quo at all costs doesn’t make a lot of sense. And of course an old world conservatism that’s about throne and altar, like defending the monarchy and the aristocracy. We were founded to overthrow that stuff. And so in a sense, Hayek even writes, he says in his speech, he writes in his essay, he kept saying, “I’m not a conservative, I’m a liberal.” But then he says, “But actually Americans are …” And then he said I’m an old Whig. (08:08): That’s how he really describes himself, an old Whig, like the old Whig party in the UK, which is a sort of liberal party. But then he says, “In fact, all Americans are Whigs.” So even conservative Americans, because Whiggism in Hayek’s view is the political tradition upon which America is founded. We took an influence from the Whig tradition in England. Okay. So because of that, again, my argument is that although it sounds like they’re arguing or they’re debating each other at MPS, and they were in a sense having a discussion and a spirited debate, in a way they’re on the same team. Whether they realize it or not, I think in hindsight we can look at what they’re both arguing and what Frank Meyer is subsequently arguing and realize this is all fusionism. James Patterson (08:50): Yeah. And Meyer, he’s a former communist and a lot of these emphases either on liberty or virtue are a way of responding to that threat of communism. And it’s because in a way communism kind of invites this two front attack. One is that it’s totalitarian and so people want liberty over that, but also that it’s atheistic and so reduces all questions of virtue to utility for the party. And so people don’t know which one to prefer. And Meyer’s like, “You don’t have to choose.” Stephanie Slade (09:19): I think some people do get this wrong a little bit because you’ll sometimes hear people say, oh, talk about fusionism as a coalition of the different groups coming together to, for example, vote for Ronald Reagan. And they’ll say, “Well, the religious traditionalists like Reagan because he’s anti-communist and we’re anti-communist because the Soviet Union is militantly atheist and the libertarians support Reagan because he’s a pro-capitalist free market guy and the Soviet Union is anti-capitalist.” But this I think is a mistaken reading of fusionism, at least as I’m defending it, which is my fusionism and Frank Meyer’s fusionism and the thing that the word fusionism was coined to describe was a philosophical synthesis between these two things. It wasn’t just different groups coming together and voting for the same guy for different reasons. And so that’s why the idea that a common enemy in the Soviet Union is what held together the Reagan Coalition. (10:12): This is a thing you often hear, and it may be true about the Reagan coalition because in order to win an election, especially in a landslide the way Reagan did twice, you do have to put together a coalition with some strange bedfellows. So that is obviously a political reality. But fusionism, this philosophical synthesis comes along about 20 years earlier than Reagan being on the national stage. And it’s not just about getting different people to play nicely and vote for the same guy. Meyer’s arguing, if you care about liberty, you also need to care about virtue. If you care about virtue, you also need to care about liberty. So the Soviet Union is obviously our enemy and they’re not just our enemy and they’re standing for something that is contrary to everything we believe in, contrary to a free society. It’s an unfree society, it’s a totalitarian society, and you don’t have to choose which reason that’s for. (11:01): It’s for all the reasons. James Patterson (11:03): There are two people who are kind of kept outside of the National Review camp and opposed this fusionist view. One was Ayn Rand, who’s all liberty and no virtue, and the other is a person who leaves, and that’s L. Brent Bozell Jr. who’s all virtue, no liberty. So who are these people and did they have any effect on the way we understand fusionism? Stephanie Slade (11:27): It’s a really interesting question. I think that’s exactly the right way to think of it is that you can have fusionists say liberty and virtue. We need both. They’re mutually reinforcing. Sometimes you have radical libertarians. Rand actually didn’t use the word libertarian. She called herself an objectivist, but we can broadly and broad brush. She was a little James Patterson (11:43): Precious. Stephanie Slade (11:44): Yeah. James Patterson (11:44): Oh, and now I’ve just guaranteed Liberty Fund’s going to get a lot of emails. I’m sorry. I’m sorry. Stephanie Slade (11:49): But yeah, so one way you can reject fusionism is you can say, no, no, this virtue stuff is getting in the way of freedom. We need to be prioritizing freedom. Individual liberty is what matters. Liberty is the highest value, and it’s up to every person to decide for themselves what virtue means for them. And we shouldn’t be judging anybody’s choice on that matter. That is one way to be an anti-fusionist. Another way to be an anti-fusionist is to think that liberty is getting in the way of people being able to live virtuous lives. And we hear this a lot in our politics today from people on the “post-liberal right.” Of course, you know all about this, but this idea that we’ve had too much libertarianism and that’s why people can’t live good virtuous, moral, upright lives because we made it too easy to get divorced. (12:38): We made it too easy to give church because stores aren’t forced to close on Sundays. We made it too easy to watch pornography by not having enough censorship, all of this. So we need less liberty in order for people to be virtuous. And so Brent Bozell, I think Ayn Rand is an interesting character because her whole thing about objectivism is that she’s not a moral relativist. She thinks there are better and worse ways to live, but her highest value is liberty, I guess I would say. And so the Judeo-Christian understanding of virtue is absent from her worldview. She thinks that no smart people could possibly be a theist or a religious person. And there’s a fun anecdote that I included about a time when she and William F. Buckley Jr. were at a party together and she goes up to Buckley and she says, “Mr. (13:25): Buckley, you are too smart to believe in God.” And he didn’t know what to say, but he wanted to show her. This is a Lee Edwards story. He’s the one that told me the story. He wanted to find a way to show her, to demonstrate to her that actually you can be smart and be a believer in God. And so he wrote her a Christmas card in Latin. So anyway, she’s a great example of somebody who thinks it’s all liberty and no virtue, at least as understood in the Judeo-Christian understanding of virtue. And then Brent Bozell is this interesting character. I spent a lot of time on him because he’s just such a fascinating person. He was Buckley’s brother-in-law. He married Buck…

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Making American Citizens Aug 04, 2026

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Civics centers have made significant inroads in public universities over the past decade, a significant source of hope for American conservatives. In their conversation with James Patterson, Professors Lee Strang and Paul Carrese explain why civics education is so sorely needed and discuss the practicalities of building centers for civic education, their reception within public universities, and the impact of AI on the mission. Related Links Teaching America Reflective Patriotism in Schools, College, and Culture by Paul CarreseWhat Universities Owe Democracy by Ronald J. Daniels, Grant Shreve, and Phillip SpectorJustice by Means of Democracy by Danielle Allen Transcript James Patterson (00:05): Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, Contributing Editor to Law & Liberty, and Associate Professor of Public Affairs at the Institute of American Civics at the University of Tennessee. With me today are two guests. The first is Professor Lee Strang. He’s the inaugural Executive Director of the Salmon P. Chase Center for Civics, Culture, and Society at the Ohio State University. Before joining Ohio State, he was the inaugural director at the University of Toledo’s Institute of American Constitutional Thought and Leadership. And in 2016, he was appointed to the Ohio Advisory Committee of the US Commission on Civil Rights and reappointed as chair in 2023. (01:23): My other guest is Professor Paul Carrese. He is the Director of the Center for American Civics and a professor in the School of Civic and Economic Thought and Leadership at Arizona State University serving as its founding director from 2016 to 2023. Formerly, he was a professor at the US Air Force Academy, co-founding its honors program, blending Liberal Arts and leadership education. He has recently published a book in Cambridge University Press, and it’ll sort of be in the background of our discussion today. The book title is Teaching America: Reflective Patriotism in Schools, College, and Culture. Professors Strang and Carrese, welcome to the podcast. Lee Strang (02:06): Thank you. It’s a real treat, as I had mentioned earlier, it’s a real treat to be with Paul. He’s really, in some ways, the father of the paths that James, you and I, are trotting today … James Patterson: That’s right. Lee Strang: … in the large furrow that he had trod about starting 10 years ago maybe, right, Paul? Paul Carrese (02:20): Yes. Well, thanks very much. That’s very gracious. It’s great to be here. I look forward to the conversation. James Patterson (02:25): Knowing that about Paul’s influence, I have to make sure to do a good job lest he bring the hammer of judgment. Lee Strang (02:32): That’s right. He’ll expel you from being an heir, an intellectual heir. James Patterson (02:36): No. No. Paul Carrese (02:38): Well, actually, in the spirit of George Washington, I’m a George Washington fan, and I decided about six years into being the Founding Director at SCETL, which really, as Lee would know, you have to be a somewhat strong executive leader to build a department from scratch. And I was tired after six years. I know there were several faculty who were tired of me. I thought I should follow Washington’s example and step down rather than die in office. So now I’m just a professor. I’m just one of the members of the crew. I’m no longer the bigwig director. Lee’s the bigwig director now. Lee Strang (03:12): That’s right. That’s right. But you’re like Socrates. You’re giving wisdom. Paul Carrese (03:19): Until the hemlock comes. James Patterson (03:20): No, I was going to say, just don’t drink anything someone hands to you. For those listening and are not aware of the civics lingo that we’re using, SCETL is how we pronounce the acronym for School of Civic and Economic Thought Leadership at ASU. So we might do this a few times. Hopefully I’ll remember to jump in and explain things. I’m a big fan of the Commentary podcast, and Jonathan Horowitz is always jumping in and explaining things. And I don’t want to do that to you guys, but I might have to. So what is the state of civics education in the United States? And maybe to kind of narrow that, what is the report on the Educating for American Democracy, and maybe what did it find? We’ll start with you, Paul. Paul Carrese (04:00): Thank you very much. I would say that the state of civic education in a very serious way, and here I’ll be pointed, not democracy education, not engagement education, not just participation education. The condition of it in K-12 schools and in higher education is better than it was 10 years ago for a range of reasons. You mentioned this national report, Educating for American Democracy that I was invited to be involved with as openly, transparently, the only intellectual academic conservative in a lead author group of seven people. And that’s the credit of Daniel Allen at Harvard, Peter Levine Tufts, Jane Kaminski then at Harvard. James now the president of the Jefferson Foundation at Monticello. They wanted a national consensus report on the state of K-12 civics and history education focused on public schools. So we released that report in 2021. It has gotten some traction. Part of that report was a recommendation that higher education must renew its attention to priority for citizenship education for undergraduate students if there is going to be any hope for renewal and improvement of civic education in K-12 schools, not only because all the teachers have university college degrees, but because the whole culture of any given school is shaped by teachers in chemistry or reading, or whatever the subject is who are graduates of universities and colleges. (05:35): And if they never thought of citizenship education, civic education as a priority at the level that English Language Arts is or math is at most universities and colleges, then they’ll just never take seriously something like the civic social studies history teacher in the building. So that report has received some attention in dozens of states. Lee and I are here representing the public university reform movement that did begin at Arizona State University in 2016. There’s an analog effort in elite private universities. Of course, we have to give credit to the James Madison Program and Robby George at Princeton University and the Ashbrook Center at Ashland and some other centers that preceded anything happening in the public university reform over the past 10 years. But there has been a serious effort at Stanford University establishing the Stanford Civics Initiative about five years ago. And there’s now a required course for every Stanford undergraduate called “Citizenship in the Twenty-First Century” taught from a common syllabus. (06:39): That development was in parallel to, aware of what was happening in the public university space to establish these new departments, schools, colleges, centers of civic thought and leadership. So I’ll stop here and let Lee pick it up, but in the public university reform space, we can say that there are 12 states and 17 public university campuses that have basically adopted the model started by the state legislature and governor in Arizona, that there will be a new unit. The full size is a college. Three of them are in our colleges in Texas, in Florida, now in North Carolina. Either a college, a department, or a center, and that’s a pretty robust center, for civic thought and leadership under different names. And then in the private university space from Stanford to Johns Hopkins to Yale, maybe at Harvard, some renewed discussion about attention to civic education, citizenship education as a primary role for higher education. Lee Strang (07:45): And Joseph, I’ll just add maybe just a couple of comments on Paul’s remarks, which I think are probably representative of Paul’s experience, I’m sure your experience at Tennessee, in thinking about the state of civics education. So young people come to us at age 18 and I’ll just share two anecdotes, one anecdote relating to civic knowledge and one anecdote relating to the virtues which Paul has reflected on very well in his book, his recent book, Teaching America. So on the civic knowledge part, one of the things that is a corollary to what Paul was talking about in many public universities, including many states, has been required civics courses that oftentimes the schools of civic thought are either the leaders or at least one of the mechanisms of providing what used to be relatively common, but has now become rare, access to the common aspects of the American civic tradition. (08:33): So Paul, in his prologue or preface, talks about the Declaration of Independence repeatedly. And a lot of our students, they’ve reported to us, they’d never read it before. And that’s not just one document, but entire texts students have rarely read. And then in thinking about terms that Paul also talks about, I think really well, in his book: the virtues that are appropriate to our regime. One of the things that we recently experienced was we had our first study abroad for a cohort of our student society members, and we had a dinner organized in such a way that it was intentionally designed to bring students who have different perspectives together to debate in a civil way. And the students universally reported that was their favorite experience of the entire trip over to the UK. And in particular, what they said was that they had not had a conversation on a controversial issue in a civil way with the person with whom they had disagreed. (09:22): Many of them reported that it had never happened before in their lives. So thinking of the virtue of civic friendship and civil dialogue, that the schools of civic thought are able to both give the knowledge and skills that our young people need to be citizens with each other. James Patterson (09:36): How did civics education originally decline to the point where we had to engage in this kind of recovery mission? What were some of the policies that we should not repeat that led to this problem? Paul Carrese (09:50): One great resource here is crucial to mention because it proves that this is not a narrowly partisan project. You could say as a kind of restoration renewal project, it’s conservative. It is fair to say that at least the public university civic thought and leadership units are intellectually and academically conservative. As he was just recounting, the idea that you would take seriously the Declaration of Independence. And therefore, where did it come from? What are the civilizational sources of it? How could the Second Continental Congress have produced such a document? So you’re talking about a restoration of liberal arts education and American civic education. That’s intellectually and academically conservative. So what’s the need for this? A great resource, to continue my thought, is a totally non-conservative source. President Ronald Daniels of Johns Hopkins University and two co-authors publishing a book now five years ago entitled What Universities Owe Democracy. (10:56): And you can notice from the title that featuring the term democracy, not wanting to say “what American universities owe” or “what universities owe to the American Republic.” That would be the more conservative title. What Universities Owe Democracy. So who is Ronald Daniels, the president of Johns Hopkins University, the first research university in the United States of America established in 1876, who has the courage as the president now in the twenty-first century to say, you know, research universities, this model is a great thing. But one unintended… he’s very diplomatic, he’s a Canadian, he’s a lawyer, he’s very diplomatic, he’s very nice. So I’ll be brutally frank in a way he wouldn’t be. One, I think, unintended consequence of the research university model was to kill off the liberal arts spirit, to replace it. And what Daniel says more diplomatically is that a consequence of that was to undermine the civics education that had been provided by American colleges and then universities for hundreds of years, starting with Harvard in 1636. (12:00): So there’s a nonpartisan, very serious academic resource saying: we have a big problem in that all of the relevant disciplines that might have provided a citizenship civic education have entirely turned away from that role. It’s beneath them. So my PhD discipline, political science, we can name history, philosophy, other social sciences, but humanities disciplines, which would’ve thought in a literature course that they’re educating citizens. And the choice of readings and how you teach a course, it’s all relevant to this larger mission of the college or the university. You’re educating citizens and really, to be honest, citizen civic leaders. All of those disciplines have turned away from the more traditional liberal arts model, and they’ve definitely turned away from any role they have in producing citizens per se or civic leaders per se, except for a few spaces. And those few spaces think in activist terms. They don’t think in liberal arts, Socratic, intellectually diverse terms. (13:09): They think in activist terms. So there are obviously some people in political science departments who still care about this, but it’s all democracy education. It’s civic engagement education. And then there are the analogs obviously in the studies, the new studies disciplines. So this is the difficulty that we’re facing in a whole K-16 ecosystem. Why are students showing up at Ohio State University, very selective university where Lee’s teaching, and they’ll honestly say to him, “Wow, it’s fascinating to read the Declaration. I’ve never actually studied it. I’ve never actually read the whole thing at a selective public university.” How is that happening? It’s because of this research university ecosystem, which has totally pervaded obviously K-12 as well as higher education. So this was the brilliance, I think. I have to give credit to the Arizona legislature and governor in 2016 to say, You know what? (14:04): It’s really not going to work well if we ask political science and history and economics and relevant disciplines to reform, or if we just impose a new course, something like that. It’s good to impose new graduation requirements, and the Board of Regents has done that in Arizona for all the public universities in Arizona. But the genius to say, what we really need is a new unit, which would hire PhD faculty from the relevant disciplines and beyond the social science and humanities to lease discipline law. But selecting those excellent faculty with their terminal doctoral degrees to contribute to a restoration mission, to reconnect liberal arts education and civic education. Lee Strang (14:47): If I may, James, I’ll just comment and highlight one aspect of Paul’s story and agree it’s a complicated story. How did civics end up being something neglected? And highlight one aspect, which is the rise to modern research university. So, lots of reasons why we have research universities, lots of goods come from them. So the medicine, the scientific breakthroughs, the lives that we lead. So this is not to gainsay any of those. But if you think about what was part of the reason for the transition from, let’s say, the medieval conception of the university to the modern research university, one among many causes was that there ceased to be one common set or one body of knowledge or one discipline that provided a coherence, what I call an intellectual architecture for the university. And so since the rise of the modern research univers…

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An Independent and Originalist Court Jul 21, 2026

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Senior Writer John McGinnis joins the podcast to discuss the latest term of the Supreme Court. From cases on presidential removal power to birthright citizenship, he concludes that the originalist majority is reshaping the Court’s jurisprudence—though not always in the way the media says. Related Links Accelerating Democracy by John McGinnis“Blessed Are the Rich” by James E. Hartley, Law & Liberty book reviewOriginalism and the Good Constitution by John McGinnis and Michael RappaportWhy Democracy Needs the Rich by John McGinnis Transcript Intro (00:06): Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund. John Grove (00:40): Hello and welcome to this episode of the Law & Liberty Podcast. I’m John Grove, the editor of Law & Liberty, and I’m filling in for our regular host, James Patterson. And today I’m joined by John McGinnis, who is a Senior Writer at Law & Liberty. He’s also the George C. Dix professor in constitutional law at Northwestern University, the author of Accelerating Democracy, Why Democracy Needs the Rich, and a co-author with Mike Rappaport of Originalism and the Good Constitution. It’s fair to say that John is the anchor of our constitutional law coverage here at Law & Liberty. So we’re really pleased to be joined with him, as we are every July, to talk about the recently concluded Supreme Court term. John McGinnis (01:21): Delighted to be here, John. John Grove (01:23): Well, we have a lot of cases to talk about and I think a through line through a lot of these cases is presidential authority. So we’re going to start with one that was decided earlier this year, Learning Resources v. Trump. This is the tariff case, the question whether the International Emergency Economic Powers Act authorizes the president to impose tariffs, or the Liberation Day tariffs, as they were called by the President. I don’t know that everybody agrees with that term, but the IEEPA gives the president in certain emergency situations the authority to investigate, block, regulate, direct, compel, nullify, void, prevent, and prohibit importation. Do not specifically say anything about taxing or tariffs specifically. So, John, why don’t you start us off on this case, and what was the Trump administration’s argument that this legislation did allow the tariffs? And then how did the opinions come down and what do you think about them? John McGinnis (02:22): Well, Trump’s administration’s basic argument was this is an Emergency Powers Act, and it should be interpreted accordingly to allow the president to have flexibility in emergencies. That was his argument despite it lacking the words “a tariff or tax.” And the Court did not accept that. This, I think, is good to begin with because while the term had some wins for the institutional power of the president, it was not a good term for this President’s exercise of power. For the matters I think that most concern this president, beginning with the tariff case, he lost at the Supreme Court. And I think, in some sense, I would consider the headline of the term, at least in a political science sense, that the Court remains a separation of powers entity that can push back on the president even when he’s appointed three of the justices and even when six of the justices are members of his party. (03:32): And so what the Court did here was that it said, “Well, this is at least ambiguous because, after all, it doesn’t include tariffs or taxes and yet includes a lot of other sweeping powers. And when a statute is ambiguous and has major effects, we have something called the Major Questions Doctrine, which requires the Congress to speak clearly.” And well, here it didn’t speak clearly because it didn’t mention tariffs. And that’s why, at least in the plurality’s view of Roberts, Barrett, and Gorsuch, he loses. In the liberal justices’ view, he just lost as a matter of clear statutory interpretation. With respect to the dissenters, they said, “Well, we’re fine with the Major Questions Doctrine, but we really think it shouldn’t likely be applied much in the emergency context because after all, there’s a place where we might think Congress wants to have the kind of flexibility that the administration is arguing for.” (04:36): So that’s the argument. I think what’s important to note here are a few, again, headline jurisprudential facts. One, there are six votes for the Major Questions Doctrine in domestic and non-emergency affairs. The three dissenters are very strong on Major Questions Doctrine, so it’s going to continue being a presence in administrative law. The other I think important fact is the debate about, well, what’s the nature of the Major Questions Doctrine? And there again, Justices Gorsuch and Barrett really debated that. Justice Barrett arguing that it can be just understood as ordinary language. When you want to give someone a large power, you expect them to be particularly clear. And Justice Gorsuch says, “Well, I’m not sure about that as a matter of ordinary language, but as a matter of our legal tradition and agency law that existed at the Founding, as a matter really of our legal and constitutional language, that’s right.” And so that’s a debate about the nature of it. (05:43): This is just ordinary language, which fits very nicely into a kind of ordinary language textualism for Barrett, or is it nested within a legal structure of the Constitution? And that’s why we demand because of our concerns about giving the president, in particular, too much power. That’s why we have a Major Questions Doctrine. And Gorsuch, in what I think it may be the most important opinion he wrote for the court, despite its being a concurrence, he tweaks the liberal justices by noting all of the times when they gave the president tremendous power on canceling student loans, for instance, and refused to apply the Major Questions Doctrine, suggesting that they are not being consistent here. And it was quite, I think, a powerful concurrence by Gorsuch, very long and very scholarly concurrence going back into the legal background of the Constitution. John Grove (06:45): Yeah. Could you say a little bit more about some of these distinctions? Because as you note, there’s the Gorsuch and the Barrett debate over how you arrive at the Major Questions Doctrine. But then you also have the three, some quote-unquote, “more liberal justices” who agreed with the outcome, but they don’t really use Major Questions Doctrine at all. And they said, “Well, you can just arrive here through regular statutory interpretation.” So are they basically arguing that the statute here was just clear? John McGinnis (07:12): Yes, clear, particularly in context because they said, “Well, there are a lot of other statutes that give the president tariff authority. And so we should read it in that contextually. If we want tariff authority, the president doesn’t lack tariff authority, but it’s bounded by the requirements of these other statutes.” So that was their argument in this case. So that’s why they said that we didn’t need the Major Questions Doctrine. So they just read it as a matter of strict textualism. John Grove (07:41): Is that a sign that the Major Questions Doctrine might not be embraced beyond the sort of more committed originalist type justices that have come up with it? John McGinnis (07:51): Yes. So I think they were not going to see, but there are six justices on the court who embrace it. The dissenters are very clear in general that they are Major Questions Doctrine enthusiasts. And I think we’re going to see that for this reason going forward. The Major Questions Doctrine, quite apart from whether it’s correct doctrinally, it performs an important function. It allows the court to police unbounded or what it sees to be extravagant delegations without declaring them unconstitutional. So if Congress really wants this, they can come back with the same language and say, “Well, we really mean it rather than revive the non-delegation doctrine, which would actually constrain Congress as a constitutional matter.” Now, not to get ahead of ourselves, here they’re very careful to avoid any constitutional arguments. In some of the cases that we’re going to look at, I think the court reaches out to make some constitutional arguments in a piece that will be forthcoming in Law & Liberty. (08:54): I critique the Court for that, but at least let me point out that’s an interesting contrast with Learning Resources versus, for instance, Trump v. Cook, also with respect to the birthright citizenship case. John Grove (09:06): Alright. Well, that’s a good segue then. Let’s move on to some of these other cases, specifically these two removal cases, first Trump v. Slaughter and then Trump v. Cook. Trump v. Slaughter, for a lot of legal conservatives, originalists, this is going to be a culmination of a sort of long process of movement towards this presidential removal power, solidifying what is sometimes called the unitary executive and cutting some of the independence from independent bureaucratic agencies, which has often been critiqued as sort of the runaway administrative state. So in Trump v. Slaughter, we have essentially the 99 percent overturn of Humphrey’s Executor. Maybe Roberts leaves like a 1 percent of it. I’ll talk to in just a minute, but give us just the historical background of this of Humphrey’s and how this movement got started to overturn Humphrey’s and revive the notion that really the president is in charge of the whole executive branch. John McGinnis (10:06): Yes. Well, this is a predictable decision. It’s a predictable decision because it is as you say, Humphrey’s Executor was in the crosshairs of the conservative legal movement, and it’s easily attacked because its originalist bona fides are weak and because there were always counter principles in the law. It’s not as if a Humphrey’s Executor was the only word on presidential removal. Now, I think we need to begin with a case called Myers, which Taft, of course, who had been president, wrote, and in that case, he suggests that the president does have the ability to fire any officials who wield executive power. Humphrey’s Executor came down, though, after the New Deal started, and it came down with respect to the FTC. And the FTC also exercised what they called quasi-judicial or quasi-legislative powers, what we call rulemaking and adjudicative functions within agencies. And the court said there that because of those functions, Congress was able to insulate the heads of those departments from presidential removal. (11:26): They could be removed only either for cause or malfeasance and neglect of duty. So that was these dual cases, which seemed in some tension with one another. The tension was even exacerbated by Morrison, the independent counsel case, in which the Court also allowed insulation of removal of the independent counsel. Now the problem there was the independent counsel exercised executive authority. And so they made it just a kind of balancing test. Well, you couldn’t go too far if the office was really important, you couldn’t insulate it from power. But then because of that, they actually unmoored the doctrine and I think opened the doctrine up to the claim that it’s just judicially made up. And there have been a series of cases that have essentially chosen Myers over Humphrey’s Executor, a case called Seila Law, for instance, in which the Consumer Financial Protection Board, which had a single director but did have quasi-judicial and quasi-legislative functions. (12:36): The Court said, “Well, it’s different from the other agencies because it has only a single director.” And the other agencies had more and that meant they were less of an affront to the president’s authority because at least he could appoint some people from his own party. So all of that allowed, I think, Roberts to do what he often does to say, “Well, Humphrey’s Executor has been whittled away by a series of decisions,” a series of decisions that not coincidentally Chief Justice Roberts wrote himself and said, “Well, this precedent, we have to actually go back to the original meaning to decide things here.” And the best understanding of the original meaning is that the president does have this authority because he has all executive authority that is vested in him under Article II. And that implies removal authority just because he can’t oversee the executive branch himself. (13:35): He has to oversee his own assistance. And particularly because of a contemporaneous Decision in 1789, which Congress debated this question and gave the president removal authority. So this decision was I think really one of the decisions that was most clearly foretold because it is been I think really in some ways as much as the abortion decision, Roe v. Wade was thought to be anathema to the rights aspects of the Constitution and making up rights. This was really thought to be anathema to the structural sense of the Constitution, both because it seemed to violate the text of the Constitution and because it struck at the heart of accountability. Who was accountable for these branches if the president was not accountable? And so there was also a functional idea and these two ideas came together and I think for the majority in this case made this a relatively easy case to decide. John Grove (14:45): I’m going to play devil’s advocate a little bit on this case. I liked Justice Gorsuch’s concurrence here, which I often like Justice Gorsuch’s concurrences. I feel like whenever he concurs, there’s always something that needs to be said that usually John Roberts is not wanting to say. But I really liked his, because he approves of the result of course, but he’s not triumphant about it. He recognizes that it sets up a potential concern in that Congress established a lot of these independent agencies specifically with the idea in mind that they would not sort of just be going with the wind of the president, that they thought these are sorts of regulations that we really don’t want going back and forth every four years. And so for Gorsuch, he says this just raises the question of non-delegation, which is something Roberts, and you’ve written about this very intelligently, that Roberts seems a little bit more skittish about bringing that up than some like Gorsuch do. (15:37): But I’m going to bring up just the broader institutional perspective. Is this consolidating a lot of power in the hands of the president in a way that even if the sort of legal arguments about the vesting clause are right the Founders never really sort of had this sort of thing in mind because we have so much regulatory power that has been handed over to the executive that now whatever they had in mind for the unitary executive would not have been wielding this much power? So that’s sort of the institutional question. And then sort of the legal question, I guess, I noticed that in Robert’s opinion, he calls rulemaking executive power through and through. He says, so the power to flesh out statutory regimes through discretionary actions largely outside the remit of courts is executive through and through. But a lot of times we think about this sort of rulemaking power as kind of legislative. (16:32): So in some ways these agencies can be seen as wielding legislative powers. So doesn’t that give the legislature some ability to put restraints on the agencies that they’ve delegated that to? John McGinnis (16:47): Well, this goes back to a big debate between functionalism and formalism in administrative law, because of course the difficulty with saying that the executive branch is wielding legislative powers is that raises di…

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The Harmony of the American Founding Jul 07, 2026

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Is America the product of a long line of constitutionalism dating back to the Magna Carta, or a radical break with this tradition? Is it liberal or classical? Scholars and statesmen have been debating these questions since the Founding. In his book, Harmonizing Sentiments, Hans Eicholz explains how the American Founding wove together a number of these disparate but reinforcing threads. Related Links Harmonizing Sentiments: The Declaration of Independence and the Jeffersonian Idea of Self-Government, Second Edition, by Hans Eicholz“The Jeffersonian Ideal,” a book review on Harmonizing Sentiments by Michael Lucchese Transcript James Patterson (00:06):Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty and associate professor of public affairs at the Institute of American Civics at the University of Tennessee. Our guest today is Hans Eicholz, a historian and a Liberty Fund senior fellow. He is the author of the book we will be discussing today, Harmonizing Sentiments: The Declaration of Independence in the Jeffersonian Idea of Self-Government published on Peter Lang Press, and now in its second edition, very fitting giving the time of year. (01:16): Prior to beginning recording, Hans agreed to do something very important, which is to give a few thoughts on the now late Gordon Wood, who tragically died as of this recording only two days ago. So, Hans, could you please do that for us? Hans Eicholz (01:33):Yeah, it’s very appropriate to remember Gordon. Gordon Wood, he is one of the great historians of our day and certainly of the period that is leading into the anniversary of the 250th and it’s just a tragedy that he didn’t make it to this July 4 anniversary. But few people have put that anniversary on the map like Gordon has done through his various works and he was extremely important to a whole generation or generations of historians, my generation as well. I first met him in the late 1980s and he was brought together with a number of other historians to comment on a chapter that I had actually written for my dissertation and he was just very generous with his time and a delight to be with and very insightful, of course, as he always was in his work. But for my generation, very important for stimulating debate over the nature of the American political tradition. (02:41): His first book, The Creation of the American Republic, drilled down pretty deeply into the question of republicanism and republican ideas and their roots both in the ancient world and then bringing them forward through Machiavellian and what’s called a classical republican tradition of thought to develop how that framework helped to influence the American political experiment. And so that first book was a wealth of information and raised so many interesting points that scholars like my own advisor were able to engage in a very productive debate over whether the American experiment was fundamentally classical republican and conservative and to what extent more modern liberal ideas of individual freedom and political economy were influential in their outlook. Lockean ideas, which was the previous interpretive school that had predominated before the Republican, what’s often called the “Republican Paradigm,” came to prominence in the late ’70s and early ’80s. Gordon was one of the ones to really bring out the rich source material of that whole way of looking at the American founding and that was with his first book. (04:00): But he continued to make that kind of fundamental contribution through really drilling down into the primary sources of American thought and pulling out other strands too. So The Radicalism of the American Revolution, another great milestone really brought out some of the early Democratic ideas and how they challenged that Republican, more deferential political culture that had preceded the time of the Revolution, of the Declaration, and what that meant for the rising generations and how that created a wonderful and fertile mix of debate that informed everything from the ratification through the early Republic. And then he went on to look at how liberal ideas also influenced that. So Empire of Liberty, but also his book on Power and Liberty, a very readable book, but going down into the liberal concepts of order as basically self-propagating and possessing an orderliness that was more spontaneous rather than politically generated, how that influenced and leavened the debates over the American political tradition and understanding. (05:23): So in each of these cases, he really was one of the main contributors to really fleshing out all of the different themes that you can find in the debates over the American Revolution and Founding periods. His loss is a tremendous loss and our heart goes out to his family and to all of us who relied so much on his insight. James Patterson (05:49):So rest in peace, Gordon Wood. I don’t think there’s a single person in my extended network of scholars that I work with who weren’t touched by his work or even by meeting with him or talking with him. And this account you have of him with your dissertation chapter really does testify that not only was he an excellent scholar, but he was a wonderful teacher and a very good man. Hans Eicholz (06:14):Yes, absolutely. And he will be very much missed. James Patterson (06:19):Well, on that somber note, we’ll move from discussing the legend to maybe the next legend, Hans Eicholz. Big shoes to fill here, but we’re talking about a book that you published about 20 years ago, Harmonizing Sentiments. And the reissuing of it today is it’s an important thing to do in the 250th anniversary of the Declaration of Independence. So why don’t we start with a discussion of what you think Jeffersonian self-government means? Hans Eicholz (06:52):Yes. No, this is good and it really does follow up from what we just talked about with respect to Gordon’s work. The original edition did come out in 2001, so 25 years ago, quarter century. So if we’re going to keep to that idea of anniversaries, it’s rather appropriate. And we’re now approaching in 2026, the 250th of the anniversary of the Declaration. The first edition really was to try to bring out some of the interesting overlays and various themes that you could say by the 1990s had left people somewhat perplexed as to whether or not there was a coherent American political understanding at the heart of the revolution. I’d spoken just moments ago about Gordon’s contribution to what was called the Republican paradigm at that time or the Republican interpretation. And for many people that had taken on such solidity and such paradigmatic dominance that it invited people to try to find all of the ways in which it was not the only way in which to conceive of the relationship of the individual to the state or of the state to society. (08:17): One of the things about Republicanism was supposedly its look to the ancients, the fact that it found a place for ideas of virtue and self-sacrifice as opposed to the earlier Lockean conception that was represented by such writers as Lewis Harts and others who had tried to argue that or didn’t try but seemed to be generally accepted, had argued for a kind of Lockean liberal paradigm before. Finding all of this stuff from ancient political thought really did open up a whole new way of thinking about the American political understanding. And for a long time it seemed then that Republicanism was going to be the overarching paradigm for looking at the American Revolution. And a number of people, including my own doctoral advisor, were very instrumental in pushing back against that saying, well, “What Is Still American in the Thought of Thomas Jefferson?” was one of the best known articles of Joyce Appleby on that question and attempted to pull out some of the still liberal understandings of individualism, of the nature of liberty, of the fact that government was not so much to cultivate virtue but to be focused on the provision of law and also to be restrained as a force so as not to interfere with the entrepreneurial and creative aspects of individual freedom, which were to basically well up from the ground up and not necessarily something that you would see created by government as opposed to individual entrepreneurial action. (10:07): So she wrote about those aspects of the American Revolution. Others brought in different themes. So you’ve had people come back with ideas of religious liberty and the importance of the covenantal tradition. You had others coming in talking about the importance of law and the common law specifically, which did not necessarily have a connection to Republicanism in the broader political theoretical framework, but a very sort of nuts and bolts legal approach that looked at the common law’s emphasis on precedent and customary legal understandings and their development. You had others who looked at constitutionalism and what that might have meant. So I think of Trevor Colburn, for example, The Lamp of Experience and he talked about the ancient Saxon myths of a primordial constitutionalism that was popular certainly with Jefferson, but also with Adams and others who talked about liberty as something that went back before Magna Carta. (11:10): In fact, one of the interesting things developed there was the idea that Magna Carta was not a grant by the king, but it was an affirmation of rights already existing from time out of mind or time immemorial. And this was a notion that was often associated with the ancient Constitution of England or the old Anglo-Saxon Constitution. So you had all of these different languages then that were being rediscovered, if you will, in the ’90s and a number of people were coming forward and saying, “well, we have to accept that there was just a plethora of languages, a virtual babel of languages, and there was no coherent specific tradition out of which American ideas came, but we just have to accept that there were all these tensions and even contradictions and that’s where things stood.” When I wrote the first edition then, that was the primary state of the historiography. (12:16): And what I thought was there are a couple of important ways in which all of those different approaches to understanding America and its formative period from the revolution through the constitutional period could be understood as overlays of a very consistent set of concepts all relating to the notion of self-government, that Americans accepted that self-government could be individual and personal, that both the liberal as well as the ancient Republican notions could actually fit together if you understood that self-government had this personal dimension to it. And if you looked at some of the earliest conceptions of government, what it means to govern, they often began with government of the self and were used that way. It’s very clearly that was what Jefferson meant by it. But if you look at some of the very earliest dictionaries of that time, that notion that government was to be the government of one’s own passions, for example, as a prerequisite for engagement in the political, you can see that there’s a direct line of personal individual liberty and political liberty. (13:39): So my effort then was to look at these different overlays as being complimentary concepts that when taken together and related one to another could be shown to comprise a, what would you call it in modern parlance, an ideal typical understanding of the self-governing American or revolutionary. And that linked all of the different strands of constitutionalism, political economy, political theory, law, and faith. All of those things worked together and it gave a new, not a new, but I would say, underscored the importance of Jefferson’s later reflection on what he did as embracing the harmonizing sentiments of the day. And it came together very nicely as a title, but that referred to a letter which he wrote where he specifically said, “My purpose was not to do something original or to create thoughts never before conceived of, but to bring forth what was of the American mind of that time, the harmonizing sentiments of the day as embraced in various books such as Aristotle, Locke, Sydney.” I mean, right there, he brought together all of the various themes that historians were interested in that time period. So that was the first primary reason for the first edition. James Patterson (15:15):It’s funny, between Madison and Jefferson, there are so many of those pithy phrases that you can use as titles that will never run out. Hans Eicholz (15:27):Right. Yeah. I’ve often thought that, boy, I wonder why somebody hasn’t thought of that as a title before, but I was ecstatic. When it hit me, I think I was commuting to work and sitting in traffic when it suddenly hit me. I said, “That’s actually the title. It is the harmonizing sentiments of the day.” James Patterson (15:49):That’s always a good feeling. You don’t flinch from talking about slavery and the discussion of the Declaration of Independence and its reception in England. Samuel Johnson uses the hypocrisy argument and “Taxation no Tyranny.” And you describe how the Patriots insist that slavery was an institution imposed on them. Where did they get this argument and is there any truth to it? Hans Eicholz (16:17):So this is really quite fascinating. So of course, this is an important part of the discussion over the nature of the Declaration. And when I took up the question first in the first edition, the Declaration seemed like the most natural place to begin a discussion of the ideas of self-government in part because it had both a philosophical beginning but also a very practical and legal argument in the grievances themselves. And so trying to put all of these different concepts together to explain the American worldview, that document presented itself as the logical beginning point for such an analysis. So the first edition did touch on the question of slavery and did talk about it, not as Jefferson’s very particular way of looking at it, but something that was consonant with the American understanding itself. The second edition I decided because of the great importance that developed subsequently in the historiography about that slavery question really went into it a lot more. (17:31): And I’ve added a great deal more in developing the whole question of how slavery fit with the universalizable philosophical parts of the opening, but also why Congress both decided to extract the grievance that Jefferson had originally put in, sometimes counted as the 28th grievance that was not included against the king and why they did that and was it really just Jefferson’s own peculiarity to blame it on the British, as you pointed out? And a number of historians have done that and continue to do that. Was he assuaging his own guilt of the fact that he was a slave owner and yet he made these very universal arguments about how all men are created equal? Was he just trying to placate his own conscience or try to assuage his own conscience about that? The conclusion I came to was that, no, this is actually a very old argument. (18:38): You can see it raised first in regard to Adam Smith in the theory of moral sentiments. He charges the Americans with, or I should say with slave owners and those involved in the slave trade with being reprobate morally and backward looking, and how can we allow this to continue? And Arthur Lee sees this and writes a response and says, “Well, look, you can’t let yourself off the hook. This is going back…

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What Made Them Patriots Jun 29, 2026

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Hillsdale’s Bradley J. Birzer joins James Patterson to talk about the Declaration of Independence. They discuss the American colonies’ devout Protestantism, their love of the classics, and their identification with the Anglo-Saxon constitutional tradition. Birzer concludes with a stirring assessment of why the Constitution matters. Related Links The Declaration of Independence: A Radical Experiment in Liberty by Bradley J. BirzerPenman of the Founding: A Biography of John Dickinson by Jane E. CalvertThomas Jefferson and the Fight Against Slavery by Cara Rogers StevensVital Remnants: America’s Founding and the Western Tradition edited by Gary L. Gregg IIThe Language of Liberty by J. C. D. Clark Transcript James Patterson (00:06):Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring series commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty as well as Associate Professor of Public Affairs at the Institute of American Civics here at the University of Tennessee. With me today is the one and only Dr. Bradley J. Birzer. The Russell Amos Kirk Chair in history at Hillsdale College and Fellow of the Ronald Reagan Presidential Library. Today we’ll be talking about his recent book from Stonehouse Press, The Declaration of Independence: A Radical Experiment in Liberty. Dr. Birzer, welcome to the podcast. Bradley Birzer (01:18):James, thank you. I’m so glad to meet you and of course the audience doesn’t know this, but we’ve already had 10 minutes of joking around. So it is so great to meet you in person. I have followed your career for quite a while now and you’ve been a great ally. James Patterson (01:35):You start the book with American colonists being decidedly English in their patriotism and in their point of view. So how did this self-consciously English perspective lead almost ironically to an independence movement? Bradley Birzer (01:50):Yeah, thanks, James. That’s a great question. I don’t know how to say this without sounding cocky and I definitely don’t mean to sound cocky about this, but you know AIER came to me exactly two years ago in a month. So, 25 months ago, they came to me and asked me to write this book. And at first, the way we laid it out was that it would be a synthesis of everything that’s been written on the Declaration of Independence. And that’s why at the beginning of the book I give credit to the Jaffa students and the Straussians and to the Voegelinians because I’m really interested in trying to tie together all the various views. But the one thing, and again, this is where I don’t mean to sound cocky at all, but the one thing that I came across that hit me really hard that nobody has done, and I think there are probably good reasons that nobody has done this. (02:48): Nobody has actually explained, I wouldn’t call it the English character, but what I would call the Anglo-Saxon character of the American colonists. You can find some classicists in the ’30s and ’40s who mentioned this and mentioned that Tacitus was a big deal, or Hengist and Horsa, the original Anglo-Saxon Invaders of England. But when I started digging into it, I found that it wasn’t just Jefferson who was totally taken with Tacitus and with Hengist and Horsa, but that all Americans really saw themselves as the original descendants of the Anglo-Saxons. And James, one of the reasons that I think we lost this view is if you look at American history in the 1830s and ’40s, Anglo-Saxon becomes a synonym for white Protestant and it takes on racialist connotations. When I say Anglo-Saxon in my book, I don’t mean race at all. I’m talking specifically about language, culture, and law, and those are the things that the Americans really embraced. (04:03): And so again, one of those things that people have known about but no one talks about when the Declaration was printed in book form on July 6, 1776, two days after its passage, it comes with this 20-page introduction to it by somebody who took the name Demophilus. We don’t know who that is. We think it’s a radical Pennsylvanian by the name of George Bryan, but we don’t know that. That’s a guess. But if you look at this introduction, it starts with the history of Hengist and Horsa, the two great Anglo-Saxon invaders of Britain, the ones the Celts are fighting. It starts with them, and it ends with the passage of the Declaration of Independence being the most recent act of Anglo-Saxon history. And again, as far as I know, unless I missed something, James, nobody’s written about that. And so again, I never went into this project trying to be unique or original. (05:07): That wasn’t what the project was meant to be, but that was the thing that I found that hardly anybody else has talked about. And again, I believe that’s mostly because we associate Anglo-Saxonism with racism. And that’s unfortunate. That’s a corruption. That’s not the original. These guys, Hengist and Horsa, weren’t running around saying, “Yeah, we’re white guys.” That’s not what they were doing at all. So that’s something that I’m very proud of with the book that I think I did make an original contribution. James Patterson (05:40):You actually describe at one point the militia at Lexington as assuming show of force, not as a way of intimidating the soldiers, but almost to show a sense of mutual respect, right? This is a form of recognition. Maybe explain that. Bradley Birzer (05:58):Yeah, I take that argument from Bruce Frohnen. I’m not sure if you’re familiar with Bruce. James Patterson:Oh, sure. Yeah. Bradley Birzer:Yeah, good. I mean, Bruce is a great scholar, and he had an essay, and it’s not something he’s focused on, but he had an essay in a book called Vital Remnants that Gary Gregg published about 20, 25 years ago. And in that essay, Bruce really talks about the Anglo-Saxon medieval tradition of militias and how in Anglo-Saxon … Now sometimes, and James, I had to be careful with this as well. Much of what the colonists believed about Anglo-Saxon history is probably not true. They believed it, and they believed it was true, but it’s probably more mythological than it is true. But the myth becomes reality because they believe in it. They’re not lying. They actually believe in this. But one of the stories that the Anglo-Saxon Americans told themselves, and I think Bruce Frohnen is amazing on this, they basically told themselves that there are these whole series of ways that a community can show its displeasure with the king. (07:14): And the absolute final way of showing your displeasure is by arming yourself and standing there with your arms protecting your community. In the American tradition, once South Carolina did that, it’s secession. And so we in the American tradition tend to think, well, look, if you’re armed, you’re seceding. That is not the Anglo-Saxon tradition. The Anglo-Saxon tradition is, look, we’re at the end of our rope. You guys have pushed us as much as we can. Now we’re arming ourselves. It doesn’t mean you’re not our king. It just means that you have done things that we don’t agree with and we’re going to demonstrate with arms. And that’s exactly … There’s a great … and I’m a Catholic, but there’s a great Protestant minister at Lexington by the name of Jonas Clark, this deep Calvinist minister. And Clark convinces the people of Lexington. Look, we have to stand. (08:14): I mean, this is it. If we don’t stand here and show our colors, the British will never respect us at all. And of course, it doesn’t turn out that way. It’s a bloodbath at Lexington, an absolute blood bath. The just horror of horror shows there with a British open fire on the militias as well as into the crowd of civilians. They’re not firing directly into the crowd, but the crowd is right there. And so it’s just a nightmare what happens. But also it’s one of those things, and I think I put this in the book, and I was trying to be dramatic about this, but my argument is essentially once the first Lexingtonian is killed, he’s the first American. That’s the first time we could say: This is an American. Because it changes the whole consciousness to be Voegelinian for a moment or Barfieldian. It changes the whole understanding of who they are and they’re no longer just citizens of Lexington. (09:14): They have become Americans. And at that point, there is a kind of secession. But note, and I make a big deal of this in the book. We’re fighting with the British as early as April 19 of 1775. We still don’t declare our independence until July 2 of the next year. So we are openly at arms with the king for 14 months before we secede. Again, I think that’s very hard for us in 2026 to understand. It was not hard for them to understand. It was part of that Anglo-Saxon myth. That’s what you do. James Patterson (09:52):How out of step were the American colonists from the culture of the mainland or the motherland, even the British regulars. I’m sure at least some of them, when they saw the formation at Lexington, were like, “What is going on with these people?” Bradley Birzer (10:06):Yeah, absolutely. I mean, there are two things I would say about that, James. It’s a great question, but think about this. I mean, just even physically, Americans on average are about five to six inches taller than their British counterparts because of nutrition. And you think about someone like George Washington at 6’2”? That would basically be the equivalent of about 6’6” for us. He’s a giant, and when he’s on horseback, of course, he looks amazing. He looks like a centaur. He’s a mythic figure for the Americans. So even physically, we don’t look like the British, but there’s another real difference. The British are recruiting their soldiers from the lower class. And so when they come to America, and this is something we don’t often think about, but you and I, James, we could go through letter after letter after letter and document of colonial Americans, and we would never find a cuss word or a swear word. (11:16): And you know, if a bunch of guys are in a bar or a pub, they may cuss, but it was completely unacceptable to cuss in public, and especially around women. But the British soldiers did this all the time, and they catcalled, and you’re in a place like Puritan New England, where women are treated with almost complete dignity. Man, I mean, it’s no wonder the Boston massacre occurred. I mean, you’ve got these soldiers who are just lower-class dregs walking around a middle-class, very moral society. And so the point I want to make in this second point, James, is there is an immense religious difference between the Americans and the British at this point. I don’t want to exaggerate this too much, but imagine when the Puritans come and settle in New England, they are escaping the Anglicans. (12:15): And when the Anglicans come to Virginia and settle, they are escaping the Puritans. When English settlement is going on in North America, it’s at the same time as the English Civil War and the English Reformation. So these are a deeply, deeply reformational people. These aren’t Germans, where they can say, “Yeah, we had that conflict with Luther 200 years ago.” These are people who are coming over in the midst of their reformation. And I always get frustrated with this, James, and feel free to push back on this. Whenever scholars emphasize, well, there’s this great enlightenment project of the Americans, I always kind of laugh at that because yeah, there are four really great enlightenment figures. There’s Thomas Jefferson, there’s Ben Franklin, there’s Benjamin Rush, and there’s Thomas Paine. And then you’ve got the majority of Americans who are so utterly Protestant. As Burke said, they are the most Protestant people in the world. (13:23): When you look at the average population in 1775, we are not Enlightenment. We are utterly Protestant. These are deep, serious Protestants. And so that would be the thing I would say, James, to your question. Again, what are the two things that are different? Well, number one, we don’t look like the British because we’ve got this great nutrition. Number two, we don’t act like the British because they’ve kind of lost their Christianity. It’s still there, but it’s not embedded in the very nature of their souls like it is both for the Anglicans in the South and the Puritans in the North. And just good Presbyterians and Quakers! Everywhere you’ve got these intensely religious groups in America. And again, I think that’s very hard for us in 2026 to understand, but it was very hard for the British to understand in 1775, too. And I’m taking this, by the way, I want to give him credit. (14:26): I’m taking this argument about the Protestant culture from J. C. D. Clark, his great book, The Language of Liberty, I think, is one of the greatest books written on the Founding. Again, just great stuff. I don’t want to give myself credit. This really is coming from Clark in his argument. James Patterson (14:43):Yeah, I know the interest in describing the American Revolution in Enlightenment terms, I think, is a kind of twentieth-century project to maybe open it up to more people because of how Protestant it really was, as well as a consequence of those guys having a lot of writing. Jefferson had the little machine that made copies of every letter he wrote. Bradley Birzer (15:07):Absolutely. And those guys matter. I mean, when you’re talking about Franklin, Jefferson, Rush, and Paine, those are serious guys. So I don’t in any way want to downplay their influence. I just want to suggest that they’re unique in what they’re doing. James Patterson (15:25):So speaking of the Protestantism here–and this is something you go into in a way that I really appreciate because I’ve talked about it too–is that one of the early causes for the American Revolution was the Quebec Act that the English Parliament passes. Then there’s the line in Common Sense where Paine describes monarchy as akin to popery. So how anti-Catholic, not just Protestant, but how anti-Catholic was all of this and how did it get bound up in the politics of allying with the French? Bradley Birzer (15:55):Right, right. No, again, great question, James, and a complicated one. I would say this, the Protestants–and I’m trying to be objective here, even though I’m speaking as a Roman Catholic–the Protestants don’t know what they’re talking about, but they believe very seriously that the Roman Catholic Church is on the verge of worldwide tyranny. The Catholic Church is the force of regression and superstition. It is the force of darkness. It is the opposite of Enlightenment. And so for American Protestants, most of whom who would never in their life have met a Roman Catholic, the Roman Catholic Church is everything they oppose. And so when the British, and of course we in America, we call the Quebec Act one of the Coercive Acts and the Intolerable Acts, that was not what the British saw when they granted rights to the people of Quebec, they basically thought, we’re being good and liberal. (17:00): We’re being humane. We’ve controlled these guys militarily since 1759 and by treaties since 1763, now it’s time we give them independent rights. And so the Quebec Act, which is passed in late June of 1774 says two really important things. Number one, it allows Catholics in New France–well, not New France anymore, I’m using that anachronistically, but in Quebec–it allows them to have bishops and that had never been allowed. And one thing we have to keep in mind, and this is part of the extreme Protestantism of America, even among sects in America, when we look at that, even when you have people like the Methodists who have bishops or the Anglica…

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Tinfoil Hats in the White House Jun 15, 2026

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Conspiracy theories have always played a role in American politics, especially at the presidential level. In his new book, Stephen F. Knott explores the history of this phenomenon from the Jefferson administration to the present day. He joins Law & Liberty contributing editor James Patterson to discuss why presidents resort to conspiracy theorism so frequently. Related Links Conspirator in Chief by Stephen F. Knoff“Conspiracy in the White House” by David Head, Law & Liberty (book review)Coming to Terms with John F. Kennedy by Stephen F. KnottThe Lost Soul of the American Presidency by Stephen F. Knott Transcript James Patterson (00:00:06): Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. My name’s James Patterson, contributing editor to Law & Liberty and associate professor of public affairs in the Institute of American Civics at the University of Tennessee. With me today is my guest, Stephen F. Knott. He’s the Thomas and Mabel Guy Professor of American History and Government at Ashland University and Professor Emeritus of National Security Affairs at the United States Naval War College. He’s the author of many books, including The Lost Soul of the American Presidency and Coming to Terms with John F. Kennedy. (00:01:17): These are both from the University Press of Kansas. Today we’ll be talking about his most recent entry, Conspirator-in-Chief: The Long Tradition of Conspiracy Theories in the American Presidency. Professor Knott, welcome to the podcast. Stephen Knott (00:01:31): Well, thank you, James. It’s always a pleasure to reconnect with you. You’re still looking youthful and vibrant and I’m very impressed. James Patterson (00:01:42): Let’s just start from the beginning. Are you tired of the chemicals they’re putting in the waters that make the presidents crazy? Stephen Knott (00:01:53): Yeah. Well, it’s interesting you should mention that because of course, if we were talking about this subject in the 1960s, even into the ’70s, fluoridation of the water supply was a big issue. And folks … James Patterson (00:02:06): Right. Stephen Knott (00:02:06): … in the John Birch Society were convinced that that is precisely what was going on, that our precious bodily fluids were being contaminated by some communist serum that was being injected into our drinking water. So yeah, James, James Patterson (00:02:19): That’s it. We needed to listen to General Turgidson. Stephen Knott (00:02:24): That’s right. Yeah, Buck Turgidson. Yep. James Patterson (00:02:29): So this book is about conspiracy theories not against presidents but held by presidents. What an incredible subject, first of all, but also how alarming is it that there are so many cases? Stephen Knott (00:02:42): Yeah, I think it is alarming, James. And I’ll tell you, I first sort of stumbled upon this when I was writing the previous book, you mentioned The Lost Soul of the American Presidency, where I talked about presidential use of demagoguery. And it was amazing how often conspiracy theories came up, whether it was Jefferson’s minions circulating rumors that Hamilton was a British agent or Woodrow Wilson attempting to portray anti-war opponents in World War I as agents of the Kaiser or whatever. So that’s what got me onto it. And yes, I do find it a disturbing feature, but I try to end on a positive note. We’ll talk about this later, I’m sure, but not every president has succumbed to the conspiratorial rumor-mongering temptation. James Patterson (00:03:34): We see at the beginning of the book, one of the most high-highs and low-low figures is Thomas Jefferson in American history. So he writes the Declaration of Independence. He’s a pivotal figure in starting the defense of religious liberty in the United States. But there’s another side to him that really comes out when he’s in the Washington administration and really flowers once he becomes president. So what are we looking at with him and conspiracy theories? Stephen Knott (00:04:07): Yeah, Jefferson’s fascinating because he was such a complex man. I know that’s kind of a cliche thing to say about him, but he did have this incredible capability of compartmentalizing certain aspects of his light. And the Jefferson, who was the great rhetorician, the poet of the American Revolution and whose poetry I greatly admire. When it came to street politics, if you will, the guy was very capable of playing down and dirty. And I’ve often said that Jefferson is kind of the founding father of the politics of personal destruction. And I’m talking particularly about Jefferson’s take down of Alexander Hamilton and some of the other Federalists. Instead of attempting to deal with their arguments, Jefferson always assumed that Hamilton was a closet monarchist, if not, as I said, an outright British agent. And I think Jefferson believed that as well about some of Hamilton’s allies like Rufus King and John Jay and some of the others. (00:05:15): So this portrayal of the Federalists as monarchists, as people who had betrayed the spirit of 1776, that’s what I’m sort of getting at primarily with Jefferson, that he had a tendency to view anyone who disagreed with him as somehow corrupt and ultimately treasonous. And that’s an aspect of Jefferson’s life that I don’t think a lot of Americans are aware of. And while I hate to rain on our 250th birthday party, again, I certainly admire Jefferson’s language in the Declaration of Independence. As a political figure, he was frequently taking the low road. James Patterson (00:05:59): The targets for Jefferson were many. I mean, Hamilton as a person, Adams to some degree, also Washington, which is a shocking thing that I think people have in mind, but also were institutions. So he has the First Bank being one. What was his concern with the bank? Stephen Knott (00:06:16): So with the Bank of the United States, on one level, he was concerned that the subject of the bank had come up at the Constitutional Convention and it was not included in that list of enumerated powers that one sees in Article 1. So in Jefferson’s view, I think constitutionally speaking, there was no authority given to the federal government to create a bank. Beyond that, however, Jefferson was always fearful of any sort of public and private mixing. And the way Hamilton conceived of the Bank of the United States, there would be precisely that. There would be some … James Patterson (00:06:55): Right. Stephen Knott (00:06:55): … East Coast bankers mixing with public servants of sorts on the Bank’s board that was in Jefferson’s view, that’s corrupt and the public should remain sacrosanct, should remain completely separate from private interests. And I should add to that, James, I think there’s just both in Jefferson and his party and the party that still to some extent views him as a founder, the Democratic Party of today. There’s just a skepticism directed towards East Coast banking interests in terms of what they see as a kind of disregard for the common man. James Patterson (00:07:36): Yeah. The Bank and Hamilton are really not separated in the minds of Jefferson. And so he sends Gallatin after the records here. And what evidence of conspiracy does he find in the records of the Department of Treasury? Stephen Knott (00:07:50): He finds none, James. He finds nothing. Much to his despair. James Patterson (00:07:55): So conspiracy is solved, right? He clearly drops the conspiratorial thinking at that point, right? Stephen Knott (00:08:01): Absolutely not, James. He now is more convinced than ever that Hamilton is so adept as a conspirator that he has successfully hidden any record of his malfeasance. James Patterson (00:08:13): And this gets to the problem with all of these cases, which is evidence that the conspiracy is false becomes evidence that the conspiracy is true. What on earth is going on with people that make their way all the way to the top of political authority in the United States that they believe they’re powerless? Stephen Knott (00:08:32): Yeah. Well, it’s an interesting theme, I think, in the book, James, in that all of these men, and they are all men that I discuss in the book, are convinced to some degree or another, some more than others, that there is the kind of inside ring, as I think Andrew Johnson put it, or a deep state as the current president puts it. They all do share that view that somewhere there is this secretive cabal that’s truly pulling the strings behind the scenes, that’s untouchable by public authorities or certainly by the general public. That is one of the consistent threads that exists, I think, in the minds of these conspiratorial-inclined presidents. And by the way, that is a view, I think, shared widely by many Americans that what you see on the surface is not the truth. It’s always something hidden, always something behind the curtain that you and I are just not privy to. James Patterson (00:09:32): When you look at the conspiracy theory of Jefferson, it’s really focused, as you said, on the monarchists that are in our midst, even by the 1810s and 1820s, the idea of betraying the country to the UK during the War of 1812 comes up. But the part that I really enjoyed from the book was a greater historical detail on something from Jefferson’s actual presidency, which is the Embargo Act. And it points to how even as far back as then there’s this also not just concern about banks, but of trade. What is it that connects Jefferson’s conspiracy theory to trade? Stephen Knott (00:10:13): Yeah, I think in Jefferson’s view, he really hoped for a new nation, a new order for the ages where you and I and every American citizen would basically be living almost something of a subsistence existence where we’d grow our own food, make our own clothing, et cetera. The more one becomes entangled with others and the more commerce and trade becomes the sort of centerpiece of our lives at that point we begin to drift away from our adherence to liberty, to the enlightenment principles that Jefferson hoped for this country. So cities are seen as corrupt, banks which are always located in cities are seen as corrupt influences. Those common folk who work in cities or later in factories, they are not truly free. They are subject to the whims of their corporate owners. They’re the people who employ them. So you are not truly free unless you live a kind of subsistence existence or you happen to own a plantation on top of Monticello. James Patterson (00:11:26): And the great talent that he recruits in the spreading of these conspiracies is a man named James Callender, who I believe, I was looking for the quote he has about John Adams as a “hermaphroditical character, neither the force and firmness of a man or the sensibilities of a woman.” And of course gave us “bastard brat of a Scottish pedler” for Hamilton. So the final part of conspiracy theories is always that they find their way into the press and that’s where they connect to that audience you were saying where people are generally suspicious to kind of share in this conspiracy theory. So what was Callender doing with Jefferson? Stephen Knott (00:12:04): Yeah, he’s an interesting character and he is one of Jefferson’s journalistic hatchet men. It’s Callender who reveals to the general public that Alexander Hamilton had an extramarital affair with Maria Reynolds. (00:12:19): Callender prints that in 1797. That story had first come to the attention of Jefferson’s insiders in 1792 when Hamilton was Treasury Secretary. Those insiders thought they were on to a financial scandal, some sort of insider trading in the Treasury Department. Instead, they had stumbled upon an extramarital affair that Hamilton was having and he was paying hush money to Maria Reynolds’ husband. It seems to be now the two Reynoldses were extorting Hamilton, but that’s a whole separate issue for another show. James Patterson (00:12:55): That’s your conspiracy theory. Stephen Knott (00:12:56): That’s right. That’s my conspiracy. You’re absolutely right. None of us are immune to these things. James Patterson (00:13:02): No. Stephen Knott (00:13:03): But Callender’s the guy who makes this public. I’m fairly convinced that happens at Jefferson’s behest. He had a fairly tight control over his political machine. In 1797, Jefferson is looking at the election of 1800 and the one man he truly feared was Alexander Hamilton. And this story was an attempt, as I said earlier, to destroy or to engage in the politics of personal destruction and blunt any Hamiltonian desire to become chief executive. James Patterson (00:13:34): Did he ever compensate the Reynoldses for losing the hush money? Stephen Knott (00:13:40): Not that I’m aware of. Now, James, let me add, please, I can’t with this pass. No. It’s Callender who will turn on Jefferson. I know you know this. Jefferson wins the presidency in 1800. Callender wants to become the postmaster of Richmond, Virginia. Postmasterships were prized patronage jobs at that time. Jefferson says, no. What does Callender do? He publishes the story about Jefferson and Sally Hemings. So, there was some sort of justice I think there in Callender terms. James Patterson (00:14:10): Yeah, a parallel kind of story here. Yes. And I believe Callender, doesn’t he just end up dead in a river somewhere? Stephen Knott (00:14:18): Yes. He does. He does. He ends up dead in a fairly small body of water, which if Oliver Stone were around back then, it would’ve made for a great movie about how this guy was done in by some of Jefferson’s minions. That’s not the case. I’m not saying that, but- James Patterson (00:14:36): My stock joke is that if he hadn’t been found in that body of water, he would’ve been found leaning his gun shot in the back of the head. Stephen Knott (00:14:46): That’s correct. James Patterson (00:14:48): So this is early in the Republic where we’ve got sex, intrigue, rifling through old files to find money trails, and the Bank enriching an elite that’s so capable that they can avoid accountability even from the president. And all of this is laid at the feet of a cadre of monarchists. And then the next case is King Jackson. So it’s this odd flip where the Whig party emerges in opposition to Jackson who styles himself as the heir to Washington but really governs much more like a king. And his justifications for all of these things is a conspiracy theory that is, I would say, more comprehensive even than Jefferson. So let’s get into Jackson here. Stephen Knott (00:15:39): So Jackson in a sense builds on the foundation that Jefferson has built, particularly in regards to skepticism towards a national bank and East Coast commercial interests, New York, Philadelphia, Boston. The perception that was widely shared in the South and in the West and Tennessee–Jackson’s Tennessee at that time was something of the West–was that these East Coast interests were constantly tucking it (00:16:08): to the common man, whether it was a farmer in Tennessee or a small merchant in New York City. Jackson really gives voice to that view, that fear that somewhere there is this secretive cabal that’s really calling the shots. It’s not your elected representatives, it’s these East Coast commercial interests. And Nicholas Biddle, who happens to be the president of the Bank of the United States, and even that name conjures up kind of Dickensian horrors of this elite guy who has nothing but contempt for the little man. Jackson will use his war against the Bank of the United States and his war against Nicholas Biddle, who runs the bank, as a kind of crusade to cleanse the nation’s capital of this excessive influence that this…

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The Versatile John Witherspoon Jun 02, 2026

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Who was John Witherspoon? The only clergyman to sign the Declaration of Independence, Witherspoon was a well-known fixture of political and religious discourse. Today he is, in Dr. Jeffry Morrison’s words, “the most interesting Founder you’ve never heard of.” Morrison talks with host James Patterson about his 2003 book, John Witherspoon and the Founding of the American Republic, and more. Related Links John Witherspoon and the Founding of the American Republic: Catholicism in American Culture by Jeffry H. Morrison“The Dominion of Providence Over the Passions of Men” by John WitherspoonPolitical Sermons of the American Founding Era: 1730-1805 by Ellis Sandoz Transcript Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty in this podcast are published by Liberty Fund. Hello and welcome to the Law & Liberty Podcast. I’m James Patterson, contributing editor to Law & Liberty and Professor of Politics at the Institute of American Civics at the University of Tennessee. Today, my guest is Dr. Jeffry Morrison. He’s a professor of American studies at Christopher Newport University in Newport News, Virginia. And he’s also the Director of Academics at the Federal Government’s James Madison Foundation in Alexandria, Virginia. Usually when we have guests on our podcast, it is to discuss a new book, but in this case, we’re talking about one that’s a little older than 20 years and it’s Dr. Morrison’s John Witherspoon and the Founding of the American Republic. (01:25): It’s a great book to read, or if you’ve already read it, reread given that this is the 250th anniversary of the Declaration of Independence. Since Witherspoon was not only a signer, but also the only member of clergy to sign the Declaration. Dr. Morrison, welcome to the Law & Liberty Podcast. Dr. Jeffry Morrison (01:42): Well, Dr. Patterson, James, thank you very much. I am genuinely gratified to be joining you. I’m a big fan of Liberty Fund and its various institutional manifestations and have a long history with them and I’m a fan of this podcast and so very gratified to be joining you today and thank you for the interest in John Witherspoon. And I do actually have another book on Witherspoon that’s forthcoming with Cambridge University Press. And we’re hopeful to get that imprint in this semi-quincentennial year and it’s a volume of his political writings that’s a part of a relatively new series with Cambridge called “The Political Writings of American Statesmen.” James Patterson (02:25): Oh, that’s very exciting and very needed. If Witherspoon is so important, why is he so uncommon in the list of founders that people talk about? Why is he such a rare figure in the American imagination? Dr. Jeffry Morrison (02:38): Yes, it’s a great question and partly it’s his fault, actually. And we’ll begin with that. But in a sort of semi-jocular way, I like to say that he’s perhaps the most interesting founding father that you’ve never heard of. And if we were to ask persons of his generation, he’d have been noted as one of the most formidable of the founders and indeed members of the Transatlantic Enlightenment and he was seemingly everywhere and he was at the nexus of three of the most important avenues of political culture in the colonies and the new nation, namely education and religion and politics and was equally formidable in all three of those roles. Why don’t we know more about him? Well, I joke partly it’s his fault. He was maddeningly unconcerned about what our politicians call legacy. He just was not interested in the legacy question. So shortly before his death in 1794, he ordered all his correspondence burned. (03:45): Just terrible, terrible loss to biographers and historians and political theorists as you and I are. So in compiling this volume of his political writings, which I’ve done for Cambridge, I’ve had to go to various archival sources and other collections of the writings of founders. Alexander Hamilton, for example, with whom he corresponded when Hamilton was Secretary of the Treasury. Hamilton asked him for advice on public credit and Witherspoon wrote him a lengthy response, whose language Hamilton then incorporated into his statements on public credit, for example. So that’s maddening and we don’t quite understand why he did it, but he did. That’s the first reason. Second reason is that I think not to sound conspiratorial, but I think there certainly was at the time and there continues to this day to be a little skepticism about people who are overtly religious participating in politics, holding political office. (04:49): And so I think there’s been a slight bias in the academy over the decades and now over the centuries toward a man who by our lights, I think we would say was the most evangelical of the founders. So just to give a quick contemporary example, contemporary to his time, the new Georgia Constitution written as so many of those state constitutions were post-independence, 1776, forbade ministers from holding office in the Georgia legislature. That was not uncommon. So that’s just one example of a kind of bias. Jefferson, in fact, favored a similar prohibition in the new Virginia Constitution and Madison had to gently remind him that that was illiberal and that was actually punishing with a civil penalty someone for their religious beliefs and a violation of Jefferson’s wall of separation, though it’s anachronistic to use that phrase. And so anyway, that’s I think a second factor. (05:55): The first one is his own lack of interest in his own legacy and the burning of the correspondence. By the way, some of it also was burned and his papers were burned when the British sacked Nassau Hall at Princeton during the revolution. So we are lacking a lot of primary material and paper trail that the other more famous founders were so self-conscious in preserving. We’ve got roughly 20,000 letters of Jefferson’s and I know you’re a proud Cavalier yourself and UVA PhD and I had the privilege of being a visiting professor there last year myself in Jim Ceaser’s program on Constitutionalism and Democracy. But Jefferson left behind 20,000 and carefully preserved them with that letter press. Same with George Washington, roughly 20,000 letters in a quarter century shorter life than Jefferson’s. But Washington saves every scrap of paper he can. Witherspoon doesn’t. Some are burned by the British, he orders them burned. (06:57): So those are two, I think, principal reasons why. He’s understudied, I think, and somewhat forgotten. There does seem to be a kind of resurgence or renaissance in Witherspoon studies in recent decades and I’m very pleased to have a small part in helping to bring that about. James Patterson (07:15): The future statesmen that are listening to this podcast, please do not burn your letters or delete your emails. Dr. Jeffry Morrison (07:23): Or your texts or your truths or whatever that may be, tweets or Xs, whatever we have to call these things. James, maybe you share the same concern I do as a kind of political historian and political theorist. Future generations will not have the same kind of archives that you and I have had the privilege of working in because so much of this is ephemeral. Tweets, texts, and emails and things like that, we don’t tend to write physical letters anymore. James Patterson (07:56): Yeah. It’s a concern, especially when it comes to not even now but maybe like 10 or 15 years ago when it didn’t occur to people and there are entire inboxes that have just been deleted because somebody died and they wanted to use the identification. I first had this thought when I lost access to an email address and couldn’t find something I needed. And ever since then, I’ve been somewhat compulsively saving all my email in a more Washingtonian style than a Witherspoonian one. So I do like the idea of burning the hard drives though. It goes from just throwing them in the fireplace to like a chemical fire that needs to have a control burn. So who is John Witherspoon and where did he come from? Dr. Jeffry Morrison (08:49): He was a native Scotsman. So he was born and raised and educated in Scotland and was principally known as a pastor and was, again, to use a slightly anachronistic analogy: He was a pastor of a couple of mega churches in Scotland and he was prominent in the Scottish Kirk. He was the defender of the more conservative wing of the Scottish Church, conservative theologically and conservative in terms of, well, we might say what sort of public facing. His principal adversary was a man, I’m sure you know, Francis Hutcheson, right? One of the leaders of the Scottish Enlightenment, who himself was an ordained clergyman like Witherspoon, but Hutcheson was the head of the so-called moderate party who were slightly less conservative theologically and also more interested in the public appearance of the church. And so Witherspoon was the leader of the more conservative wing of the church. (09:53): And that frankly is one of the things that got him noticed in the colonies and particularly at the struggling little college of New Jersey, which is now Princeton University, who began whose trustees and alumni like Benjamin Rush, for example, began to court Witherspoon in the mid 1760s to come to Princeton and become the president of that struggling de facto Presbyterian college. So he’s a Scotsman, he’s a churchman. When he comes to America, he’s 45 years old, he becomes the sixth president of what’s now Princeton University and he completely reforms that college, revives it. And it’s not an exaggeration to say that he probably saved Princeton from going out of existence and helped to lay the foundation for the great university it has become and I had myself the privilege of teaching there for a year in the early 2000s as a visiting professor of politics. (10:54): And there’s a Witherspoon Street there in Princeton. There is a semi-heroic statue of him on the campus, which has been the subject of controversy. But in a nutshell, that’s who he is. But when he comes to America, he begins to wear more hats and a kind of latent genius for organization, for promotion, for fundraising, for education, for politics, comes out. He had never preached a genuinely political sermon in his life until he came to the colonies and very quickly became aligned with the Patriot Cause and then of course later so he serves in the New Jersey provincial assemblies, committees of correspondence, then preaches May 17 was the 250th anniversary of Witherspoon’s most famous sermon called “The Dominion of Providence Over the Passions of Men.” That is one of the, if not the most, one of the handful of most important political sermons of the entire revolutionary era. (12:00): It’s in Ellis Sandoz’ great collection, revolutionary sermons and the fame of that and it’s reprinted on both sides of the Atlantic and widely circulated, that catapults him into the Second Continental Congress and he arrives in late June in time 1776 to argue down the more conservative faction, conservative meaning people like John Dickinson, for example, who think it’s too early to be declaring independence. And Witherspoon takes part in those debates, argues down Dickinson, arrives in time to do that, and then sign the declaration. And in my view, it’s partly speculative, but I’m fairly convinced that it’s he who introduces the language of the protection of divine providence into the text, the final text of the declaration. And then he goes on in a 26-year career as the president of Princeton to, as I say, reform, revive that institution to make it the most truly national of the colonial colleges and then the early national colleges. (13:07): It is a factory of American patriots and then early national leaders at the state level as well state judges. I have a list in that book, which you may have seen in John Witherspoon and the Founding the American Republic. The list of his graduates and the influence that he had in politics in particular is it’s just astounding. Gary Wills has called him probably the most influential teacher in the entirety of American history. I would endorse that Pulitzer Prize winner in Gary Wills. So in very brief, that’s who he is. He’s a man at the nexus of these three most important avenues of political culture, education, religion and politics and they form a kind of seamless integrated whole in his life. In short, that’s who he is. James Patterson (13:57): One of the first things Witherspoon does when he gets to Princeton is he tries to shift a kind of metaphysical point of view that he sort of vigorously opposed Berkeley and idealism in favor of his own Scottish enlightenment, common sense philosophy. This is part of the influence that he has on this, as you call foundry of statesmen, right? That they learn something that’s a little less esoteric. Dr. Jeffry Morrison (14:24): Yes, you’re exactly right about that. And you’re right to bring up Bishop Berkeley, B-E-R-K-E-L-E-Y. That’s how the Brits say it. Bishop George Berkeley was an Anglican bishop, very Orthodox in his Christian theology, but held to idealism, which is to say that he believed as other European philosophers did as Jonathan Edwards actually seems to have believed, the American evangelist, that the external world is not independent of minds. And incidentally, University of California at Berkeley is named for Bishop Berkeley in the town of Berkeley, California, though we Americans say it Berkeley, is his legacy. Yeah, it’s his namesake, that town and that university. James Patterson (15:15): So we have him to blame. Dr. Jeffry Morrison (15:20): That’s right. He has sins to answer for. That’s right. But at any rate, you’re exactly right. One of the first things Witherspoon does is to root that out, go after that root and branch at Princeton. And he basically fires all of the tutors, including Jonathan Edwards Jr., who carry that philosophy and he replaces them and it—it being the idealism—with his own version, which is kind of an amalgam of Scottish sense, Scottish common sense philosophy and Scottish moral sense philosophy. And we needn’t get too far in the weeds and it’s easy for me to get out of my depth in that as well. But basically it is, as the name suggests, a belief, a philosophical belief that is held by people like Thomas Reid, R-E-I-D, in Scotland and others. It’s kind of a forerunner one might say of maybe American pragmatism, that the external world exists independent of our minds and perceptions, that what we perceive about the external world, everything from colors to secondary qualities and things are reliable. (16:37): It is a pushback against skepticism. The skepticism of that towering Scottish enlightenment philosopher, David Hume, H-U-M-E, who likewise called into question the existence, the independent existence of an external world and even things like cause and effect. So again, without getting too esoteric, this is a word you used rightly a few minutes ago, that’s Witherspoon’s contribution to bring Princeton back to a more common sensical view of the world and our perceptions and to root that out, that idealism and that stuck for a long, long time. James Patterson (17:21): As you say, Witherspoon’s training in the Scottish philosophy and moral sense, and especially in common sense epistemology, could hardly have been better preparation for his distinguished career in American politics. And then you quote him directly saying, this is a few pages later, this is him Witherspoon: “I do not refuse submission because the British are corrupt or profligate, although probably many of them are so, but because they are men and therefore liable to all the selfish bias inseparable from human nature, I call this…

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The Future of Dynamism May 18, 2026

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Talking to guest host Pat Lynch, Virginia Postrel discusses her 1998 book, The Future and Its Enemies, and its relevance to today’s political landscape. They also discuss potential impacts of AI, the cultural significance of glamour, cheap clothes, and the Abundance movement. Lynch ends with the question: Will market liberals eventually find a home in America’s political landscape? Related Links The Fabric of Civilization by Virginia PostrelThe Future and Its Enemies by Virginia PostrelThe Power of Glamour by Virginia PostrelThe Substance of Style by Virginia Postrel Transcript James Patterson (00:06):Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring series commentary on law, policy, books, and culture and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund. Pat Lynch (00:39):Welcome to the Law & Liberty Podcast. I’m Pat Lynch, a senior fellow at Liberty Fund, sitting in today for James Patterson. Today we’re talking with Virginia Postrel. Virginia Postrel is a well-known journalist, public intellectual, and author who has written four major books, was a previous editor at Reason, worked for The Wall Street Journal, is now affiliated with worksinprogress.co and the Abundance Institute. And today we’re going to talk about some of her work and some of the influences that she has seen throughout the development of progress and the development of abundance and this new agenda that’s very interesting. You wrote about this topic, sort of, in 1998 with your book, The Future and Its Enemies, and you make this distinction between stasis and dynamism and you argued at that time that that was a good way of thinking about the way that public intellectuals and politicians approach these sorts of questions. (01:31): It seems very, very relevant today. Can you inform our listeners a little bit about the distinction that you made in that book and whether you still think it can be useful today? Virginia Postrel (01:38):Right. Actually, I do think it could be useful today. Surprise! And the basic distinction is between dynamism, which is open-ended discovery and progress that is driven by bottom-up problem solving, bottom-up problem defining, innovation, and feedback, also. So not every new idea is a good idea, not every idea of how to solve a problem actually solves the problem. And there is this constant process of discontent also, because whatever you have, you see what could be better about it. And that’s one reason that this progress is open-ended, but it’s very much an idea of discovery, sort of a liberalism that centers discovery and curiosity and learning. “Learning” is what I say in the book. On the other side, you have what I call stasis and I talk about two different forms. One, which is the easier to understand, is people who really center stability. Their ideal society is one that doesn’t change and often they have an ideal located somewhere in the past. (03:02): It could be the Middle Ages, it could be the 1950s, it could be before the agricultural revolution. There are many different forms of that type of stasis, which I call reactionary in the book. The other form of stasis is more subtle, and much more pervasive, which is the idea of, no, we like change, we like progress, we like discovery, but we want it to look exactly the way we want it to look. And this is what I call technocracy. So this is a form of stasis that is about control. So it’s not about “nothing changes,” it’s about very directed change. And since at least the beginning of the twentieth century, technocracy has dominated liberal democracies. There was a rise of thinking that, “Wow, look at all these great things that railroads and steel mills, all these corporations that have to plan these giant enterprises, we should plan the economy the same way.” (04:09): And obviously looking back on it and especially through the lens of some of Hayek’s work, this seems obviously wrong, especially in the forms that you find it in the early twentieth century or late nineteenth century where it really is like every single bit of the economy would be planned, but it wasn’t stupid. It wasn’t stupid people saying this. It was people drawing the wrong lessons from the world that they were living in. And so I see this continuing struggle between ideals of an open-ended discovery-oriented society that is very bottom up also. So no one is in charge, no one is in control. It doesn’t mean you have no rules. You need rules, but they need to be very general and you need to be able to have nested levels of rules so that McDonald’s can say every menu has to be the same, and somebody’s one-off restaurant can have different food every night depending on what’s fresh in the market. (05:18): Just take a trivial example. So that’s the idea. And so when I was writing this in the mid to late 1990s, I was looking out at the political and cultural environment and I was seeing arguments around technology. Those days it was this new thing called the Internet. You had people on the left and the right who were saying the Internet is great and we need to let it develop. And you had people on the left and the right who were saying, “Smash the Internet!” Around immigration, people have forgotten, but there was a huge fight over immigration in the mid ’90s around the evolution of the workforce, around environmental issues, whether you should allow housing to be built in Los Angeles where I was living. Guess what? The anti-growth people won and we’re living with the consequences. So, you had all these distinctions and I argued at that time that going forward this would be a better way … Oh, international trade was another one. (06:31): Going forward, this would be a better way of understanding the political and cultural world. It turned out not to be immediately true because what intervened was 9/11 and foreign policy became much more dominant. And this was really an argument about domestic … In so far, it was about politics as opposed to the theory of how progress happens, which is another big element of the book, that sort of interfered, but we are now living in the world predicted by The Future and Its Enemies very much so. Pat Lynch (07:03):The economics, I think we can all agree that the free market approach, the bottom-up approach, Hayek’s been proven correct as compared to the planners, but the political piece I think was unanticipated. We didn’t realize what the political reaction was going to be to this sort of unplanned growth and that we crave that structure, we crave that direction. You said that this has been going on for quite a while. I mean, it goes back to Adam Smith, the man of systems. And so there’s this desire to sort of structure things out and make it more predictable. Virginia Postrel (07:30):Right. I mean, I said the early twentieth century, and I’m thinking about the actual use of the word technocracy and the idea of engineering society, but Colbert is … I don’t mean the talk show. France is the ultimate, it’s been this way since Louis the XIV, ultimate technocratic society for good and ill. They do certain things very well that lend themselves to technocracy like building certain types of infrastructure, but they cripple their economy in other ways. Pat Lynch (08:03):So, if AI is now the latest manifestation of this technological advance, whether it’s a manufacturer and the Industrial Revolution, the Internet, how is AI different from these previous manifestations of it and does it pose a greater challenge to those of us who support growth and support free markets? Or is it something that’s going to be difficult to predict? Virginia Postrel (08:22):Well, it’s definitely difficult to predict exactly how AI will be used, what its effects will be. I mean, that’s why we’re having such fights over it to some degree. But I would say that AI, getting it right is really important. I wish I could tell you exactly how to get it right, but I can’t because AI has the potential to be the ultimate technocrat, to be very dictatorial if we allow it to be. So part of the thing, I think it’s very good that we have competing AI systems, AI companies or whatever, people doing different models. I think a lot of the concerns around AI are really concerns about human nature. People pretend it’s really about technology, but the truth is it’s about the fact that every new technology, whether it’s a stone spear or AI is one that can be used for good or ill and some people are really bad. (09:34): So I think when we think about the potential problems with AI in big pictures, somebody has written, informed by my work, but not my work on AI, which is very little, that what we need to figure out is how do you protect dynamism in a world of AI? And one thing people look at is open source models, at least as being part of the infrastructure, part of the ecosystem (which doesn’t necessarily mean it can be the only kind) preserving competition, preserving entry, not letting one AI system sort of take over everything, which I don’t think despite the fact that people talk about tech monopolies and stuff, I don’t think that the system left to its own devices leads to a single system taking over the world. But I think there’s certain things that governments could do to make that more likely. Although even there, the competition among governments, China versus the US in particular might lead to more than one. (10:42): So I definitely think that the concerns about AI and job destruction are exactly the same as they always are. And my most recent book is called The Fabric of Civilization. It’s a history of technology and science and trade through the lens of textiles. And one thing that’s really obvious and people don’t know… people know about the Luddites. They’ve heard of the Luddites. Nowadays it’s used as a term for people who are sort of ideologically opposed to technology. The original Luddites were just well-paid hand weavers who didn’t want to lose their jobs, but what people don’t know is that those well-paid hand weavers who didn’t want to lose their jobs were benefiting from a previous round of technology innovation about a generation earlier, which was the original Industrial Revolution, which was about the production of particularly cotton yarn, spinning machines. Because having enough yarn or thread to weave was the bottleneck in cloth production and spinning machines broke that bottleneck. (11:50): And as a result, the weavers enjoyed what one historian called a “golden heyday.” A software engineer recently told me that everybody he knows who’s a software person is giddy about the potential of AI, but he is way upper tail and he and I suspect all his friends will do fine. There are routine programmers who may see the end of their golden heyday, and that is the process of creative destruction. I mean, you get productivity jumps in general, but there are people particularly if they’re at certain point in their lives who get left behind and that is a problem with the process. But if you stop the process, you stagnate and your economy and your society kind of dies. And I can speak about this. When I wrote The Future and Its Enemies, my profession, which is journalism, was great and now it’s terrible. So I have some personal familiarity with this process and I would say that things that have made the world very, very difficult for journalists have on the whole been good for the world if not for our individual bottom lines. Pat Lynch (13:11): So you’d say long-term, you see it as a cycle. You see it as an economic cycle driving a political outcome. But also you would consider yourself a long-term optimist about all these changes? Virginia Postrel (13:20):Yes. Long-term, I would say. Well, I’m a long-term optimist in the sense that I believe that if you pursue this, if you protect the really … We’re talking about liberal institutions. If you protect the liberal institutions and the process of discovery and this decentralized process of discovery, it is long-term good for people in general as well as having intrinsic value. Hayek kind of talks about it having intrinsic value. Progress is movement for movement’s sake, he says, but then he says it’s the way in which man enjoys the gift of his intelligence, this problem solving. I think it has more than just intrinsic. I do think it has intrinsic value, but I think it also has practical value in the way that people like Deirdre McCloskey write about. We enjoy this enormous— Pat Lynch (14:19):So from a utilitarian perspective— Virginia Postrel (14:20):From a utilitarian— Pat Lynch (14:21):Overall, we are better off as a Pareto frontier out there. Virginia Postrel (14:22):Exactly. Pat Lynch (14:25):Let’s talk a little bit about fashion or let’s talk about glamour. Let’s start with glamour. I think that before we move on to fabric. So you’ve written about glamour and I think I remember when that book came out and I thought, oh my goodness, what can this possibly be? But I found the book to be really, really compelling. Can you tell us a little bit about your book on glamour and what your view on it is? Virginia Postrel (14:47):So my book, The Power of Glamour, came out in 2013. And I always say it’s my least successful book, even though I think intellectually it’s very successful. But the reason it’s my least successful book is that people have no idea what I mean by glamour, just looking at the book and it’s not fashion, it’s not celebrity. The subtitle of the book is Longing and the Art of Visual Persuasion. So what I do is I analyze glamour as a form of rhetoric, a form of persuasion, a form of communication and I analogize it to humor. How do you know if something is funny? It could be spontaneous or it could be written by a comedy writer. You know because of the way the audience reacts. (15:38): You can’t write rules that will guarantee that something will be funny, although people have analyzed humor, written tomes about it. But I believe glamour is a word we can use to describe a similar process where the audience reacts with a sense of projection and longing. And just as humor takes many different forms depending on the culture, depending on the individual, so does glamour. What do you long for? What is it that you long to be? If only, if only I had that house, my life would be perfect. If only I had that car, if only I had that job, if only I could sit in a library surrounded by books pursuing the contemplative life, which is one of my versions of glamour, which knowing my personality has a major illusion in it, which is another element of glamour. Glamour, the word was originally a Scottish word that meant a literal magic spell. (16:41): You cast a glamour on someone and they saw things that were not there and particularly it transformed things that were bad into looking good. And so when the word came into English, first through writers like Sir Walter Scott, it was used in that way and it gradually transformed. But it always preserved that sense of magic and illusion and fantasy, if you will. And so my analysis of glamour starts with the idea that it arouses a sense of projection and longing, which is based on your unarticulated longings, the things you don’t necessarily express to yourself, but then when you perceive a glamourous idea, it crystallizes it. But then I also analyze elements that all of these many different forms of glamour have in common. One is a promise of escape and transformation. Another is an illusion. Glamour hides flaws, it hides difficulties, it hides boring things. And the third is mystery and mystery encourages projection and it also helps to hide flaws. (18:11): So whether you’re talking about old movie glamour or you’re talking about the glamour of aviation… aviators were one of in the early twentieth century w…

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The Lies People Tell May 04, 2026

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The originalist majority on the Supreme Court is perhaps more open than ever to overturning what it considers to be bad precedents. In his new book, Carson Holloway argues that the justices should train their crosshairs on New York Times v. Sullivan, the 1964 decision that means statements about public officials are rarely considered libelous. He joins James Patterson to discuss the book, the history of free speech, and the future of originalism. Related Links “Malice Toward All, Defamation for None?” by Carson Holloway, Law & LibertyNo Liberty to Libel by Carson Hollway“The Case Against New York Times v. Sullivan” by Carson Holloway, Law & LibertyThe Political Writings of Alexander Hamilton: Volume 1, eds. Carson Holloway and Bradford P. WilsonThe Political Writings of Alexander Hamilton: Volume 2, eds. Carson Holloway and Bradford P. Wilson“Sullivan and the Right to Reputation” by Carson Holloway, Law & Liberty Transcript James Patterson (00:06): Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund. (00:39) Hello and welcome to the Law & Liberty Podcast. I am James Patterson, contributing editor to Law & Liberty and associate professor at the Institute of American Civics here at the University of Tennessee. With me today is Carson Holloway. Dr. Holloway is a professor of political science at the University of Nebraska, Omaha, where he has taught since 2002. Dr. Holloway is also a fellow in the Claremont Institute Center for the American Way of Life. Dr. Holloway has published and edited many books, including with Bradford P. Wilson, the two-volume collection of Political Writings of Alexander Hamilton. (01:24): That’s from Cambridge University Press. But today, we will be talking about his most recent book, No Liberty to Libel: The Constitutional Case Against New York Times v. Sullivan from Encounter Press. Dr. Holloway, welcome to the Law & Liberty Podcast. Carson Holloway (01:39): Thanks, James, for having me. It’s a great honor and privilege and pleasure to be on with you. James Patterson (01:43): Excellent. Well, I appreciate that. And this is a fun book, a book I never expected to read, really. The reason I say that is because what is the relevance of this book? People may not know about New York Times v. Sullivan. So what inspired you to write about this case and its effects? Carson Holloway (02:04): Well, yeah, it’s a great question. I can talk a little bit about how I got into it. I’m a proponent of originalism in constitutional jurisprudence. And so I’ve been thinking in recent years about the way the originalist majority on the Supreme Court has corrected what I regarded as some errors. And it got me thinking about other modern Supreme Court cases that I thought were erroneously decided in the first place that I wanted to write about and think about. Of course, there’s a difference between being a professor who’s a proponent of originalism versus being a judge or a justice on the Supreme Court because they have to move somewhat more pragmatically. And it’s not obvious to them anyway that they’ll undo every precedent that couldn’t be justified on originalist grounds. But I wanted to make my argument for more of a cleanup operation than has happened so far. (02:59): And so one of the cases I was aware of from my own teaching of, say, civil liberties courses was the Sullivan opinion from 1964. And having studied it somewhat, I didn’t think that it really passed muster in terms of the original meaning of the First Amendment. So I wrote a paper on this topic that was published by the Claremont Institute a few years ago in their “Provocations” series. And the more I thought about it and the more I studied some of the recent opinions, such as the Dobbs opinion in which the Court overturned a longstanding precedent on the basis of a renewed respect for the original and historical meaning of the Constitution, the more I thought about it, the more I thought it’d be possible to write a book length treatment of the question. So that’s how I got into it. You also asked me to talk a little bit about just what the opinion is and why it’s relevant now. (03:51): So should I go ahead and do that? James Patterson (03:52): Yeah. I mean, it’s a book not just against New York Times v. Sullivan, but also the standard of actual malice. I don’t think people necessarily know what a big break that is. So talk about the case. Carson Holloway (04:03): New York Times v. Sullivan was decided in 1964 as a result of a case, a libel case involving a public official in Alabama, L. B. Sullivan, and the court used it to revise the nation’s libel standards and to revise really the First Amendment standards of the country, I should say, the freedom of the press standards under the First Amendment. So the traditional approach to libel from basically the Founding up until this decision was issued, and I can talk about it in more detail later if we get into the older history, but the older standard was more along the lines of libel, which is defamatory publication, publication that injures a person’s reputation is just not protected by the First Amendment. It was thought to be outside the scope of the freedom of the press. Kind of a famous statement of that briefly is in the celebrated “fighting words” case, Chaplinski v. New Hampshire, in the early 1940s, where the justices said, “Well, there’s certain categories of thought or certain categories of expression rather that have traditionally been thought not to raise any constitutional problems when they’re regulated.” And these include fighting words or words that provoke a breach of the peace, obscenity, and libel. (05:19): So briefly, the older approach was that libel is just not protected by the freedom of the press. And so a libel case does not raise any First Amendment problems. And the court departed from that pretty seriously in the Sullivan opinion. First of all, by holding that they think a libel case does raise a First Amendment problem. So now they’re bringing defamatory false speech within the ambit of the First Amendment’s protection. And then they solve that problem by coming up with this actual malice standard, which you mentioned, James, which says that if you’re a public official, then later they apply this to public figures as well. If you’re a public official or a public figure, in order to prevail in a libel case, you’ll have to demonstrate not only that the publication was false and defamatory, which would’ve been enough under the old standards, and which is still enough under the modern standards if you’re not a public official or a public figure, just a regular person. (06:22): But if you fall into those categories, you’ll have to prove in addition that it was published with actual malice, which means, according to the court, either knowledge that it was false or with reckless disregard for its truth or falsity. It’s a very difficult standard to meet. And so that’s been the standard for the last couple of generations. This is, as I said before, now a longstanding precedent. But another reason that I wrote the book is because it has become a bit of a matter of public controversy. Some famous people have started calling the actual malice standard into question, both politicians and also jurists. So the politicians are President Trump who, to my knowledge, has not spoken explicitly about the Sullivan standard, but he said many times things like, “We need to open up our libel laws. The standards aren’t good enough.” So he’s gesturing at it there. (07:17): And then also Governor DeSantis of Florida has said some things that are more explicitly critical of the Sullivan opinion by name and the actual malice standard by name. And then on the side of jurists, two well-known people, justices of the Supreme Court, first, Justice Thomas, Clarence Thomas, who is well known as kind of a strict originalist in some of his concurring opinions in recent years, has called into question the legitimacy of the Sullivan standard and the original ruling, and then also Justice Gorsuch more recently, who’s written some things that were sympathetic to that, but also kind of pragmatically critical of the standard based upon newer developments. So I think part of the reason the book is timely is because even as recently as 10 years ago, I believe that from the standpoint of the general public discourse, most people would not even think about a challenge to New York Times v. Sullivan. (08:16): It would’ve been considered a landmark First Amendment ruling that’s settled, and no one really questions it. But in more recent years, it has become more controversial. It has its defenders, too, of course, but I really thought it was time to explore the originalist critique of it at length, and that’s what I tried to do in the book. James Patterson (08:35): Yeah. And as someone who’s taught a media and politics course for many years, this is one of the things that comes up. It’s just when I teach the course, never in my wildest dreams did I imagine someone would write an originalist critique of … It just seems so like it’s almost part of a kind of mythology of the American twentieth century. It’s emblematic of America opening itself up to greater civil liberties. Carson Holloway (09:00): That’s right. And certainly from my conversations with people with whom I’ve been on panels, the journalists and the free speech lawyers and First Amendment lawyers, they all really venerate this opinion. For them, it’s the fountainhead of modern First Amendment doctrine in the realm of freedom of speech and of the press, and it’s almost sacrosanct. And certainly if you’re a journalist, it makes your position safer and easier in some respects, but it’s not consistent with the older tradition, which I try to demonstrate through several chapters in the book. It is an innovation. I find that even the people who defend it will admit that it’s an innovation, that it does depart from the older standards. They think it’s a good thing and they think it’s part of the court’s job to update these standards according to more modern expectations of freedom of speech and of the press. (09:53): But the Founders also believed in freedom of speech and of the press and thought it was essential to self-government and to a free society, but they believed in certain limits, and libel was outside those limits. James Patterson (10:04): So let’s start with this work you’ve done, really just going as far back as English jurisprudence in common law. You talk about libel through figures like Blackstone, English jurisprudence really continues up until Sullivan. Carson Holloway (10:23): Yeah. And it’s very important to talk about these sources, both I think because they really did inform the way the Founders thought about freedom of speech and of the press or freedom of the press. We’re talking about libel. It’s publication. I should just leave it at freedom of the press. James Patterson (10:39): Not expression. Carson Holloway (10:40): Yeah. Not only the way the founders thought about it, but the way the modern Supreme Court has talked about it, because certainly if you consider the text of the First Amendment, it is not dispositive on this question. It doesn’t really tell you anything about libel, and it doesn’t tell you under what standards libel cases should be contested. So you really have to think about what is the background to the language of the First Amendment, what was informing it. And the modern court has said, and it’s almost, I think fair to say, common sense to conclude that it was informed by the common law background to the American Founding. The Founders did not just invent all of these rights that are protected in the Constitution; they had an experience of English liberty that shaped their thinking, and that thinking is summarized in Blackstone’s Commentaries on the Laws of England. (11:33): And I find that he was very influential with many of the early American jurists who I discuss, and maybe we’ll talk about them as well. They have a pretty close to a Blackstonian understanding of this question. So what does Blackstone say in the Commentaries on the Laws of England? He first of all affirms that freedom of the press is essential to a free society. So that’s always worth keeping in view because related to what we were saying a few minutes ago, modern people who find you criticizing New York Times v. Sullivan think that you are rejecting freedom of the press. We are not. It is an essential principle. The question is, what is the scope of it, and what are the proper limits? Because everybody admits that there are some limits. So I mean, Blackstone defends freedom of the press, says it’s necessary to a free state, but he also says that it’s primarily to be understood as a freedom from prior restraints. (12:27): You can’t be stopped from publishing what you want to if you’re a free person, but that’s not to say, he says, that you can’t be held accountable legally for publishing something that is mischievous or illegal in its tendency, including libels or publications that damage reputation. And so he famously says, where libels are punished under English law, there is no infringement upon liberty of the press. And he’s also essential, I think, and at least I lay a lot of reliance on him for this elementary moral, political, philosophical distinction between liberty and license or liberty and licentiousness. The liberty of the press is the freedom to publish what you wish within certain decent limits. And going beyond those limits is no longer liberty. It’s a form of license or licentiousness that is just not protected. And so that’s how he viewed libel. It’s outside the scope. It’s beyond the pale, so to speak. And so as he says, there is no infringement on liberty of the press where a libel is punished under law. James Patterson (13:35): We see this with a lot of treatments of liberty, that there’s the use and the abuse, and that there would be no constitutional protection of an abuse, given that there is no right to protect. An abuse would be something that is without right. But the thing that I find, and this is a question, I don’t mean to lead you too much. The problem that the abuse with the press comes to is the right to reputation. And does this concept of a right to reputation have any cachet any longer? Is this something people even think about? Carson Holloway (14:07): That’s a very good point. I’m glad you mentioned that, and I’m glad you’re leading me on that. Very important to talk about. And it comes later in my argument in the book, I come back to that at the end, but I do think that that is an important distortion in our thinking. And what I mean by that is our failure to consider seriously enough that reputation should be thought about as a right. I mean, some of the modern opinions do go there, but for the most part, I think it’s pretty common to speak about reputational interests in the legal materials we have. And that already sets up a kind of weighting of the scales that’s not favorable to reputation because many people start to think along these lines that, well, there’s a right to freedom of the press, but then there’s reputational interests. You don’t have to be an expert moral philosopher to kind of be drawn along by the vibe that rights are more important than interests. (15:04): They’re more morally weighted than interests. And so it is important to recover the original understanding that reputation is a right and even a natural right. Now that’s in Blackstone, too. Of course, one could think hypothetically they’d be wrong that this is just a social construct or a legal constr…

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