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The Kennedy Moment Apr 27, 2023

Stephen F. Knott joins host James Patterson to discuss his recent book, Coming to Terms with John F. Kennedy.

Brian Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening.

James Patterson:

Hello. You are listening to Liberty Law Talk, the podcast for Law & Liberty. Today is April 10th, 2023, and my name is James M. Patterson. I’m a contributing editor to Law & Liberty, as well as associate professor and chair of the politics department at Ave Maria University, a fellow at the Center for Religion, Culture and Democracy, and at the Institute for Human Ecology, and president of the Ciceronian Society. My guest today is Dr. Stephen F. Knott. Until his recent retirement, Dr. Knott was a professor of National Security Affairs at the United States Naval War College in Newport, Rhode Island. Prior to that, Dr. Knott was co-chair of the presidential oral history program at the Miller Center of Public Affairs at the University of Virginia, where I met him and worked for him for a little while. His essays have appeared in The Wall Street Journal, The Washington Post, The Christian Science Monitor, The New York Post, Time, Politico, The Hill, oh my goodness, Foreign Policy, The National Interest, I’m exhausted. He is author and editor of ten books dealing with the American presidency, the early republic, and American foreign policy. His most recent book, Coming to Terms with John F. Kennedy, was published by the University Press of Kansas in October 2022, and it will be the subject of today’s interview. Dr. Knott, welcome to Liberty Law Talk.

Stephen Knott:

Well, thank you, James. It’s always great to reconnect with you, and I’m looking forward to our discussion.

James Patterson:

Listeners don’t know this, but I promised to interview Dr. Knott maybe a little while ago. And so if he throws any barbs my way, understand that they’re all very earned on my part. So for those who haven’t read the book yet, one of the things that might surprise the reader is that Coming to Terms with John F. Kennedy has a very strong personal component to it in a way that other scholarly works of yours have avoided. So what is it about Kennedy that makes the subject so personal?

Stephen Knott:

So, James, I grew up in a Kennedy-worshiping family in Massachusetts. And I use that term worshiping with some precision. As far as my mother was concerned, she was of Irish Catholic descent. When John F. Kennedy broke that glass ceiling that had kept Catholic or any non-Protestant out of the White House, from that point on, he could do no wrong. So my earliest memory, believe it or not, is of the Cuban Missile Crisis. So in addition to growing up in a kind of worshipful Kennedy environment, my earliest memories, two of my earliest memories, one is the missile crisis and seeing the fear on my parent’s faces as they listened to President Kennedy in October 1962 talk about the Soviet placement of missiles in Cuba. And then shortly after that, my father came home with plans for a bomb shelter in our backyard. That’s my first memory. My second earliest memory is of the assassination, and my mother sitting in front of this grainy black and white television watching the news from Dallas that President Kennedy had been murdered. So both in terms of my memories and also just in terms of the environment that I grew up in was a rock-solid, New Deal, new frontier family. And my editor suggested, along with some friends that, that personal angle might set this Kennedy book apart from the other 40,000 titles that have been written about President Kennedy.

James Patterson:

Right. It’s a very moving sort of introduction about the context in which you grew up. And I know a lot of … I’m at a Catholic university, and I know a lot of people of a certain age that had that very similar experience. Another thing that I had wondered that made this book a little bit more personal was your previous book to this one, The Lost Soul of the American Presidency, 2019, University of Kansas, or the University Press of Kansas, I always get that wrong. So you had a pretty strongly critical tone of the modern presidency. And so maybe developments in recent history had made you reconsider the legacy of Kennedy after growing up maybe a little bit more critical of him as you describe at the early part of the book.

Stephen Knott:

That’s absolutely right, James. My previous book was critical, is critical of a number of the modern presidents, including President Kennedy, to some extent. And I actually wondered at times if perhaps I was a bit too critical. And I started thinking that way, particularly in light of the Trump presidency, which I viewed as quite destructive. And looking back at least at Kennedy’s rhetoric, one can see a president I think who generally appealed to what Lincoln called the better angels of our nature, who viewed the United States as the last best hope, and belatedly, but nonetheless somewhat firmly tried to move his fellow white citizens in the direction of fulfilling the promises of the Declaration of Independence. So I still remain somewhat critical of Kennedy in terms of his embrace of this progressive notion of a kind of boundless presidency, where the president can be as big a man as he wants to be. I find that’s still very problematic, but I also think that some of Kennedy’s rhetoric did appeal to the best in us. And I thought it was time, after 60-plus years on this planet, for me to revisit my earlier beliefs about President Kennedy, and perhaps come away with a more nuanced understanding of this president and this man.

James Patterson:

As a subject, Kennedy really is a fascinating moment in American politics. It’s at a critical turning point in the Democratic Party. Its coalition is shifting. And Kennedy himself is an Irish Catholic, we talked about that, at a moment when American Catholic culture was really beginning to experience its most popular moment of Notre Dame football, Fulton Sheen, Dorothy Day. So what is it about this moment that Kennedy is capturing that is part of what makes him so successful in winning the nomination and then just barely successful enough to defeat Richard Nixon?

Stephen Knott:

Yeah. I think Kennedy is very much sort of a personification of mid-20th century Catholicism for better or for worse. Again, Kennedy breaks that glass ceiling and makes a very firm commitment to the American people and to his fellow Catholics that he is going to take his guidance from the American Constitution and not from Rome. Now I know there are some folks who believe that Kennedy set far too high a wall of separation between church and state. And to this day, he remains a controversial figure in the minds of a lot of conservative Catholics. But I do see him as a kind of Catholic Irish immigrant success story that a lot of fellow Catholic immigrants really glommed onto, so to speak. And again, in the minds of so many of these folks, he could do no wrong after that point. One of the reasons, James, that I wrote this book is I do see a kind of cultish aspect to the support for John F. Kennedy, and that I find somewhat disturbing in a republic, whether it’s a cultish support for Donald Trump, or Barack Obama, or John F. Kennedy, there’s something troubling about that. But I did witness it up close and personal, and again, particularly for somebody like my mother who had to fight for the establishment of a Catholic Church in a very small New England town dominated by white Anglo-Saxon Protestants. She fought that fight in the late 1940s, and then 10 or 15 years later, there’s a fellow Irish Catholic sitting in the White House. It’s just important for your listeners to understand just how important that was to people of my parent’s generation who were Catholic.

James Patterson:

My mother was at a Catholic school, and I want to say this was when she was in Washington, although it was when she may have been in Hawaii. She was the daughter of a man in the Army, he was a sergeant, and was the only Nixon supporter in her entire Catholic school and received very, very bad marks when writing an essay in favor of Richard Nixon. But the family, my mom’s side of the family is very old Republican, so this of course unpopular at her Catholic school. So let’s get into the meat of the book, which is about the presidency. It’s not a long presidency for very tragic reasons well-known to our audience. But one of the subjects you open with is on the civil rights movement. And I was very excited to read this section because I wanted to know what you had to say, especially because I have read a considerably long book on the same subject by Steven Levingston called Kennedy and King. And I think your reading of Kennedy is much friendlier and sympathetic, given that Kennedy was facing a number of trials at the same time.

Stephen Knott:

That’s absolutely true, James. I do think there’s been a tendency on the part of both the book that you just referred to and many other scholars to be highly critical of Kennedy for what, as one author refers to him as a bystander when it comes to the civil rights movement of the 1960s. There’s definitely an element of truth in that accusation. Kennedy was very cautious at first in terms of his actions as president dealing with civil rights. But I think sometimes folks forget, first of all, just what a narrow victory Kennedy had over Richard Nixon in 1960. And that victory was based in part on carrying some key Southern states, the state of Georgia, for instance, gave Kennedy his second-highest popular vote, just behind Rhode Island. And this is a man who just squeaks into the White House. There’s kind of a cloud surrounding that election, to begin with. And then he’s confronted with powerful barons in Congress from these Southern states, who are rock-solid Democrats, but also rock-solid segregationists. So he does tread very carefully, there’s no question about it. He promised in the 1960 campaign that with the stroke of a pen, he could end discrimination and federally funded housing, and he waits until well over a year and a half to finally do that. But I do think, James, by his third year in office, or by 1963, excuse me, he puts the full weight of his White House behind what will become the Civil Rights Act of 1964. And I would strongly recommend to your listeners that they go onto YouTube and just watch Kennedy’s speech from June of ’63, which was an address to the American public, where he puts civil rights as his top domestic priority, and he cites the Declaration of Independence. He cites the American Constitution. He cites our Judeo-Christian heritage in favor of a vigorous federal effort to finally break down the walls of segregation. And he’ll spend the last four or five months of his presidency lobbying for that civil rights bill. And there’s a reason why he’s in Dallas, Texas, in November of 1963. He’s in trouble in the South. He has alienated a significant portion of the Democratic Party’s base by identifying himself with Dr. King, with the Southern Christian Leadership Conference. And I think he deserves credit for belatedly, absolutely true, but belatedly putting the full pressure, if you will, of the White House behind a significant piece of civil rights legislation.

James Patterson:

Yeah, that’s right. He does embrace this language of Judeo-Christianity in precisely the way that Dr. King had, and that element to his speech is picked up and continued through the passage of the ’64 act, in fact. So I was very taken by the treatment you gave of the speech he gives. It was a really good balance, really a correction to a lot of the anti-Kennedy stuff out there, which I have to admit I probably in my own work have been too readily accepting because of my own biases against Kennedy, obviously that I’ve inherited. Another subject that comes up in the book and really gets a finesse treatment given your foreign policy background is a little issue that came up during the Kennedy administration called the Cuban Missile Crisis. What exactly was going on with the Kennedy White House? And why was it that they decided to deal with Cuba, the missile crisis, as well as attempting to stage a coup the way that they did?

Stephen Knott:

Well, James, Kennedy had campaigned in 1960. He took a very hard line on Communism. He’s one of the few mid to late-20th-century Democrats who actually outflanks his Republican opponent on national security. In other words, he comes off as more hawkish than Richard Nixon. And he accuses the Eisenhower Nixon administration of having lost Cuba just as Nixon and some of the Republicans had accused Harry Truman of losing China. So Kennedy beats up his Republican opponents on this issue of Castro coming to power in 1959 during the Eisenhower years. And he suggests that he’s not going to tolerate that. And, of course, you end up with the fiasco at the Bay of Pigs in April of 1961. Now he had inherited a plan from the Eisenhower administration to try to topple the Castro government. We could talk for hours about the differences or the changes that Kennedy made to Eisenhower’s plan. But the bottom line, that thing was just a total disaster. He took full responsibility for it, but he also continued to try to topple that government. And you end up with something called Operation Mongoose, which was a campaign of economic sabotage, but also a campaign involving trying to assassinate Fidel Castro. So this is the lead-up to the Cuban Missile Crisis of October 1962. That administration–the Kennedy Administration–had been trying to kill Castro for quite a few months prior to that. And, of course, the Soviets and the Cubans were well aware of this. When Khrushchev decides to gamble and put these offensive nuclear weapons in Cuba, I think he thought, Khrushchev thought, that Kennedy was somewhat weak, somewhat vacillating. He had canceled any air strikes for the Bay of Pigs operation. He had stood by while the Berlin Wall went up. And there may have been a calculation on Khrushchev’s part that Kennedy would not respond in a firm manner regarding the missiles in Cuba. Now Kennedy does respond in a firm manner in terms of authorizing a blockade, or a quarantine, I should say, of Cuba. But what we didn’t know at the time was that Kennedy also made some pretty significant concessions to Khrushchev in order to get the Russians to pull those missiles out. And so we secretly agreed to remove the missiles that we have on the Soviet border in Turkey, and also, we agreed to not invade Cuba again like we did in the Bay of Pigs. Those things were kept very quiet, very hush, hush. And one of the interesting things that comes out of the missile crisis, and the reason I can say this with certainty, is we have tape recordings of everything that was said in almost every meeting about the missile crisis. And John F. Kennedy was consistently the most dovish, for lack of a better word, the most determined to avoid a military conflict with the Soviet Union, while demanding the removal of these missiles at the same time. So I give Kennedy considerable credit for a very effective management of that crisis, which was the worst of the Cold War that could’ve easily degenerated into a nuclear conflict between the two superpowers. I do think it’s due to Kennedy’s willingness to put himself in Khrushchev’s shoes, to make some concessions, to demand the removal of the Soviet missiles, but also to allow Khrushchev to save face. And I think we averted World War III by Kennedy so doing.

James Patterson:

Yeah. One of my favorite parts of the discussion on the issue of Cuba was that we focus a lot on the relationship that Kennedy had with Khrushchev. Normally, his presentation is one getting kind of yelled at by Khrushchev hammering his fists and/or footwear on various objects at the United Nations. But really, the part that I was most interested in was how slowly but surely, there’s this sort of emergence of a three-way relationship between Kennedy and Khrushchev and Castro. And Khrushchev’s relationship with Castro eventually helps with the thawing of the relationship with Kennedy because of what Khrushchev’s got with this guy and Cuba, and what he’s demanding Khrushchev do with the missiles. So if you could tell any bit of that story just to tease it up for your future book buyers, I would be very grateful because it’s one of my favorite parts of the book.

Stephen Knott:

Well, thanks, James. I have to say it, I’m glad you sort of highlighted this. I do think there’s a tendency to put almost all of the blame on JFK for the missile crisis. The fact was this was an incredibly reckless gamble on Khrushchev’s part. But more importantly, what emerges from a close examination of the missile crisis is just how zealous, how I would say, dangerous Fidel Castro was. He was furious at Khrushchev and at the Kremlin for the decision to pull those missiles out. Castro wanted this thing to go to the mat. He was itching for a conflict. And some of the statements that Castro made, both publicly and privately, to folks in the Russian hierarchy, really bone-chilling. I mean, look, saying things to the effect, if they want to take us down, we’re going to take them down with us. He didn’t particularly care if the whole world got embroiled in this conflict. So there’s a recklessness about Castro that I think a lot of Western observers to this day still ignore. If you don’t believe me, you can look at the accounts written by Khrushchev’s son, Sergei Khrushchev, in which he talks about some of these really dangerous, irresponsible statements made by Castro at the height of the missile crisis, to the point where it really turned Khrushchev and the Politburo off. They became very concerned about Castro’s stability. And I think that’s a part of the Cuban Missile Crisis that just doesn’t get enough attention.

James Patterson:

In my version of the text, it’s this great part of the book, and pleading for a first strike in the event of an American invasion, Castro told Khrushchev that this was an opportunity to eliminate the chance for the Americans to strike first against the Soviet Union, quote, “An American invasion would be the moment to eliminate such danger,” Castro told the Kremlin, this quote, “Harsh and terrible solution was the only solution, for there is no other.” In Moscow, Khrushchev, the man who once promised to bury the capitalist West, and who had flaunted the possibility of nuclear war during the summit with Kennedy in Vienna of 1961, was astounded by Castro’s proposed final solution, quote, “This is insane. Fidel wants to drag us into the grave with him.”

Stephen Knott:

Absolutely true. And again, not to beat a dead horse, but I’ve often felt that Fidel Castro to this day gets something of a pass from a lot of Western observers who sort of admire the fact that he stood up to the big bully to the north. But there’s an element of Castro’s zealotry to the cause and to his hatred of the United States that is particularly … It’s disturbing in an era of nuclear weapons. And I think he had a kind of cavalier attitude about those weapons that neither Kennedy nor Khrushchev had, thank God.

James Patterson:

It’s sort of like, “Well, if they start a nuclear war with each other, maybe they’ll forget all about me down here.” So this is something of a silly question, but it came to mind when I was reading that quotation. But is it true that Kennedy before imposing the embargo, picked up a bunch of Cuban cigars to keep for himself at the White House?

Stephen Knott:

I believe that is true, James, if my memory serves correctly. I don’t know if I talk about this in the book or not. But I know I’ve come across references to, I believe, somebody in Pierre Salinger’s staff. Salinger was Kennedy’s press secretary, was somehow able to get ahold of these Cubans. Kennedy did like a good cigar, and I think that story is absolutely true.

James Patterson:

Well, I do like a good cigar as well, but I would never violate the embargo. That would be wrong. So Kennedy had an experience of war, and you mentioned earlier that he was dovish on nuclear war. To what extent did his experience serving in the Pacific theater influence his position on conflicts with the Soviet Union or other powers, especially given that this is a period when we’re starting to see the emergence of the problems in Vietnam?

Stephen Knott:

Wow, terrific question, James. I mean, Kennedy’s hatred of war, I think is, an aspect of his persona that is another one of these somewhat unexamined or underappreciated areas. His letters home while he served in the South Pacific during the second world war are filled with anti-war references. Now look, he wanted to defeat the Japanese. I mean, he was a patriot. He wanted the United States to succeed in that war. But he really developed a firm hatred of war. Two of his crew members were killed during that PT-109 incident of August 1943, where Kennedy was the skipper of a PT boat. Two of these young men were killed. One of those young men had talked to Kennedy about having had a dream in which he was killed in the war. And Kennedy notes that this young sailor was sort of obsessed with the idea that he was not going to make it home. Sure enough, he did not make it home. And Kennedy writes in one of his letters his regret that his efforts to get this guy transferred off his boat did not succeed. Now look, there may be a lot of aspects of John F. Kennedy’s character that none of us can find particularly admirable, but in this case, it does strike me that Kennedy had a principled, a deep and abiding objection to war, he had seen it up close and personal. And when he’s president a mere 20 years later, by the way, these are not particularly distant memories. PT-109 was in 1943. He’s in the White House less than 20 years later. And his hatred of war leads him both in the Berlin crisis in the fall of ’61, I would even say at the Bay of Pigs in April of ’61, the missile crisis in ’62. And I would also apply this to Vietnam. I just don’t think John F. Kennedy would’ve gone to the lengths that Lyndon Johnson did in terms of committing over half a million American soldiers to Vietnam. This was a man who hated war, who had seen it up close and personal, who had lost his oldest brother in the war less than a year after the PT-109 incident. So again, this is an aspect of Kennedy’s beliefs that I don’t think is appreciated. And yes, you’re absolutely right, James, it does guide his foreign policy and his national security decisions. And by the way, I would just add to this, there’s a reason why some of the hawks in the defense department at that time, I’m thinking particularly of General Curtis Lemay, who was the Chief of Staff of the Air Force, thought that Kennedy was soft, thought that Kennedy was an appeaser like his father, as a lot of folks liked to say. And you know what, they were onto something. Kennedy hated war, and that guided his decision-making process in the national security arena.

James Patterson:

Reading here in the chapter on Vietnam, Kennedy added that the United States was prepared to consist them, but I don’t think that the war can be won unless the people support the effort. And in my opinion, the last two months, the government has gotten out of touch with the people. Here are the people, I think you mean the Vietnamese people. Kennedy hoped that it would become increasingly obvious to the government that they will take steps to try to bring back popular support for this very essential struggle. He was cautiously optimistic that the South Vietnamese would regain the support of the people with changes in policy and personnel. Absent those changes, the chances of winning would not be very good. Do you think that with the way Kennedy was approaching Vietnam, had he lived, we would’ve had a different experience there?

Stephen Knott:

I do think so, James. And let me start off by saying I’ve gone 180 degrees on this. I used to be firmly in the camp that John F. Kennedy would’ve followed the same course of action or a similar course of action as Lyndon Johnson. I mean, it was Kennedy’s best and the brightest, McNamara, Rostow, Bundy, Rusk, et cetera, who guided Lyndon Johnson into that war. But, after writing this book, after listening to White House tape recordings, and after combing through countless documents, it’s very clear to me that Kennedy was a skeptic about America’s role in Vietnam. Now he broadened it, no question. The number of advisors that went from Eisenhower to Kennedy was pretty striking, I think 700 or 800 perhaps when Eisenhower leaves office, to 17,000 by November of ’63. So that piece of evidence will tend to suggest that Kennedy would’ve escalated. But I think it ignores the fact that throughout the major meetings on the course of the war in Vietnam, Kennedy is one of the most skeptical voices in the room who was constantly pushing back against those folks who were arguing for a greater American role. And let me add this: Kennedy spent a considerable amount of time in so-called French Indochina in the early ’50s as a member of the House Foreign Affairs Committee. And it had quite an impact on him. One of the things I admire about John F. Kennedy, whether as a president or a member of Congress, is he had a tendency to go outside of official channels to gather information. And when he’s in French Indochina, he’s meeting with mid-level officials who aren’t giving him the sort of State Department official diplomatic line. And they are expressing to him their concern that we are moving towards sort of picking up the slack of this French Colonial regime, and that would be a disaster. So he remembered those conversations from 10 years prior when he was a junior member of the House, and again, throughout his presidency, you see repeated skepticism about these optimistic assessments that are coming out of Vietnam. So I’m part of that school of thought that speculates, and I grant you it’s speculation, that had he been reelected in ’64, he somehow would’ve tried to pull off a negotiated settlement in Vietnam, similar to what he and Khrushchev had done in nearby Laos.

James Patterson:

Kennedy’s presidency really is a dramatic test of America’s replacing basically the British Empire as a kind of preserver of trade access on the open seas, and ensuring, at least in most cases, some level of peace among nations. And so you can see how Vietnam, especially with its connections to Communism, would be such a difficult knot to untie. This sort of aspect to governing with Kennedy is very tough to parse out. So I wanted to move to something that’s actually at the beginning of the book. Maybe I should’ve started here, which is that Kennedy’s got this very famous advertiser, at least among political scientists, it’s famous, in which the song is (singing). Do you know what I’m talking about?

Stephen Knott:

I know what you’re talking about.

James Patterson:

Listeners who don’t know, I won’t torture you with my atonal singing. It’s on YouTube. You can listen to it. It’s one of the most vacuous modern advertising ads there is.

Stephen Knott:

No question about it, James. Look, part of the reason why Kennedy manages to win the White House in 1960, even though at the beginning of 1960, he’s still somewhat of an unknown entity, he was not the favorite of party leaders in January 1960. They were looking at Lyndon Johnson. They were looking at perennial candidate Adlai Stevenson. They were looking at Senator Hubert Humphrey or Senator Stuart Symington. Kennedy and his father, who of course had experience in Hollywood, understood the power of public relations, and they took advantage of this new medium of television, which was really catching on by 1960. And you end up with some vacuous things like that ad that you just cited. And of course, you also end up, and this has to be acknowledged, Kennedy and those famous four debates with Vice President Nixon, he just looked good. He came off well on television. Nixon looked kind of pale and sweaty and shifty-eyed. Kennedy had worked on his tan for the previous days leading up to the first debate. Kennedy wore the correct color suit. He knew the importance of imagery. And I understand that as a criticism of JFK. However, where I differ, I think some folks take that a little too far. He was not just good looks, good hair, I’m jealous of the hair, good teeth. There was substance to the man. He had an interest in history. He particularly enjoyed historical biography. He had a very inquisitive mind. He had an ability to think, as we say today, outside of the box. And so where I differ with some of his critics who say that he would be long forgotten were it not for Lee Harvey Oswald, I think that’s patently false, and it’s unfair. This was a man of some substance, in addition to being perfectly suited for this new technology of television.

James Patterson:

Yeah. To that point, there’s a great discussion you have of the experience the Soviets and the Americans have in the testing of a nuclear warhead called Big Ivan, which was terrifying to read. And you conclude when discussing how Kennedy responded to its detonation, such a speech, the speech that he gives in response today would flummox many Americans. And you say this because of the level of detail and attention that Kennedy gives on the subject of nuclear weapons. I wanted to ask you about this because: Do you think that Kennedy was lifting people up and addressing them seriously as the Americans who would be affected by his policies? Or do you think that today people talk down to constituents so that they’re no longer required to think hard about policy decisions?

Stephen Knott:

That’s a really terrific and tough question, James. I mean, I’m inclined to say that Kennedy liked or preferred to talk up. And I’m glad you did cite that passage. And by the way, there are other speeches as well, which I think would probably not work today, simply because they are aimed too high. That is an element of Kennedy that I do admire, he and his speechwriter, Theodore Sorensen. They were wordsmiths of a sort, and they were good writing team. And I do think Kennedy’s rhetoric is some of the more impressive rhetoric in the history of the United States presidency. But yeah, I think today a lot of that speech you mentioned, where in response to the Soviets resuming atmospheric testing, even his missile crisis speech from October ’62. I’m not sure that would work today. We have gone backward I think in terms of the kind of rhetoric that the American people seem to respond to, even reading the transcripts of the Kennedy-Nixon debates. They’re actually fairly highly pitched and they’re quite impressive in that sense. And it’s one of the sad things to see that today in this era of soundbites and social media, the constant back and forth on social media, where people insult one another, part of the reason I wrote that book was to show the American people that there is an alternative, and it’s not that far removed from the present day.

James Patterson:

One of the striking passages towards the end of the book on the subject of Kennedy’s assassination is much of the blame for the proliferation of Kennedy conspiracy theories rests with Lyndon Johnson and his creation of the Warren Commission, which surprised me. Although, I later learned what you meant by that. But Johnson normally gets a lot of credit for using the tragedy of Kennedy’s assassination for pushing through a lot of great domestic agenda reforms, like the Civil Rights Act, but also going to great excess with Vietnam. I had not heard this, although I’m not a great Kennedy scholar, not heard this discussion of Johnson being the person responsible for the conspiracy theory. So why don’t you explain that while I put my tinfoil hat on?

Stephen Knott:

Sure. Let me say right off the bat, James, I’m not a conspiracy … I’m not somebody who’s into these conspiracy theories. I believe that Lee Harvey Oswald killed President Kennedy and most likely acted alone. But what I meant by that statement was that Vice President Johnson, who in some ways as you mentioned, did handle the transition quite skillfully, did put pressure in a sense on what became known as the Warren Commission to point the finger at Lee Harvey Oswald and to remove any speculation that the Soviets, or the Cubans, or both were somehow behind the murder of President Kennedy. Johnson’s concern was that if that was the conclusion, that could spiral out of control, God knows even end up with World War III. Keep in mind, November 22nd is barely a year after, just slightly a year after the Cuban Missile Crisis, so things were still quite tense between the United States and the Soviet Union. And Johnson wants to make sure that this commission comes out, quote, unquote, with the right conclusion. And the right conclusion, according to Johnson was that Lee Harvey Oswald acted alone. Now I happen to believe they got it right. But the fact that there was and we now know there was this pressure to come to that conclusion casts a shadow over the verdict in a sense of the Warren Commission.

James Patterson:

I took it off, so no one can hear the foil crinkling. It was just not good for broadcast. But was Kennedy a conservative?

Stephen Knott:

Yeah, that’s a good question. I have made the case to a number of my liberal friends that I don’t think you see a great society with a two-term presidency of John F. Kennedy. Again, it’s speculation, I could be wrong, but I’d like to think it’s informed speculation. I think Kennedy being the son of a businessman, and also not quite the new dealer that Lyndon Johnson was. Lyndon Johnson saw himself as completing the New Deal. That’s not what John F. Kennedy was about. And again, I don’t see the kind of massive great society proposals coming out of a second Kennedy term. Again, partly due to this little bit of a distance between the Kennedy family and the Roosevelt family due to bad blood going back to the second world war, Joseph P. Kennedy, the president’s father, being Roosevelt’s ambassador to England, and then being recalled in somewhat negative circumstances, to say the least. But also again, just the Kennedy coming out of a very different milieu if you will, and he’s not the new dealer, he’s not the worshiper of FDR that Lyndon Johnson was, and I just don’t see the same sort of gut reaction or the gut sympathy for the kind of massive programs that will come to characterize the great society. Let me add to this, by the way of course, conservatives like to point this out, Kennedy’s proposal for a tax cut in 1962, I believe, which does become law, and would later be cited by President Reagan as an example of kind of supply-side economics. Now Reagan may be a little bit off the mark there, but that’s a gesture that I don’t see … It’s not a gesture. That’s a policy that I don’t see Lyndon Johnson pursuing.

James Patterson:

I think I wanted to end this with these broader questions. I shouldn’t have launched you into such a difficult question without any warning. What did Kennedy do to the presidency? I mean, you’re a great scholar of the American presidency, a student of it for many years. What do you see as Kennedy’s legacy? He was not in office that long, but he died very tragically and at a critical moment.

Stephen Knott:

Yeah. He was only president for two years, 10 months, and two days, so that’s a mere blip in the history of this country. But by the way, this goes back to your previous question. I do see John F. Kennedy along with Ronald Reagan, and this again maybe plays into this notion of Kennedy being somewhat conservative. Both of those presidents I think believe in American exceptionalism, which I know is a controversial doctrine these days. But I think of the entire Cold War presidency, those two presidents, Kennedy and Reagan, made the most compelling case for the superiority of the Western world over the totalitarianism of the Soviet Union. And I see Kennedy’s rhetoric, his inaugural address, his American University speech in June of ’63, his civil rights address in June of ’63, and his speech at the Berlin Wall in June of ’63 as some of the most powerful rhetoric in the history of this country, in the history of this presidency, and again, I see all of those speeches as appealing to the better angels of our nature. And in that sense, I see John F. Kennedy as a very positive force, somebody urging his fellow citizens to give something back to their country, to engage in service before self. That’s very positive. The negative side of the equation, the negative impact on the presidency is he is very much a part of this 20th-century progressive view in the president being as big a man as he wants to be. Going back to Woodrow Wilson and Teddy Roosevelt, and of course, Franklin Roosevelt, this kind of unbounded presidency that sort of promised the world to the American people. And I think what that did is set up both the presidency and the federal government writ large for pretty dramatic fall, if you will. It’s simply impossible to deliver on the promises of the 20th-century activist presidency. And Kennedy is very much a part of that, and I acknowledge that forthrightly in the book, and I see that as the most egregious legacy of his when it comes to the American presidency. It’s simply an unsustainable conception of executive power.

James Patterson:

The myth of Camelot that was the sort of way of dealing with the publicity of the Kennedy family as a kind of happy family, and behind the scenes, of course things were not so happy. And Kennedy also had some pretty serious medical problems. But the myth of Camelot after his assassination really did dominate the way that people interpreted Kennedy, as well as the … You mentioned the wordsmiths like Sorensen, very captivating kind of writing style for an audience that wanted to hear lot of the conclusions they were reaching. Feel like that whole world has really come to an end. And it seems like this is a good opportunity to be writing such a book about Kennedy because you no longer have to tussle with the Kennedy industrial complex sort of raining down their official line on anyone who wants to make serious inquiries. Is this a change that you’ve noticed? Am I off-base with this?

Stephen Knott:

Well, you’re very much on target, James. Part of the reason I had drifted away considerably as a younger man, my admiration for John F. Kennedy really began to wane, I even reached the point where I considered myself a Reagan Democrat, and maybe even adopted that belief that he was sort of just good looks, good hair, good teeth, et cetera, telegenic. That’s gone. But you’re right, Camelot is gone. That was a creation of Jacqueline Kenned. Less than a week after her husband was killed, she told the most prominent journalist in the United States that her time in the White House with the president was similar to sort of the hit play, hit musical of the era of Camelot. It lasted for maybe 20 years. It’s long gone. And I say thank God it’s long gone because one of the things I saw when I worked at the John F. Kennedy Library in Boston was this kind of manipulation of history that was very much a part of the family’s attempt to control the image of John F. Kennedy and the entire family. And as much as I was a Kennedy devotee at that time, I was also a devotee of history. And I really disliked the fact that decades after the fact, you have family members exerting veto power over particular authors gaining access to presidential papers at the John F. Kennedy Library. It was very disturbing to see. But that’s gone. Camelot is gone. The family efforts to control history, to control of shape, manipulate President Kennedy’s reputation is gone. And thank God for that. It took far too long, but I think we finally are at the point where we have a more nuanced understanding of this presidency. And hopefully my book will serve to contribute to that deeper understanding.

James Patterson:

It certainly did for me. And that was one of the things that I came away from the book really feeling, which is why I wanted to ask you that before we came to a close because it felt like a kind of post-Camelot book, both because it was a sympathetic reading by a more conservative scholar and not the kind of reading you would expect. So it was a pretty remarkable conclusion to reach by the end. Just as a final question, does Kennedy have anything to teach us today? Is there something about Kennedy’s example? And here I mean in a positive as well as in a negative. Kennedy kind of gets a lot of criticism because of his personal problems. But of course, we had a president recently and is now running again who deals with the same kind of issues. Is there anything about Kennedy’s experience that should teach us as people voting for presidents what to expect, or how to handle their decision?

Stephen Knott:

Well, I would like to think that the Kennedy example provides all Americans, and what I tried to convey in this book is this journey that I’ve been on. I would like to think that after reading this book, that perhaps American citizens will undertake a similar journey. We are kind of locked into our own ideological cocoons, unwilling to sort of look or read about individuals from the past or the present who may disagree with us. John F. Kennedy I think in many ways was one of the least ideological presidents we’ve ever had. Now that doesn’t mean he didn’t have principles. I think he actually did. But he was not an ideologue. He did not view politics as a blood sport. And I think all of us should stop viewing politics as a blood sport. One of Kennedy’s, they weren’t close friends, but they got along tremendously well, was Barry Goldwater. Kennedy and Goldwater talked about going around the country in 1964 and debating each other without any sort of media panel, just the two of them sort of going on a road trip, talking about the issues of the day. John F. Kennedy did not view the opposition as traitors. He did not view, as I keep saying, politics as a blood sport. And hopefully, if we could get back … Not that this was a golden age, not that this was Camelot, it wasn’t by any stretch. But there is I think some lessons to be learned from a more civil type of politics, where people across the aisle could talk to one another in an intelligent fashion and not personalize it, not turning it into some sort of mud-slinging event. We all have something to learn from that lesson, I believe.

James Patterson:

I’m reeling here at the idea of a Kennedy Goldwater traveling band.

Stephen Knott:

Yeah, they talked about it, James.

James Patterson:

Oh, man, what they took from us. Anyway, thank you so much, Dr. Knott, for coming on here, especially for your patience with me. This was a really enlightening book and I hope everyone listening decides to go pick up a copy and read it for themselves.

Stephen Knott:

Thank you very much, James. I really appreciate the discussion we’ve had today. And I look forward to us getting together again. Maybe we can have a cigar, maybe even a Cuban cigar.

James Patterson:

Well, we don’t want to break any rules. I’ll take you up on that. Bye now.

Stephen Knott:

Bye-bye.

Brian Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or however you get your podcasts.

**Passing the Baton** Apr 13, 2023
Will Inboden joins host Rebecca Burgess to discuss *Hand-Off: The Foreign Policy George W. Bush Passed to Barack Obama*, a collection of documents related to the 2008–2009 presidential transition.

Brian Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal, *Law & Liberty*, and hosted by our staff. Please visit us at lawliberty.org. And thank you for listening.

Rebecca Burgess:

Welcome and hello to Liberty Law Talk. My name is Rebecca Burgess. I’m the contributing editor with Law & Liberty, a visiting fellow with Independent Women’s Forum, and a few other things. And joining me today is Will Inboden, who is the executive director of the Clements Center for National Security, and an assistant professor at the LBJ Policy School, both of which are at the University of Texas at Austin. Welcome, Will, to Liberty Law Talk.

Will Inboden:

Thank you, Rebecca. It’s great to be with you.

Rebecca Burgess:

Well, I am very excited to talk about a book, which I’m not sure is on many people’s radar. Because everyone is so excited about your recent Reagan book, they haven’t realized that you have recently put out another edited volume, very large in fact, which is called *Hand-Off: The Foreign Policy George W. Bush Passed to Barack Obama*. Just came out at the very end of February, and Brookings Institution Press published it. I have to say, I was recently at a conference, I had the tome with me on the table, and several people picked it up and passed it around, and they were so excited. Because this book is really novel. It represents about 30 or so different transition memos that the George W. Bush team wrote to the incoming Obama team in 2007/2008, as the new president was getting his team ready to take up the reins of government. And something like this, as far as I know, has never happened. Would you give us a little bit of the story, the summary of what this book is?

Will Inboden:

Yeah. Thanks, Rebecca. And I do think that, at the risk of immodesty, it is a very unique book. I don’t know of any other book there’s ever been like this particular one. If that sounds too grandiose for listeners, I’m not saying it’s the most wonderful book ever, listeners can judge if it’s good or bad. But just the type of book it is. I’ll emphasize what I mean by that.

First, that has all of these declassified transition memos. And to give our listeners some context, these memos, when they were first written at the end of 2008 and beginning of 2009, most of them were classified top secret, others secret. So high classification levels. And according to standard American government practice, they would not have been declassified for at least 30 years or maybe longer. And so just the fact that we were able to get them declassified after just 15 years, which again, is a while, but not near as long as it normally would’ve been, that is very unusual.

Second thing that we did, which I don’t know if another book that is done, is in addition to taking these declassified memos so that readers can see what did the world look like to outgoing Bush administration and the incoming Obama administration in 2008/09, is we had quite a few of the people who had originally written these memos, now write retrospective essays on them. So these are former Bush National Security Council staff, who now 15 years later, looking back saying, “All right, what do we think we got? What do we think we got wrong?” So it’s a little bit of grading your own report card, right? It’s a self-evaluation. But still, a good chance to take some of our own internal thoughts and reflections and put them down on paper.

Then the third thing is we also commissioned some outside scholars, Mel Leffler of University of Virginia, Martha Kumar, one of the most eminent scholars of presidential transitions, Hal Brands of Johns Hopkins SAIS. And it had them write their own evaluation essays saying what do they scholars think the Bush administration got and got wrong on national security, on the transition, and so forth. And so to have all of those documents between the covers of just one volume, like I said, I don’t know of any other volume there’s been like this. And so there’s any number of angles from which people can look at it and digest it.

Rebecca Burgess:

I love that it doesn’t leave to future scholars. It’s almost living history, it seems like. Maybe not quite, but that it’s a certain transparency about it of showing the inner workings of government. And I should mention, because I didn’t previously, who the other editors are that are involved in this volume, and the fact that you have a very nice forward from President George W. Bush himself and a note from Condoleezza Rice. But Stephen Hadley, who had served four years as assistant to the president for National Security Affairs is kind of the main editor. And then assistant editors are Peter Fever, who under Bush, served as the special advisor for strategic planning and institutional reform on the National Security Council staff. Yourself, who at the time you were senior director for strategic planning on the National Security Council staff, and you also worked in the state department’s policy planning staff, correct?

Will Inboden:

That’s right, yes. Yeah, and the Bush-

Rebecca Burgess:

Wonderful.

Will Inboden:

Yeah.

Rebecca Burgess:

And then Meghan O’Sullivan, who was special assistant to the president and deputy national security advisor for Iraq and Afghanistan. So very well-placed individuals there at the top who were in the middle of all of these things at the time. And I would love to ask in a question, maybe a step back, why does this book happen now? What was the thoughts that you all had that clearly at some point there was conversation, maybe it was over whiskey, maybe it wasn’t. Where you said, “You know what we need to do, is declassify or see if we can declassify some of these transition memos and put it together in a book.” And not just put them together in a book, but also write these postscripts, these kind of evaluations on them. Where does that process come from and what is it trying to do?

Will Inboden:

Yeah. So the process was started, and all credit here, by Steve Hadley himself, who had been the National Security Advisor at the time and had overseen the original drafting of these memos. And also overseen the transition process when Bush is leaving office and the Obama team is coming in, and Hadley advanced that. We’ll want to talk a little bit more about just how important but little understood that process is.

Steve came to me about four or five years ago with the idea for doing this project. And wanting to know if I and Peter and Meghan would be interested in helping him out. One reason Steve originally approached me is I sit on the advisory committee for CIA and another advisory committee for State Department on expediting the declassification of old documents and getting them in the hands of scholars. And so I was already doing this kind of work for the Reagan administration, the Bush 41 administration, the previous administrations, so was able to help Steve with some of the mechanics of getting these documents declassified.

And it’s an interesting thing about American law, even though President Bush, as president at the time had complete authority over the classification of these documents. Once he’s out of office, these documents are the property of the United States government, not President Bush himself. And so he could not, now as ex-president just wave a wand and say they’re all declassified. They had to go through a very rigorous process that current National Security Council officials oversaw, which took about a year and a half to two years.

So that was the original genesis of Steve Hadley wanted to do it. And there were two reasons why he wanted it done. The first is transparency and informing the American people of this is how national security is handled during a presidential transition, including a transition from a Republican to a Democrat, and an outgoing two term one, to an incoming one. Where there were real differences over policy, but at same time, I think I shared sense of duty to serve the country and protect the country.

And the second reason is Steve Hadley wanted to produce a pretty extensive record of what was Bush administration foreign policy. We’re recording this as we’re… this week is the 20th anniversary of the Iraq War. Obviously, one of the most controversial aspects of Bush foreign policy. And there’s a big section in here on Iraq. But as a way of reminding people, reminding scholars, reminding ordinary citizens that there were a lot of other things that went on during the Bush administration. A lot of other policies that we worked on, some things we got right, some things we got wrong. And putting these documents out there so that people can make up their own minds, but a part of the, I think trying to provide as full of accounting as possible of the Bush administration legacy.

Your listeners will know, I’m hardly objective on this. Right? I served this administration for five years, so I don’t want to pretend to scholarly objectivity. I’m very proud of a lot of what we accomplished. And will also tell you, I think we got a number of things wrong as well. But whatever you think of the Bush administration foreign policy over those eight years, everyone will agree that it was consequential. Right? That some very important things happened, some of the good, some of them bad. And so I think to at least understand that, it helps to have these documents and these essays evaluating them.

US President George W. Bush and President-elect Barack Obama depart the North Portico of the White House in Washington, DC, on January 20, 2009, for Obama’s inauguration. (Larry Downing/Reuters/Alamy.com)

Rebecca Burgess:

Absolutely agree. And I think just as a little side note, as you were saying that you’re hardly an objective observer. Sometimes maybe I think we downplay the importance of having people who have been involved actually give their own thoughts and feelings about it. Because at the end of the day, we’re not automatons. Even those who work in government are not automatons, they’re individual human beings who are also using their emotions and their intellect to evaluate. And maybe we can get into this in a little bit, but in writing these memorandum, assessing situations, it’s very much intelligence gathering type of an operation, even though we don’t think about it in those specific terms. And of course, what parameters were you using to make those evaluations are very much based on our personal involvement and with them often.

So I was wondering actually if we can step also back a little bit and talk about transitions, because you were mentioning this, and what goes into a transition between two presidents. That’s one level. The second is between two different parties, Republican and Democrat, as you mentioned. The third with this particular, is there’s war going on. But then also just this basic fact that no president starts with a clean slate. No one gets to come in with an absolutely fresh new virgin landscape of domestic or foreign policy. And foreign policy, it seems to me this is where this really comes into play. The rest of the world is still doing its things. And a new president has to step in.

And how does the country, the United States of America preserve a certain continuity with all those countries when there are different presidents? Is this the role of the agencies? There are so many agencies. I don’t think most Americans could name which agencies are involved in foreign policy, that there’s not just state and the National Security Council, there’s USAID, there’s multiple other of these things. How do you coordinate those activities and how do we start to think about it? And is this where the practice of writing transition memos in a sense starts coming from? Is this what President Bush in 2007 is thinking about? Maybe just walk us through a little bit of some of these things.

Will Inboden:

Yeah, there’s a lot there, and you tee up some really great questions and I have some really good thoughts there. I think the first thing to say is this, is that there is a two and a half month period roughly, for a presidential transition. Right? Between election day, the first Tuesday of November, and then inauguration day, which is almost always January 20th. So it’s about that two-and-a-half-month window. And during that time, you still have one president. Okay, so the outgoing president stays president up until 11:59 AM on inauguration day. However, during that true two-and-a-half month time, the outgoing president is the lame duck, and the incoming president is putting together his, maybe eventually her team has some ideas on the policies they’re going to want to pursue. And so it’s a very complicated and delicate time.

And the bad guys in the world, the threats, the potential terrorist attacks, the great power rivals, Russia and China, the rogue state actors, North Korea and Iran, they do not stop wishing harm on the United States during that transition. They’re not going to pause their activities and their threats. Likewise, at any given time, the United States has hundreds, thousands of sensitive national security endeavors underway around the world. I mean, I’ll just give a bunch of examples. Right? So we have troops deployed around the world. We have troops based in dozens, maybe even close to a hundred countries. During this 2008 time, we had two hot wars going on in Iraq and Afghanistan, those don’t stop during presidential transition. A lot of other smaller-scale operations going on. We have a vast array of sensitive intelligence collection endeavors underway of covert actions that are underway, that again, that the CIA usually is carrying out. You have lots of diplomatic negotiations underway that the state department is leading. Many of them out of the public limelight. You have the development endeavors underway, the different projects that USAID is funding and implementing. I could go on.

Those things don’t stop during a presidential transition. And as the outgoing president is on the way out, he is handing over a responsibility for those to the incoming team. The incoming president will then, as commander-in-chief, as diplomat-in-chief, and so on, have authority to maybe change or revisit a number of those operations. But about 90% of them will continue, even with a new president of a new party. And so it’s a very complicated question, how do you keep some continuity going? Those things all, just as the threats to our country don’t stop, those operations and endeavors are not going to stop either. And the National Security Council, as the president’s main advisory and coordinating body for everything related to national security is the nerve center for keeping those going, and thus ensuring a smooth transition. A peaceful transition of power and the continuity of all of these different operations and endeavors.

And so that is the backdrop for that very important, but sensitive and complex time, those two and a half months. And so what we had done with these memos originally is think all right, in addition to the different operations going on, we, I say we as both an American but also the Bush administration official, we had a responsibility to hand over as much of our institutional knowledge, our memory, our evaluations of policies to the incoming Obama team as we could. Again, it was going to be up to them to decide what they wanted to do with this or not, but we owed it to them to at least give them as much information as possible.

And there wasn’t real partisanship involved in this. I mean, we knew that they had run their campaign in a lot of ways, very critical of Bush administration foreign policy. We thought some of those criticisms were unfair and some of them were fair. We knew ourselves about a number of things that we had had messed up, but also thought we had some good things going that we would encourage them to continue. And so we owed it to them to give them as much of this information as possible, and then they could decide what they will do with it. And part of this came from previous presidential transitions had been a little more messy on the foreign policy. The Carter to Reagan transition, which I treat a little bit in my other book, which you mentioned, was a pretty messy one, that was a pretty acrimonious one. The Clinton to Bush 43 transition, which Steve Hadley had been a part of as incoming one, had been fairly messy. Of course there’d been the disputed Florida recount efforts and things like that.

And so President Bush had decided early on in his second term that when it came time for him to do a transition, not even knowing yet that it was going to be Obama, not even knowing who the next one was going to be, that he owed it to his successor to make this as smooth as possible.

Rebecca Burgess:

Well, I think now all the experts who studied presidential transitions look to the Bush 43 transition to Obama as a kind of textbook handoff. And I’m glad you mentioned the Clinton to Bush because, so I’m in maybe grade school or maybe high school at the point when that happens, and I ended up having to spend a lot of time in doctor’s offices. And I looked at a lot of *Newsweek*s and *Time* magazines. And I remember the political cartoons of the things that the Bush administration stepped into, everything from missing Ws on keyboards and things like that.

And that what’s in my head, and that’s one of the first questions I remember when I saw this book being published was, does that effort, does President Bush is a slight impulsion to do it better because of how messy it was, at least on the outside, when he came into office. And how much of several steps back that can put an administration, if you’re trying to just get up to speed on something, you’re not quite ready to handle certain things. And I do believe, I think at some point, one of the authors of the book mentions this in regards to September 11th that there’s a, I don’t want to say a reason why, but part of the reason is that wasn’t a lot of a good transition of information going on there. And so September 11th happens because things fall in the crack. Anyway, just maybe some of your thoughts on that.

Will Inboden:

I do think certainly a part of President Bush’s commitment to doing a smooth and nonpartisan a transition as possible, did stem from his perception that his own earlier transition eight years earlier, the handover from Clinton to him had not gone so well. And again, it had been a disputed election. And there were some other factors too. I was finishing up graduate school at the time and was making some plans to eventually join the Bush administration, but I was not there firsthand for that 2000/2001 one. I think I read some of the same *Newsweek* articles you did.

I will say, on the 9/11 attacks, and again, this is before I officially joined the administration, there probably is something to the messiness of the transition nine months earlier. That said, as you’ll see in here, Bush administration veterans would also admit that they… we, I guess I should say, had not fully appreciated or taken the terrorist threat as seriously as it needed to be. And then you did have someone like Richard Clark, Dick Clark a who had been on the Clinton NSC staff, then continued on the Bush NSC staff, who had been raising the alarms about this as a more serious threat. And he was frustrated that he wasn’t listened to as much. So there may be something to it, but I wouldn’t want to go too far and blame the Clinton administration for the messy transition on how 9/11 came about. There was also, as we know, poor information sharing between the FBI and CIA, and a whole host of other factors, which we learned very painfully.

Rebecca Burgess:

Once again, the multiple factors and agencies involved doing foreign policy national security complicate things all the time.

Will Inboden:

Yeah.

Rebecca Burgess:

In moderation of course, in assigning blame is always good. And generous and humility are good things. And so maybe a way to get into some of the content of the memos and the thoughts about them, I was thinking it would be helpful to just remind ourselves or situate ourselves in that kind of 2000 moment when Bush becomes president, and think through some of the big national security forum policy things that happened. And I remember, so September 11th happens, it’s my first day as a senior in high school. And then decisions to go to war to Iraq, this happens freshman year of college. My career ends up now here in Washington, DC. But for 20 years I’m kind of becoming an adult growing into what this world is that America’s dealing with and partly creating and responding to. And while you’re living through it, you’re aware of it, but you’re also not aware.

And I remember a few years ago I was with my then colleague from AI, Gary Schmidt, and we were at the George W. Bush Presidential Library for going to work on some veterans military families issues. And we’re just going through that exhibit. And it was a revelation to our own selves about all the different things and the decisions and the course, I don’t want to say corrections, but pivots that happened, that Bush did not run his elections on. And so I did a quick little list here just to help remind ourselves. So the whole recount issue, Bush actually becomes inaugurated in January of 2000. Almost immediately there is the spy plane issue that happens over China.

Will Inboden:

April of 2001, yeah.

Rebecca Burgess:

Which causes great consternation and tensions and hackles to be raised. And very quickly after that, it’s not April. Oh, it is April, I think. Somewhere around April. Bush actually backs Taiwan over China, saying publicly that if China does ever attack Taiwan, America will go to Taiwan’s aid. So that’s very interesting to remember now considering what our current discussions are. But that’s just a few months into his presidency. And then we have September 11th, and then we have in October, of course, the beginning of Operation Enduring Freedom in Afghanistan. We have the anthrax scare in October, later in October. We have the withdrawal, I think this is also important to remember, in the 1972 anti-ballistic missile treaty that happens.

Will Inboden:

Yeah. Of the US and Russia. Yeah.

Rebecca Burgess:

Right. Which eventually allows us to start testing anti-ballistic defenses. Well, that we have the creation of another agency, Homeland Security. After this, we have the authorization. Then in October 2002, of the use of force against Iraq. Though, of course, it takes until March for us to actually decide to go in. We have February 2003, a CA director tells us that North Korea possesses a nuclear ballistic missile that’s capable of hitting the US. Then, as I already mentioned, we go to Iraq. 2004, we’re already in another presidential debate cycle with Kerry, and there’s all of that. We have the bird flu scare in 2006. And then we are attacking Al-Qaeda in Somalia in 2007. And then now we’re in 2008. And meanwhile there are all these color revolutions going on and Ukraine and Georgia and Kazakhstan. Is it Kazakhstan? Kyrgyzstan.

Will Inboden:

Kyrgyzstan. Yeah.

Rebecca Burgess:

Kyrgyzstan. So there are multiple things going on throughout those years, and trying to remind ourselves almost. But because there are so many things, it’s helpful I think to step back and to ask what is Bush and the world? And it seems like the volume is slightly organized around that principle. And starting with the soul of it and then the operationalizing of it, and then the stabilization. So what is the soul? What is the soul of the Bush, either foreign policy or Bush’s approach to the world that comes to the fore?

Will Inboden:

Yeah. And I’ll say, I got exhausted just listening to that litany, but let alone having lived them. And I come back very much to your question about the soul of Bush foreign policy. But let me just mention a few others too. Also, in February of 2003, you’ve got Bush announces PEPFAR. The President’s Emergency Plan for AIDS Relief ends up being this… We just celebrated our 20th anniversary of that too. But one of the most massive humanitarian assistance programs in history now saves some estimates, 25 million lives, like a $100 billion spent. August of 2008, Russia invades Georgia. We had another war breaking out under Bush’s watch, which we can now look back and see was a foreshadowing of Putin’s invasion of Ukraine. Then September of 2008, you have the global financial crisis, the worst financial crisis since the Great Depression. So a lot of things were going on.

Okay. So the soul of Bush foreign policy. There’s a number of directions I could take that, but I will say it is best found in the first substantive chapter of this volume, the one on the Freedom Agenda. And this was Bush’s desire or conviction, if you will, that freedom should be a universal right, available to all people. It comes from in part from his Christian faith, his belief in universal human dignity. And also more pragmatic or realist reasons of he just realized that America’s best allies and partners are almost always democracies, and America’s adversaries are almost always are dictatorships or authoritarian powers. These weren’t strong convictions he held on inauguration day when he is first sworn in. It’s something that he’d rather develops over the next couple of years.

Largely in response to 9/11. Right? The 9/11 attacks, when he starts asking what are some of the root causes of terrorism? Why is it that these Islamic radicals are bent on murdering thousands of innocents? Where do they get these beliefs? Where do they come from? And realizing that some of it at least stems from growing up in authoritarian sclerotic societies without opportunity. Some of this also comes from his just reading of history, seeing those color revolutions breaking out to 2003, 2004, 2005. Rose Revolution in Georgia, Orange Revolution in Ukraine. We could go through those. And it’s most robust expression you can find in his second inaugural address from January of 2005. Much criticized in some circles, I think much misunderstood. But that is certainly, I think the disbelief in universal human dignity and liberty is certainly an animating spirit or a through line for Bush foreign policy.

A couple of other things I could mention are more specifically on Bush dooctrine on counterterrorism, is not distinguishing between the terrorists themselves and the state sponsors, by holding them accountable. Another one is not allowing problems to fester, but trying to take early action to address them before they become even more significant threats. He was always encouraging us, “Think big. Let’s think big, let’s think forward. We don’t want to hand over a ton of lingering problems to my successor, we want to address as many as we can now.”

And I think there’s a certain nobility and sense of responsibility to those aspirations. But as we experienced, and as your listeners may be thinking, those can also lead you, as Steve Hadley has put it before, to our reach exceeding our grasp. Right? To take it on too many things. To maybe being a little more reckless when some of these things would’ve been better to let festering. Quite a few problems in international politics can’t necessarily be solved. But they shouldn’t be ignored either, sometimes they just need to be managed. But those would be a few of the features I would put to the animating spirit, as you had asked about Bush foreign policy.

Rebecca Burgess:

Yeah, so could you maybe talk a little bit more about the Freedom Agenda. A little bit more in depth, but what that means for Bush.

Will Inboden:

And I do encourage our listeners to, if you can, take a look at the book and read this chapter. The retrospective chapter in the book as co-authored by the late Mike Gerson. Mike just died I think just a couple months ago. And then Pete Wehner, who had both been Bush speech writers and played a key in role in this.

But the Freedom Agenda, another one of its antecedents, which is less appreciated, is actually the Israeli-Palestinian conflict. And as Bush was taking a fresh look at that conflict and asking if there’s any possibilities for negotiations, he realized that a core problem there was Yasser Arafat, who was a dictator ruling the Palestinian people, was not democratically elected, and was a terrorist. Right? And he just decided that there is no possibility or no prospect or no hope for a permanent stable settlement between the two sides if the Palestinians don’t have some voice in their own government, some voice in their own future. And so he develops kind of a grand bargain. He becomes the first president to officially call for a Palestinian state, a two-state solution. But he ties that very much to, “You Palestinians, you got to get rid of Arafat. Because that guy is not a responsible leader and there’s no possibility for peace while he’s there.”

So it starts with that strategic calculation, if you will, about the right and wrong conditions for a peaceful settlement between Israel and the Palestinians. But out of that becomes that broader strategic logic of realizing many of the security threats the United States faces, North Korea, Syria, Iran, China, now Russia. Also happened to be authoritarian or dictatorships of some sort. Meanwhile, more positively, as Bush was looking at what we might call successful or well-functioning countries and societies, almost all them have some form of democracies, some form of self-government, of self-rule. And they usually are going to have healthier economies. They’ll be less prone to going to war against each other or engaging in destabilizing behavior.

And so as a combination of these principled and practical reasons, why he decides he doesn’t just want to be managing the downstream bad fruits of these dictatorships and terrorist groups and others, but rather how can we go after some of the root causes and how can we support the possibility of a better life for those people, many of the people living under these.

I should also say that Bush here was shaped quite a bit I think by recent history. Because again, as we’re talking about this now in the year 2023, as you and I both know, democracy globally has not had a great run. The last 15, 16 years, it’s been on a steady decline. You see this in the Freedom House Index and other indices. And I think many Americans have grown rather skeptical or less enthusiastic about the possibility of promoting it.

But from the vantage point of the year 2001 or 2002, when Bush is first developing these ideas, look at what the previous 15, 20 years of world history had looked like you know, the 1980s and 1990s. Those had been a golden era for democracy. Right? There had previously been a notion in, “Oh, those Catholic countries, they can never be democratic.” Because they’re, I’m being a little crude here, but they’re loyal to the Pope and they don’t think for themselves. And again, listeners, I don’t believe this, but this is what some of the caricature was. But then you had seen a wave of democratization in prominently Catholic countries, Spain and Portugal in the 1970s, Philippines, Chile, Argentina, Brazil, others in the 1980s. And realization, “Okay, so we shouldn’t have made that exception for Catholic countries.”

Then there’d been a belief, well, those Asian countries, they can’t have democracy because they’re Confucian, they’re hierarchical, they don’t believe in empowerment to the individual. But again, in the 1980s and 1990s, you had Philippines, Taiwan, South Korea, Indonesia, all democratized. I could go on. But then of course, you’d also had the, and I will go on, you had the peaceful end of the Cold War. Right? Where all of sudden these countries, Central and Eastern Europe, who had all lived under communist dictatorship for four or five decades, undergo peaceful transitions to democracy. And so if you were watching world events or reading the tides of history in the early 2000s, and then you’re seeing these new color revolutions of more democracies, it does seem like that is the tide of history. And better for the United States to be supporting and encouraging that, rather than necessarily resisting it.

One final important point on this, is the first real strong statement you hear from Bush on democracy is in November of 2003, he gives a speech to the National Endowment for Democracy on the net, on one of their big anniversaries. And this is when he comes out and says, “For several decades the United States has pursued a policy in the Middle East of supporting dictatorships and monarchies there, thinking that it would give us stability.” But he said, “We’ve learned since 9/11 that trying to purchase stability at the price of liberty will give you neither stability or liberty.” Now we look at the world today, we can see the Middle East still is a pretty troubled place without very many at all models of functioning democracies.

But he was correct, I think, in his diagnosis. And that in a lot of ways, seven years before the Arab Spring breaks out, predicted this current model of these dictatorships and autocracies is pretty brittle. Right? The people are not very happy there. It’s not giving them a good life economically. It’s not giving them opportunity and freedom of expression that they want. And it’s something of a breeding ground for jihadist terrorism too. So that was an important part of his diagnosis as well. I’m sure no one wanted a winded answer.

Rebecca Burgess:

No. No, it was great. I mean, you could have gone on. I’m sure you have an entire semester in fact, that’s probably about all of these things. Because you could. But I think it’s both helpful and actually quite powerful to give that grounding. Because once again, presidential decisions, statesman’s decisions, matters of foreign policy don’t come out of the blue. Or very, very rarely are they these abstract things that just happen in a person’s brain and then they say them. They’re influenced and shaped by observing how things have happened.

And as you were speaking, I was even wondering to what extent the entire experience of 9/11 happening so early and thinking, we have these people who are warning us, and we didn’t pay enough attention how much that experience alone just shaped then the responses that happened with other individuals in other countries and other situations. And saying, we need to just take care of this right now, because otherwise we’re going to have, as we often heard, another 9/11 on our hands. And that was something that was simply couldn’t happen and no one wanted to happen. I mean, in a way I’m almost, I feel like I need 10 minutes to just recoup my thoughts about all of that in a way.

So I’m just kind of following the breakdown in the book itself of how it’s organized in these parts. And we have, as you said, the soul of the Freedom Agenda, but then also we have the things that everyone is going to be looking to this book for. Of course, Al-Qaeda, the fight against Al-Qaeda, the war on terror, Iraq, Afghanistan, even Pakistan. And then of course I was like, “Oh, there’s one on Columbia. Oh, that’s right, many things are going on in Columbia, are going on in Columbia.” But you also have a chapter of the war of ideas. And I was wondering if you would mention what this is. How you differentiate this within the Freedom Agenda, within the more boots-on-the-ground things that are also happening.

Will Inboden:

Yeah. So war of ideas, this goes back to this core question that Bush had of the root causes of terrorism. And some of this comes out in the first year or so after 9/11. The United States has some pretty robust initial successes in counter-terrorism, right? We kill or capture quite a few of the other architects of the 9/11 attacks. We’ve got the Jihadists on the back heels. We also realize new jihadists are being created. New generations of young Muslims in some sectors are becoming radicalized and wanted to take up violence against innocent civilians.

And that’s where Bush wanted to be clear that we see this as not just the problem of one organization, Al-Qaeda, or a few isolated individuals, but rather there’s this whole ideology behind it. Right? The nihilism, the neo-fascism, if you will, of jihadist ideology. And also taking the enemy’s ideas seriously that the Jihadists did have a certain vision of what they wanted, this rather militant intolerant, universal caliphate. And he decided right there, I think that we need to counter this idea rather than just trying to kill or capture our way out of this problem. And so how do we actually defeat this idea?

There’s another important insight here, which is that he decided rightly very early on, this cannot be seen as a war on Islam. Right? We’re not going to go to war against 1 billion people in the world, with the world’s largest religion, spanning every continent. Especially because most Muslims do not support the Jihadists, and so they don’t speak for our faith. And so as part of enlisting a broader coalition against the jihadist, he wanted to support and encourage and empower peaceful Muslims who believed more in pluralism, intolerance, and didn’t believe in that more militant and violent version of their faith.

So that was behind the framing of the battle of ideas. And asking, what can we do to de-legitimize and counter and neutralize jihadist ideology, and in turn, going back to our Freedom Agenda discussion, how can we support a positive alternative of free societies? So that was behind the framing of the battle of ideas.

Rebecca Burgess:

And then this becomes a kind of put into practice with some of the development and aid that becomes part of the agenda. So what were some of the… I mean you mentioned PEPFAR, but there was some other big initiatives which you cover in the book as well.

Will Inboden:

Yeah. And this was all done under the rubric of what we called smart development. Right? So Bush, again, comes into office, I think, rightly skeptical of some of the, if you will, more traditional or twentieth-century development models of large bureaucratic organizations doing state-to-state transfers or big handouts. Right? And you looked and see, all right, over the last few decades, United States had spent time, I don’t know, maybe something like a trillion dollars on economic aid to poor, impoverished and developing countries around the world. And there didn’t seem to be a whole lot to show for it. Okay? Many of these countries were still corrupt and impoverished. But he didn’t want to walk away from the problem entirely, especially after 9/11, again, where he realizes that some of these same impoverished countries are also breeding grounds for terrorism.

And so that’s why he develops a whole suite of new development initiatives under this rubric of smart development, that were designed around principles like accountability, transparency, positive incentives, citizen empowerment. Again, these may sound like just happy talker platitudes, but I’ll give a few examples of what they look like. So he creates the Millennium Challenge Corporation. It’s trying to incentivize other countries to get their governance in order so that they can then receive additional economic aid from the United States. So it’s say, all right, you first have to meet certain benchmarks on anti-corruption, on transparency, on good governance, before you’ll then be eligible for these economic aid grants. So tying it much more to accountability and good governance there.

Where PEPFAR, as we’ve mentioned, again, a whole suite of activities, but not designed to support economic growth or other state bureaucracies, but rather just to save lives. Realizing that these countries primarily in Africa are not going to have much hope of economic growth and development if their most young and vulnerable are dying or given a death sentence from being born with HIV/AIDS or if their young, most productive members of society are again being given this death sentence. And so designed to do these health interventions, all right, if we can save lives, then these people can be productive economic actors and help put their countries on a better path.

So those were a couple of features of this broader smart development agenda. A lot of which continues today. So I think that is certainly one of the positive features of the Bush legacy.

Rebecca Burgess:

Well, once again, so much there to think about and to delve into. But I wanted to ask one very pointed question, and then one that hopefully ties into… You end the book on emerging challenges and great power competition and a lot of things that we now are hearing every day and multiple times a day. But before we get there, I just wanted to ask, as you and the team, your fellow editors were going through these memos and thinking about them, at any point did you step back and ask yourself one of the biggest elements of our wars in Iraq and Afghanistan and something we talk about in the civil military relations community a lot is this, the military went to war and America went to the mall. And that was a product of a very conscious decision on Bush’s and the Bush administration’s part, at least as far as I understand, of trying to encourage Americans to not stop their lives and to continue living and involving themselves in the economy, strengthening our economy and our democracy in those ways, those economic ways.

Was that the right decision to make kind of that dichotomy? And was there ever, even in 2008, as you all are writing these memos, is there already a thought of maybe we should have nuanced that in a better way or not made that distinction? So that’s my pointed question.

Will Inboden:

Yeah. No, it’s a very good one. And it’s hard to think back to… And by the way, just to clarify, I left administration at the end of 2007, so I wasn’t there for the actual production of these memos. But I’ll answer your question more directly. So I’ll say that decision early on after 9/11, to encourage people to go about their daily lives. I will say it was understandable at the time, and I’ll explain why. And then I’ll also say that in hindsight it is one that I regret. Absolutely. So I hope that can be an honest answer for your listeners.

But first, on why it was… I will say it was understandable at the time, really two reasons. One is you had mentioned being in high school when 9/11 happened. I had moved back to DC a week before. I was actually at AI the day it happened, with our mutual friend, Gary Schmidt, among others. It’s a few blocks from the White House. I had passed right by the Pentagon an hour before the first plane hit. So this is very vivid. I bring that up because the months after 9/11, the sense of terror did not go away. All of us in DC believed that it was not a matter of if we get hit again, it is when will we get hit again. Right? And you’re just in this constant state of siege. And what Bush wanted to do was find a way for the country to have a very robust and vigorous counter-terrorism response to go kill those bad guys who had hurt us and to stop others from doing it again.

But also for the country itself, the 300 million plus Americans, whatever our population was at the time, to not live the next several decades in a constant state of terror and siege. Right? And that is the worst part of terrorism. It’s not just the material costs or the people it kills, is the way it plays with your mind. The way that it takes away the possibility of even living a free life, and instead you are in a constant state of quite literally terror. Okay? So that was one goal he had.

Then the other more practical one was, after the 9/11 attacks, the economy goes into recession, the stock market plunges, we are in really, really bad shape. And you realize, look, if everyone stops working and stops producing and stops shopping and stops consuming, our economy will never recover. And so there’s a very practical… And a political leader’s responsibility is to help maintain confidence in markets and confidence in economic activity. And so those were the two, I think understandable reasons why the encouragement to go back to your daily lives and go back to your shopping and your working, they were part of this broader principle of we can’t let the terrorists defeat us, we’ve got to still be living as Americans.

But, as you rightly point out, what over time becomes the effect of that, it’s that a tiny minority of the American population, almost exclusively those serving in active duty military, to this I would also add a number of intelligence officers who spent vast amounts of time overseas, a number of diplomats, other national security professionals, that less than 1% of the country carries the vast majority of the burden, the actual burden of the fighting. Whether it’s the literal kinetic fighting or the overseas deployments or the stresses of all the different counter-terrorism problems. And over time, I think that relieved too many of the rest of us Americans of our own responsibilities for some sense of sacrifice, even if it’s not necessarily putting on the uniform and deploying down range. But yeah, so over time I do think that became a pretty corrosive effect.

Rebecca Burgess:

Just to that point about the sense of terror that didn’t go away. I mean, October of 2001, there’s the DC shooter. There were, what, the two different planes that failed over New York, Manhattan, or that area, and people thought it was another attack. I mean, this all-

Will Inboden:

The impact that you mentioned, yeah, it was literally a terrifying time for the next year.

Rebecca Burgess:

And that movie, *The Pitch*, I’m pretty sure it’s called *The Pitch*, about Bush going out to Yankee Stadium and delivering the first pitch, which he gives a strike and he’s wearing body armor. And so one, I think it’s a beautiful little film, but it helps remind you about all of those different things. And how powerful and unifying that one moment was when President of the United States without fear walks onto baseballs, and everyone is back in the stadium and saying…

So the larger question I had is maybe a little more complicated or not. So about two years ago, the twentieth anniversary of September 11th, *Law & Liberty* that hosts this podcast, they do these things called forums every month. And they have one big essay, and then they invite people to respond. And they had a historian, William, I’m going to get his name wrong, William Anthony Hay, wrote the lead essay. And it was essentially saying that our decision to fight wars in Afghanistan and Iraq afterwards is the one reason why America isn’t prepared to deal with everything from China to Russia to all these things. So essentially it was a mistake. In my response I said, “I don’t believe that’s true. I think it showed for us once that we had to start taking foreign policy, national security things seriously again. That we had real enemies. That deterrence, by responding militarily, is a real thing, amongst these things.”

But I do have to ask and I do have to wonder, reading through this book and realizing where it ends and where we are today with China and Russia and things that seem to have been constantly in the subterranean ground, I guess, of post-Cold War. Simply we’re not taking care of or not paid attention to. Or maybe that’s our perception. Maybe they were, and maybe that’s what we can find in these transition memos. Is there a way while you’re working within an administration on these of-the-moment questions, like war, to also pay attention to these longer-term festers so that we don’t end up in 2023 with a near war, potentially on our hands with China and Russia, and Russia and Ukraine again? Or is it just simply that, as you mentioned, we can’t solve all foreign policy problems, sometimes we can just manage them and sometimes we don’t pay attention to them?

Will Inboden:

Yeah, it’s a great question. And I will try to give a balanced answer and I’ll try to keep it somewhat succinct so , we can go on for several more hours on this one. But I will say a few top-line points. First, after 9/11, Bush was absolutely correct to make stopping another terrorist attack his overriding priority, and everything else becomes secondary to that. It had to be that way. And we can be lulled into something of a false sense of security, and frankly, a false sense of history. If we look back, now almost 22 years later, as we’re here in 2023 and say, “Oh, well since there hasn’t been another large scale terrorist attack in the United States, therefore it wasn’t much of a threat.” No, that gets it completely wrong. A fundamental reason why there hasn’t been another large-scale terrorist attack in the United States is because of these strategies and doctrines and policies that Bush developed to stop one. Right?

And I’ll continue it out and give credit to the Obama administration or the Trump administration, now even the Biden administration. Every administration since then that has continued to do its part for counterterrorism. There are thousands of jihadist bad guys out there, who for the last 22 years up to now, would love nothing more than to pull off an even larger terrorist attack on the United States than 9/11. Right? So let us not be lulled into, again, like I said, a distorted sense of the threat or history, because we haven’t been attacked again.

Second point is during Bush’s first eight, nine months in office, so throughout most of 2001, before 9/11, it is not that Russia and China were significant threats to the United States at the time, and he started focusing on them, than 9/11 happens and he looked away from them. Rather, he inherited from the previous decade a very different set of challenges and strategic framework for both Russia and China. We’ll start with Russia first.

The Russia problem that Bush inherited was not a strong, aggressive Russia, it was a weak Russia that we worried was essentially a Somalia with nukes. Right? I mean, was a weak and failing state that still had this large nuclear arsenal, but otherwise was on the potential verge of state collapse. And so the challenge for American policy then was how can we help stabilize Russia. And then, in turn, not treat Russia like an enemy. Because if you treat them like an enemy, they’ll certainly become an enemy, but rather help integrate them into the international system and pursue a more constructive relationship with them.

Similarly with China. China wasn’t worried about it being a failed state at the time, but China was still much weaker and was still rising as an economy. And the hope and strategy was, all right, again, let’s treat them more as a friend and hope that they’ll act like a friend, and let’s support this integration of them into the international economic system and so on.

So that’s the strategy that Bush inherited from the Clinton administration. And that’s largely the framework he continued. He was a little more raucous towards China than Clinton had been. You mentioned his promised to defend Taiwan, the tensions over the Hainan Island’s spy plane. He called China more of a competitor than a cooperative relationship, things like that. And then of course, 9/11 happens. So those are the two parts where I’ll defend the Bush administration legacy.

Here’s where I’ll be more critical. And you can see this in some of the book as well. And hope our listeners haven’t given up on me yet. Right? I do think that by the second term, when I’m on the National Security Council staff, there is becoming more of what you might say, an internal debate within the administration about, “Huh, is China on a good path? Is Russia on a good path?” We still see some ways that the engagement strategy may be working, but we’re also seeing some worrisome signs. We’re seeing that China has becoming richer, but not more free. And that it’s putting a lot more money into its military. And that its military seems to be orienting towards the United States as its main threats, even though we didn’t want to be a threat to them.

With Russia, we are seeing that Putin was poisoning dissidents and cracking down on free press. And in 2007 in Munich, he makes some very over-the-top and deranged threats against the West. In 2008, he invades Georgia. And so by the second term, we start to see some initial signs that these two countries are potentially going on in a bad path, a more menacing one towards the United States and our allies.

Bush did some things to hedge. This is a big part of why we launched the strategic partnership with India, which I think is still paying dividends today, is to help balance or hedge against a rise in China that becomes more assertive. But I do think that, this is where I’ll be a little more self-critical of our legacy in the Bush administration, that we, two things, one did not become alert soon enough to just what bad paths Russia and China were going on. And second, even for those within the administration who did become more alert to those and were sounding some of the alarms, in 2007 and 2008, we were so focused on trying to salvage things in Iraq with a surge and seeing conditions deteriorate in Afghanistan, that that’s where significant resources and attention were being paid. And so I think we bear some responsibility there for being overstretched in Iraq and Afghanistan, and less equipped, even if we realized Russia and China were starting to become more menacing to do more about it.

Rebecca Burgess:

I would say that was probably the most tantalizing way of telling our listeners that they need to buy this book and to read the individual memos. That they can come to some of these insights themselves. So once again, that is *Hand-Off: The Foreign Policy George W. Bush Passed to Barack Obama*. That’s Brookings Institution Press. And I would just say on a final, final note that your last remarks reminded me of the passage in Hobbes’ Leviathan, where he’s talking about the state of nature. And he does make a note that international relations or foreign policy as an arena, is an arena of the state of nature all the time.

And that it’s a little bit like, the best way to understand it is in terms of weather. It’s not that it is a rainy day, it’s a rainy climate. And there are showers and water droplets all the time in which you respond to or how big your umbrella is, is the question of statesmanship. That even in a democratic system, presidents who don’t have all the lovers of power in their hands, yet they still set the tone in so many ways for exactly how administration does that.

So this was a wonderful reminder of the complexities of foreign policy, in and of itself, but in democracies. And we are so privileged to have you, Will Inboden, who is the executive director of the Clement Center for National Security, join us on Liberty Law Talk today. Thank you for listening.

Will Inboden:

All right. Thank you very much.

Brian A. Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

Tocqueville in Hypermodernity Mar 30, 2023

Georgetown Professor of Political Science Joshua Mitchell joins host Brian Smith to discuss his book, Tocqueville in Arabia, newly available in paperback, and offer Tocquevillian insights into the malaise of modernity.

Brian Smith:

My name is Brian Smith. With me today is Joshua Mitchell, professor of government at Georgetown University and the author of five books, including American Awakening, which we covered extensively on Law & Liberty, and the subject of today’s discussion, the recently released in paperback, Tocqueville in Arabia. Thanks for speaking with us Josh.

Joshua Mitchell:

My pleasure, Brian. Good to see you.

Brian Smith:

Good to see you. So I wanted to open with a fairly general question. Which is, what led you to write this book? And now that it’s being re-released, what lessons do you think it is most poignantly offering today?

Joshua Mitchell:

Well, what had happened in the early twenty-tens, and really even before that, was I had become saturated with academic political theory. I thought that the discipline itself had lost its way. And by that I mean, it had lost sight of its original insight, which was there in Strauss and Arendt, notwithstanding their differences. And that insight was, look we have to return to the great texts of the Western tradition, in order to understand the contemporary moment. And so what Strauss and Arendt did, was they juxtaposed the crisis of modernity in the aftermath of the Second World War, and notably the Holocaust, with Plato, Aristotle and the rest, and effectively invented a field. These books were studied in philosophy departments and probably in literature departments to some extent too. But the unique development that they inaugurated was the conjunction, the bringing together of contemporary events and the great ideas of history, of Western political philosophy. And the problem was that insight, which inaugurated the discipline, was slowly being lost. 1989 came and went, 2001, 2007, 2008, economic crisis. And political theorists were busy exploring secondary and tertiary literature. And it struck me that we had lost our way. And so I left Georgetown. I had been the chair, I had left to go off to the Middle East to help found the Doha campus of Georgetown School of Foreign Service, and then also left Georgetown entirely for two years and went off to Iraq and helped develop the American University of Iraq in Sulaimani. But all the time I was thinking about Tocqueville, who is always one of the … he’s the central guy really. I mean, I think of Augustine and Plato a lot too, but Tocqueville is always the central figure for me. And so it occurred to me very early on, really as early as 2001, even before I left for the startup team, that I would write a book about Tocqueville in the Middle East. Because Tocqueville has this grand claim that we’re moving from the aristocratic age to the democratic age. It’s not a claim about Europe alone, it’s a claim about the very movement of history. And so what I concluded was that if his thesis is right, then one could talk about the Middle East as being an aristocratic society engaging in modernity, just as Europe in the 19th century began to become modern. And so I thought I should write a book using Tocqueville’s framework about the crisis of the Middle East. And to come back to your original point, I did that because I thought the only way that these great books are properly studied, is if we juxtapose them with contemporary events.

Brian Smith:

I think that’s an absolutely accurate depiction of where political theory is at. We have lost this sort of sense of how to juxtapose what’s going on in our world right now, with great and profound insights of all of the authors you mentioned, and the rest of the canon besides. But so what I think hooked me as a reader of this book originally, and a lot of my students over the years who I shared this anecdote with, you open your prologue with this striking conversation you had with a Saudi man in a cafe, on your way to Doha. And you recount what he said about the effects of the 1960s in America, in Europe, and in the Arab world. So I’d like you to talk a little bit about the differences this gentleman was trying to get at. Why you use them as this interesting framing moment in the book, that opens up the field of conversation you want to raise? And what they mean today?

Joshua Mitchell:

So it’s a great question. I did write a new preface for the paperback, but I did not include references to that conversation, and I wish I had. The reason I opened the book that way, is because as Tocqueville indicated, and is confirmed by our students’ sentiments and prejudices, what’s going on in the West is not universal. And while in the West we’re largely moving toward, let’s say the Anglo world, we seem to be fixated on notions of universalism that may have emerged out of the sixties in America, but there were other 1960s movements. And so I was trying to give the reader a sense really of the plurality of the world. That our account was not the only account. And I think as a device so to speak, that was an important way of getting readers to realize that the whole world is not like us. And what I had said in that introduction was that the 1960s in America, yeah it meant social revolution, but it also gave us Silicon Valley and huge advances in technology. And what I was trying to indicate there, was that Americans are fundamentally a practical people. And while I think that’s true, and I’ll come back to this in a minute, I think the American, what I described as a kind of forward edge of the 1960s, has become deeply pernicious. We can come back to that. But while the Americans are practical people, Europeans are still working out the catastrophe of 1945. And I don’t simply mean the Holocaust and the wars, I mean the utter inability to deal with the problem of guilt. Which we have in America, with respect to the slavery question. But Europe has lost its Christianity, and yet still retained the Christian category of guilt, which was Nietzsche’s prediction. But the catastrophe of that in my view, has been the development of the European Union. And while I did not put it in this way in the book, I put it this way now. The EU purports to be more than an economic union. I doubt it will be ultimately a political union, I think that’s where it will falter. But I think ultimately it’s more than either of those things. It is a public atonement for what nations did in the 20th century. Which is why elite Europeans are not disposed to go back to the national model. They believe that the only way that they can atone for their guilt is to repudiate their nations. And that’s why nationalist movements in Europe are so interesting, because they’re not ultimately going to succeed, unless they’re able to somehow address the problem of guilt in a post-Christian age. In the Middle East, as my friend said at that cafe, they were wrestling with the question of how their fathers had betrayed them. And I mean by this, that many of the leaders, not just political leaders, but thought leaders, had halfway embraced the West. And halfway embraces are always dangerous, because they produce monstrous things, as Hobbes said a long time ago. And so you had a generation of young men who were trying to think beyond the perceived material of their fathers, and so turned to a hypothetical and imagined Islam that would be a comprehensive way of life. And this is Al-Qaeda and ISIS. And for the time it has died down, but I do not believe that we’ve seen the end of this. And the reason, which I believe I indicated very delicately in Tocqueville in Arabia, was that what’s happening in the Middle East, at least in some regions, is you’re moving to a kind of hyper-modernity, which is largely to be seen in the Gulf. And you cannot build a world on hyper-modernity, where everything is disconnected. You have all the accoutrements of life, but nothing is really linked together. And what I saw in the lives of my students was this vicious oscillation back and forth, between embracing autonomy, far more even than our students in America do, one moment. And literally the next moment, dreaming of an enchanted Islamic world from the 12th century. And so I think this movement back and forth between hyper-modernity and re-enchantment is going to be a feature in the Middle East for a long time. It’s died down now, but it will re-emerge. And we need to understand it as a re-enchantment movement. I think the term Islamic fundamentalism is utterly unhelpful. Fundamentalism as we know, emerges in the United States as a category. It’s a term [coined in] 1917 with the publication of the books in Los Angeles called The Fundamentals.

So we’re using Western religious understandings, to comprehend what’s going on in Islam. And the crisis is the Tocquevillian crisis. Because what Tocqueville saw, even in the author’s introduction to Democracy in America, was that while one could speculate about how the easy transition would occur from aristocracy to democracy, in fact aristocratic societies do not forget their past. “And so they look backward at the ruins,” to use his exact words, and they dream of an enchanted past. And that’s what I saw in the Middle East. I think again, while it’s died down now, it’s still very much a living option in the future. And then to pose your question, so where do we stand now? And I do say something about this in the new preface. So I think the American sixties generation has largely gone woke. While we’re supposed to be a practical people, what I argued in American Awakening is we’ve moved away from what I, in the latest book called a politics of competence, which would be American practicality. We’ve moved away from that, and we’ve turned toward a politics of innocence and transgression. We’ve gone woke, to use that kind of language. So while in the book I indicated that America was probably the better off of the three groups, the three sixties movements, it’s not clear to me that we are now. I would say that what I said about the Europeans continues to work itself out. They are still profoundly guilty about the 20th century. And so the EU project is their mode of atonement. It is their penance, EU is their penance. And then in the Middle East as I just indicated, I think for the moment it’s died down. It’s going to be very interesting to watch Qatar, and Abu Dhabi, and the other Gulfs, Saudi Arabia, negotiate their way into modernity. My sense is they know it can’t be hyper-modernity. But it’s not clear to me that they have a stable way of proceeding, without encouraging attempts to re-enchant the world. So I think the problem still remains there.

Brian Smith:

Well and that strikes me, that the enchanted dream that Sayyid Qutb, offers in The Shade of the Quran, to use his title. I mean, you can’t say that that’s not going to be an option on the table for people, especially because he’s explicitly framing what he presents in this dream against the United States. Against his visit to the 1950s in Colorado, and all of this sort of Western decadence that he saw there. And that comparison I think is still going to be lively for the next decade, two decades, unless something … I don’t know what would change about us, that would make that comparison not seem lively to them?

Joshua Mitchell:

Yeah. I think that’s right. But I also want to defend the messiness of, I’ll say America, but I mean something larger than that. I mean the Democratic Age, as Tocqueville understood it. So Tocqueville knew that there would be a temptation to re-enchant the world. And why did he know it? He said because, the current moment, the Democratic Age, has all sorts of discontinuities incoherencies. And it’s not easy to figure out how one should be. So family tells us one thing, economics tells us another, politics tells us another. There are all these domains of life that are running across purposes. And he does ask the question at one point, you might remember it’s in volume two, near the beginning. He asks the question, “So how does religion bear on this incoherence, this difficulty?” Remember, he writes the book and he says, “This entire book has been written under a kind of religious dread.” By which he means, that nothing fits. We’re in God’s world, but God’s world doesn’t fit. And so he asked the question later on, “So what kind of religion do you need in this circumstance?” He says, “Look, there’s two kinds of religion.” We can talk about Islam, and Christianity, and Judaism, and Roman Catholics, and Protestants, but that’s not how he ultimately divides it. He divides it into those religions which offer a comprehensive way of life. Which promise to bring utter coherence to human experience. And I will tell you, he doesn’t believe that can work, and we have to understand why. Because he thinks we’ve been thrown into a moment of history which is incoherent. Where we don’t really know what the future is going to bring. We can’t fully rely on the past, we can’t retrieve it, because we’ve been thrown to this new moment.

So he literally thinks that religions which offer a comprehensive way of life are tempting, but literally don’t comport with human experience. So then the question becomes, okay, so what kind of religion would comport with this human experience of disintegration? And he says, “Here Christianity is probably going to serve us better. Why? Not because it’s a comprehensive way of life.” Now, this is a huge question. Does it offer a comprehensive way of life, or not? But his reading is that it doesn’t, it offers hope. And what that means, I think in his estimation, is the world is broken. There’s a promise that it will be healed at the end of time, and the disunities will all be unified. And so what hope allows you to do, is to endure a world which can’t be put together by us now. So that kind of religion can help us endure the fractionalizing that occurs in the democratic age. But a comprehensive way of life attempts to give an alternative, but can’t deliver because life isn’t that way. And he does, we should be clear, he does have criticisms of Islam on the basis of this distinction. That Islam does offer a comprehensive way of life. That’s why he does think, this is again, long before Israel became the thorn in the side of the Arab world. The problem in the Middle East is not precisely Israel. The problem in the Middle East goes way back before that. Namely, modernity is coming everywhere, and Islam professes to offer a comprehensive doctrine. Now, having said that, we also know that there are many Muslim scholars, often in Europe, in England, in the United States, who are trying to provide an understanding of Islam that does precisely what Tocqueville thinks a good religion would do. Which is not to be utterly comprehensive. To somehow accommodate the strange twists and turns of the modern world, without Islam losing its soul. So there is a battle within Islam over this very question. Is it a comprehensive doctrine, or can it work within a world where one cannot find reconciliation?

Brian Smith:

So one other thing I wanted to draw back to before I go to the next question I actually had planned, which is with respect to what you said about Europe and the sort of repudiation of the nation-state, the European ambivalence toward it, I wonder how much that, how would I put it? Disordered, sort of uneasy sensibility, explains the European ambivalence to how on earth to deal with Ukraine right now? That they’re unwilling to sort of wholeheartedly say, for us nationhood. Now they can be all for Ukraine, but I don’t know how you embark upon this sort of military action, and support, and things like that, with half your heart?

Joshua Mitchell:

Yeah. Well so Ukraine, it’s very interesting you raised this. Ukraine has been a difficult question, not only for Europeans, but for conservatives on the right, as you well know. So in the case of Europe, so you’re defending a nation-state, is that what you’re doing? And you’re defending it with a transnational organization called NATO. This is very peculiar. So Ukraine has emboldened both groups. It’s emboldened the nationalists, and it’s emboldened the EU, or of philic types who say “No, the age of nations has passed. And what we’ll do then, is absorb Ukraine into this larger European project.” I mean, this is one of the difficulties that the EU is faced with. It purports to be universal, so where is the boundary of this? Does it march straight through into Eastern Europe? Oh, what about Turkey? Well, it seems a bit disingenuous there, because it seems to me that the real reason Turkey wasn’t included, was the obvious fact that it’s an Islamic country and not a Christian country. So the charter of the EU indicates that Europe has a Christian past, a Christian pedigree, but does not say that it is Christian. But the point is, if you’ve got a Universalist society, it’s very unclear where the boundaries end for that. So Europe is, people are scratching their heads. Those who believe in the nation and the universal project. And then, among members of the right, you know this as well as I do. Ukraine has been a difficult issue. Because on the one hand, many people, and I am affiliated with the NatCon movement. I mean, I’m one of their early members and Yoram and I are good friends. And I think he’s fundamentally right that we have to return to the age of nations. And in that sense, we should be supporting Ukraine. Except the problem is, that the support that goes in that direction, does not look to be oriented by national sovereignty, but by a kind of globalist impulse that encourages, or that includes, all sorts of, let’s say social teachings that are probably anathema to most of the people who want to save Ukraine as a nation, or most eastern Europeans for example. So the project to save Ukraine as a nation seems to be more about the globalist empire of pushing back against any particularism, Russia being the particularist nation. And so the difficulty is whether Russia is a nation trying to defend its own rights, or whether Russia is an imperial power destroying the nations. And I think that’s the way a lot of conservatives who come out of the NatCon movement and are defending our involvement in the Ukraine war, they’re saying, “No no, Russia is an imperial power, trying to push back against a nation called Ukraine. And that’s why we have to defend.” Anyway, it’s going to be very interesting to see how the Republican candidates respond to this. Europe, as we indicated, both of us, there’s a huge question on the forehead of all the Europeans about this. Because it seems to be moving in both directions at once, national and transnational.

Brian Smith:

Right. And I don’t have a lot to say about it, other than that it certainly worries me, because I’ve read way too much about Russian, previously Soviet and now Russian, nuclear use doctrine and know that they view them as tools, not as this sort of abstract threat. And whatever we say or do about this, however it’s resolved, has to respect, I think … And then this gets to your central insight, the age of nations is not passed. And if we don’t recognize that, and we view, however illegitimate we see some of Russia’s claims, whoever the people who are on Ukraine’s side fully in this, I think need to recognize that Russia has claims as a nation. That if you ignore them, they’re going to continue to feel like they cannot see peace. They cannot embrace peace.

Joshua Mitchell:

Yeah, I think one of the things that most irked Putin, was when Kerry and Obama, a long time ago, said something like, “Don’t you know, this is the 21st century? And we’re past wars, we’re past the age of nations.” And this is the horrible hubris of the Universalists. And it’s ironic as well, because in order to get to that condition of cosmopolitan universalism, they are using the instrument of the state to achieve that. And I think that’s really the question here. Are these elites going to be able to use the instrument of the state to destroy the state? And I think that’s one of the great questions of the 2024 election. Are we going to continue to elect leaders who are not fixing on the United States? I don’t like mantras like America First, et cetera. But it does seem to me that elites who are elected by their own people ought to be concerned first and foremost with the wellbeing of their own citizens.

Brian Smith:

Their particularity, their way of life, is what their elected to defend. So use a phrase, which I of course heard you say a great deal in the classroom, but that I think might be usefully teased out here. You talk about people who are possessed by the fable of liberalism quite a bit, in your writing. And one of the things that occurs to me as we’ve been talking, is we’re often talked about right now, as being in a post-liberal Moment. That liberalism is being shown as the illusion. Or to use our former colleague’s phrase, “It succeeded and therefore it failed.” Which I don’t think I agree with, at least not in Pat’s terms. But I wonder if you could talk about that a little bit, before we move on to the aristocratic versus the democratic age question that I have planned? Because I think this one might be useful for helping think through this question, particularly on the American right. On the side of these debates, to help us understand where the fault line really might be.

Joshua Mitchell:

Yeah. So I invoked the term, fable of liberalism, not to indicate that it’s a lie. But it’s strikes me that every political argument, every political position, has a story that underwrites it. Mythos precedes logos if you want to use that kind of language. And there is a story, there is a fable that is the preamble to the liberal frame of mind. And that story emerges out of the religious wars hundreds of years ago. And you can see this in Voltaire, for example. Not known necessarily as a liberal, but his famous saying, “I go to the English stock market. I see Jew, Christian and Muslim. They don’t care about each other’s religion, as long as their money is good.” And the liberal fable is that once there was an age of war, and by setting our sights lower on commerce, then we can bring about peace. And what is interesting is that both left and right largely hold to this fable. So we’re in a mess with China now. Why? Because we gave them WTO, Most Favored Nation status. Why did we do that? On the left, why did the Clinton administration do that? Because it believed in the fable of liberalism. So let us lower our sights. Let’s not look at the metaphysical differences between China and the West, which are considerable. Let us lower our sights and engage in commerce, and that will bring peace. And then on the right, this happened as well. In the aftermath of 2001, George Bush without wincing, thought, “Well, the reason why there is terrorism, is because these people have not yet entered …” I used that phrase in quotes, of course. “Have not yet entered into the age of commerce. Let’s get actively involved. Let’s help them develop commerce.”

This is the fable of liberalism, both on the left and the right. And the problem is, it is true that it unfolded that way in Europe for a time. I mean, it didn’t put an end to religious conflict. But the general supposition of the liberal, and here I don’t mean the Toquevillian liberal, but most liberals. Because I think Tocqueville actually, he saw the theory and the move past it, and we can talk about that. But the general supposition is, let’s just bring commerce and everything’s going to be fine. This shows up, by the way, even in our domestic policy. So Jack Kemp says, “The problem of the inner city.” Which is a euphemism for the Black underclass. “Can be solved by enterprise zones.” So it’s both a domestic and a foreign policy disposition of mind, that goes very far back. It’s 1720s with Voltaire, where gets worked out through Montesquieu, it’s lurking in Hobbes. It’s there in Tocqueville and any number of other figures. So it’s a deep, deep idea. It’s a deep, deep fable that we have, that continues to inform foreign policy. But it does not recognize that people are not simply driven by their preferences, there are deeper things at work. And this has been my great apprehension, with respect to say, the State Department, the Pentagon, and the CIA. Because now what they’re using to figure out US foreign policy, is gaming simulations based on this rational actor economic model of man theory. Which is idiotic, because the rest of the world doesn’t behave the way the models behave. And I’ve got a piece coming out soon with the American Conservative, that talks about the Iraq War. I mean, we are not, let us submit and agree that America is a preeminent power, limited imperial power, whose task it is to make sure the sea lanes are open. I’m prepared to live with that. But the difficulty there, is that if we have destroyed, and we have done that. We have destroyed the vast reservoir of knowledge that was accumulated after World War II, by the area studies experts, which were then destroyed. You saw this at Georgetown, were then destroyed.

Brian Smith:

Absolutely.

Joshua Mitchell:

After 1989, when area studies became comparative politics and adopted rational choice theory, to try to understand the whole of the world. This was utterly idiotic. It was in a way purely American, because we wanted to simplify everything, and not understand the richness of these cultures, and the motives that the citizens have. So it let us submit that we have a responsibility. That empire has passed to us in a modest way, of keeping the sea lanes open. We don’t have the capacity to understand peoples around the globe, because we have accepted the crude prejudice of the fable of liberalism. That somehow commerce, by destroying the rich understandings of human life, and reducing them all to commerce, we can somehow bring peace. So we’re in a terrible position, in terms of our preparation, to understand the world. And yet we have this massive military, and a group of thinkers at the CIA, the Pentagon, and the State Department, who are utterly impoverished in their thinking.

Brian Smith:

And the irony here I think is, if you actually talk to people who lead soldiers, sailors, marines, they’ll understand on an intuitive level how people are actually motivated. Their subordinates are motivated by that whole range of interests that people from Thucydides, and honor in the classical tradition of IR would talk about. Isn’t just interest, it’s fear, it’s honor, it’s principle. And without pulling all of those in, the way that Tocqueville … I think here of some of Dan Mahoney’s more recent stuff on statecraft.

Joshua Mitchell:

Yes. Where he talks about the way that all of these great statesmen actually encompass that whole of the human experience, in the way they make their decisions, and attempt to persuade their people, and engage with other leaders. If we don’t bring that whole mix of things, I think everything that you’re saying about the disaster that’s looming before us, and that’s already upon us in many respects, will just keep on reaping horrible dividends. But let me add something here. So one of the things I’m thinking through these days, is the transformation that is underway at the moment. So let’s just pause at three moments here. I’m thinking out loud, but I think this is right. So we had that moment after World War II when the GI Bill guys saw a horrendous world out there and said, “We don’t want that to happen again.” First they went and got PhDs, and then they became our ambassadors. So they were really, really smart people.

Brian Smith:

John Rawls?

Joshua Mitchell:

Yeah, right. Yeah. So my dad, as you probably might know, was a member of this group. I mean, he wrote the first book on the Muslim Brotherhood. But all of his friends went on to be ambassadors. Jim Aikens, Bill Crawford, all became ambassadors in the Middle East. And they would have ongoing conversations. So our ambassadors were studied men. And after 1989, we thought the Cold War was over. We’ve reached the post-war period. And so for lots of reasons, we gave up on all that, bad reasons. And turned to the second moment, which was kind of a rational choice model of human agency. And so we do gaming to figure out whether we should go to Iraq or not. And you hear today, “Gaming simulations have indicated that we can beat China in the South China Sea.” Please. There’s no gaming simulation that can tell us anything about what’s really going to happen. So that would be the second Moment. We turned from deep knowledge, to a kind of superficial social science knowledge, which professes to understand the whole, but is so superficial that it can’t really make any predictions. And this is what you always have to ask social scientists. Give me a non-trivial prediction, based on your so-called science. And they cannot do it. And we’ve been doing this for well over a hundred years now. But I think we’ve entered into a third moment, and this will dovetail with what I said in American Awakening.

The third moment is that we are no longer using these extensive training grounds, called universities and colleges, to produce expert competence. Even if it’s rational choice, social science expert competence. No no, that’s not what we’re doing now. What we’re doing is, we’re teaching our students fear and guilt. We are teaching them where they stand in the moral hierarchy of purity and stain. And you can be somebody who’s deeply stained, but you’re a useful idiot as long as you keep announcing that you are permanently guilty, and that you have privilege. And that seems to be what our university elites are now teaching, and we’re going to have a generation of people who think that way. And we already have. And I do think the Biden administration represents a watershed. So as much as the rational choice theory does damage, because it does not accord with the multivalence of human persons in societies, this might be even worse, this next phase. Because the only criteria we use is moral purity and stain. So the military now is not concerned with winning wars, it’s concerned with going green, and making sure that the innocent victim groups get the surgeries they need. I mean, this is really a new phase, and we have to recognize in itself. And the reason I say this at this moment, is because I think conservatives really need to upgrade their language. This is not progressivism. Progressivism was concerned with expert competence, and at least it believed in competence. The founder’s vision believed in citizen competence, and that’s why you could have small government. And conservatives keep talking about the importance of small government. None of this works, and here I draw directly from Tocqueville, unless you’ve got citizen competence that runs very deep, so that you can have a minimal government. So at least the second moment of American history, the progressive moment, believed in competence. This third moment that we’re now stepping into, the age of the new regime change. And it is a regime change, which is concerned not with either kind of competence, citizen or expert. Now our universities are training people in fear and guilt. And as long as they, I don’t call it virtue signaling, I call it innocent signaling, because it is a biblical category. As long as they signaled the right things, then they get a pass. So it’s a new phase, and it already has drastically affected our foreign policy. We will see nothing but incompetence and disasters, so long as we step away from what I call the liberal politics of competence, and move toward the politics of innocence and transgression. Which is the project of identity politics.

Brian Smith:

Right. And right now it’s already upon us. You can find on Twitter entire accounts dedicated to photographing the Sovietization of the US Navy. And when you talk to sort of expert logistics people who have recently gotten out of the Navy, which I’ve done. I mean, one of the things I point to is, it’s the slow creep of incompetence, in the face of this guilt catechesis. When you have, say a missile cruiser that goes out, and 10% of the crew is on leave for training academies or pregnancies. And another 10 or 20% are being sent to ever more required, check the box, mandatory education schools. And some of them are for learning nuclear engineering or whatever the next thing they’ve got to learn is, to get promoted. But 10% of it now is DEI training. Which if you don’t get certified, check the box to do that, you don’t get promoted. And so lots of sailors get out. And the captains and NCOs on these ships are forced to say, “Well what critical maintenance can we defer or cut, just so we can keep the ship running?”

Joshua Mitchell:

And so American ships are coming to port covered in rust on a regular basis, which they never would’ve been in the Cold War. Or even up until fairly recently, simply because there’s not enough hours of the day to stretch the human beings who are still competent, over the time remaining. Let me add something to this which nobody’s talking about, but I think we really need to think about. So let’s talk the Navy ships crashing into atolls and one another. So yes, we’ve moved away from what we’re calling here a politics of competence. We have to ask the question, what has allowed us to do that? And I think one of the things that nobody’s paying attention to, is that increasingly, as the world is operated by algorithms, then you seem not to need competence. And so you’ve got this interesting moment, where I think we’re living in right now, where increasingly we’re moving away from, or we’re trying to render competence as computer algorithms. So we’re going to have an algorithm to steer the ship. But if that goes wrong, then you’ve got a terrible problem. But if it goes right, you can carry on and push forward, away from competence, toward this politics of innocence and transgression, because you’ve got algorithms that are going to actually steer the ship. So this is going to only blow up when it becomes clear that either we need new algorithms, and there’s nobody to write them, because there’s nobody competent to write them. But I think ultimately what this is pointing to, is the need to recover competence. Another way I put this in the book is, there’s real analog competent knowledge. And then digitization is a substitute for it. So algorithmic substitution, supplementary is possible, but ultimately it all hangs together through competence. But we’ve made a bet that we don’t need to have this competence, we can turn toward algorithms. And then we can populate the workforce, not with competent people, but with woke people. So we’ve got to bring the algorithm part in here too, ’cause that’s really important. It’s not just on ships, it’s everywhere. It’s airplanes, everything.

Brian Smith:

Absolutely. And this actually does really relate back to Tocqueville in Arabia, I think in an important way. In that this is only thinkable under the pursuit of equality. Because you deny and you kick competence down the road when you don’t believe that experts can, or should be trusted. Or to set aside the highly credentialed expert thing, you don’t have that relationship with the mechanic, or with the teacher. That you defer to their competence anymore. You trust in the algorithm for the answer, but no longer have the judgment of when to use the darn thing.

Joshua Mitchell:

Yeah, great point. And let’s go back to the mechanic. So if a mechanic has competence, you’re going to trust him, and you’re going to build a relationship with him. And I remember this. I mean, we knew our mechanic personally. But if increasingly, cars don’t require the competence of a mechanic, but just computer automation. And everybody is taking their cars to the big city to get them tuned up once every couple of years, you don’t have this personal relationship. These algorithms, the proliferation of these algorithms, the effect of them is to destroy the local face-to-face associations that we really need. So the more we have these computer-generated algorithms that take care of everything, customer service for example, the more we’re going to be frustrated. The less and less we’re going to have any need for our neighbor. So this problem of algorithm substitution for actual competence, it is the great experiment we’re running right now. And my view is, because there is an actual by nature, proper relationship between supplements and substitutes, and algorithms can supplement but not substitutes for human competence, I believe the whole thing will blow up at some point. Because ultimately, we cannot turn supplements into substitutes. This is an ancient insight which is there in Plato, it’s there in Rousseau. I think it’s even there in Tocqueville, it’s lurking. But his formulation would be, the state can be a supplement to the mediating institutions in which we develop competence, but it cannot be a substitute for it.

Brian Smith:

And without the linked men, as opposed to the de-linked men who are necessary to make civil society run in the Tocquevillian understanding, we’re going to get that government stepping in.

Joshua Mitchell:

Yeah.

Brian Smith:

We’re going to get that trust in the algorithm that promises we could do it. I mean, as you were speaking, in my head I went back to conversations we once had about Leviathan and Hobbes. That the Leviathan has become this not immortal God, but the sort of invisible one floating in ones and zeros on the web around us. Which we turn to, to humble the prideful. To select who should be selected for various things, as if there wasn’t a person or a thing, sort of actively making choices that inform that algorithm. But I wonder if part of the backlash, and maybe this will drag us back to Tocqueville a bit more is, do you think maybe this backlash will be felt most keenly among the vestiges of aristocracy, and the horror of the de-linked people that they have, that you talk about quite a bit in Tocqueville in Arabia?

Joshua Mitchell:

Yeah. And so this is my hope. And I should also point out, it’s Tocqueville’s. I think what Tocqueville understood, and you just said it, was that aristocratic peoples understand that Universalist aspirations are not ones that we can build a world around. I mean, I think for example of Burke’s distinction between the excellence of simplicity, and the excellence of composition, in the writings on the French Revolution. It’s a remarkable insight, because the democratic soul operates with a frame of mind called the excellence of simplicity. I’ll give you an example. Covid is here. Everything must be shut down, the only problem we have is Covid, and the state has to step in. With the excellence of composition, which is an aristocratic way of thinking, everything is connected. Well, if we shut down the economy to save people from getting Covid, there’s going to be all sorts of collateral damage. Maybe we need to think about seven or eight things at once, rather than one thing by itself? And of course, Marx is the perfect example of this excellence of simplicity. Class is the key to everything. One thing is the key to everything. Or identity politics, it’s all about identity, that’s the only thing that matters. This is another example of the excellence of simplicity. But the question is then, where does one learn, or how does one learn, this excellence of composition? And while Burke doesn’t really lay this out, Tocqueville does. I mean, where do we learn that life is constant trade-offs? We only learn this in face-to-face associations. Rich connections, where we discover that the family is … well, we have to do this in the family, but we also have to do this. And then if we’re in a family, what do we do with our neighborhood? And all these rich questions, which don’t admit of a kind of Universalist single key answer. And so I think, well I know what Tocqueville says is … And you know this Brian, it’s what saves democracy from itself, are these mediating institutions. Where do these media institutions come from? They come from the aristocratic age. They are the survivals, the church, the family, the municipal institution, the legal system based on precedent. These are survivals of the aristocratic age. And of course, now you stumbled upon the central paradox in Tocqueville, which is the very institutions that we need, these aristocratic institutions, are undone by this democratic frame of mind, that there’s only one answer. So for the aristocrat we’ll say, well men are men, and women are women. And we’re going to partly understand each other, but it’s a real distinction. No, the democratic soul is completely incensed by a real distinction that says, “No no, we’re all the same.” Which is of course, the project to destroy sex differences in the democratic age. So aristocratic souls are the ones who grasp this in their bones. And what Tocqueville had hoped, was that since there are no longer nobles around, there would be a substitute for them that would occupy the mediational space. Well, you know the rest of the argument. It’s our families, it’s our churches, et cetera. And so it’s only by engaging in those rich associations and all the complexities associated with them, that we come to develop this excellence of composition, which allows us to make proper judgments about the complexity of the world. Unlike the democratic soul that says, national security state, Covid, bring democracy to the free world, or the whole world. These single key measures which purport to solve all of our problems. It’s idiocy, but it’s only possible when you destroy those rich associations, through which we can be confirmed in our understanding that no, there’s no single answer here.

Brian Smith:

Well, and trying, as we both have for, I don’t know how many years? And you combine the two of us when we’ve taught, together would be, it’s a lot.

Joshua Mitchell:

Yeah.

Brian Smith:

One of the things I continually found, and I know you continually remarked onto me, as we were talking about, well what does it mean to be a professor, and moving on. Was just, you can’t suddenly take kids who have, to take the phrase you use in Tocqueville in Arabia, that don’t have any hermeneutic of deference, and suddenly give it to them. And suddenly develop that in them.

Joshua Mitchell:

Yeah.

Brian Smith:

It’s the work of years. And it’s remedial work for most American, and as you encountered, world college students. But I don’t think it’s impossible. And don’t think you’ve seen that it’s impossible. So maybe we could talk a bit about what is still possible, with bringing students along in an encounter with texts to develop this?

Joshua Mitchell:

Yeah.

Brian Smith:

Totally new to them, kind of judgment.

Joshua Mitchell:

Yeah, it’s a great question. Here again, Tocqueville is so helpful. So his scheme of course is, there’s the aristocratic age and the democratic age. And there’s a number of characteristics you can identify with each of them, and they map onto each other, so in opposite ways. So in the aristocratic age, you’re looking to the past. You’re looking to the fathers literally, but also figuratively. In the democratic age, you’re looking to the future. Therefore, the aristocratic age is concerned with imitation, and the democratic age is concerned with innovation. So how does this play out in terms of the way we think about knowledge in these two distinct moments of history? Well, in the aristocratic age, there’s a hermeneutics of deference. By which we mean, we pick up a book, we read it, we have reverence for it because it came before us. Because it’s been handed down to us. Because by virtue of it being ancient and reverential, it exceeds our immediate understanding, and therefore we defer to it. And while I am, as you know, my relationship to Strauss is very mixed. But one thing I think we eternally owe a debt of gratitude to him about, is this hermeneutics of deference. I mean, he would tell his American students, “Listen, you don’t understand this book. You think you do, but what you need to do is to approach this book and pose your questions, but immediately say to yourself, the author has an answer to my question, which I don’t even understand. And so before I decide to offer my critique of him, you need to defer.” So there’s two hermeneutics, the hermeneutics of deference, and the hermeneutics of critique. And of course, this is critical thinking. And so our American students are taught to criticize. And of course we can see how this plays out in identity politics. “Well, this person has this kind of identity, therefore we have to dismiss them and purge them.” No effort whatsoever to engage another mind. This is deeply, deeply pernicious. And I do not say that we have to substitute the hermeneutics of deference for the hermeneutics of critique. I say in point of fact, what we have to do is both. We have to engage the author. We have to recognize that his answers exceed our capacity to know them. But nevertheless, to pose questions. It is morally easy, as I probably said in the book, to be engaged fully in the hermeneutics of deference, of the hermeneutics of critique. Because in both case, your soul is unmoved. You either bow down to the text, or you do nothing because you’re just ripping the book apart. That’s the hermeneutics of critique. The really difficult challenge for education is to do both. And I think what we have to do is teach our young people that their hermeneutics of deference matters. In this respect, at least when I got to the Middle East early on, the hermeneutics of deference was well in place. I will report, and I intimate this in the book. The book was written in 2013, but I’m teaching now a course, for the same group that I was at Georgetown School of Foreign Service in Doha. And the first papers I got back were very much hermeneutic of critique. It was, this is why Plato’s wrong. He doesn’t understand things political. And I would pose to my students the following question, “Well, so why is your understanding of the political, better than his understanding of the political? Maybe instead of you using your understanding of the political to critique him, maybe we ought to use his understanding of the political to critique what you believe?” So this hermeneutics of critique has penetrated into the minds of many of my students. I have very mixed views, after many, many years of involvement in American universities overseas, about what American higher education in the Middle East can do. I think at its best, it can help students who are wrestling in their own cultures, with the very problem Tocqueville thought was going to prevail in all cultures, namely the democratization of man. By which I mean the de-linking of persons. It can perhaps give those students a language to begin to understand the individuation and its perils, which they would not otherwise get in their homegrown institutions, they would simply get critiques of the West. Which they don’t believe, because they themselves are half hyper-modern anyway. So at its best, American higher education can expose them to questions which we have been wrestling with for a hundred years. Namely, what does it mean to be a citizen of the democratic age? Does it mean we’re just all Ayn Randians, running around being self-interested? Or does it mean as Tocqueville thought, that we can build a world together in face-to-face relations? Now that’s something the Middle Easterners, my students, they can appreciate, because they have rich networks of family. But what’s happening in these American higher education institutions often, not always, but I would say often. And here I’m just protecting myself in a way. What’s happening is that you’re getting faculty members who cannot get jobs in the United States. Or themselves are troubled enough, that they need to be utterly supported by huge sums of money that come their way, if they come to teach in the Middle East. You get people who hate the United States, who have one or another scheme of re-enchantment or purgation to peddle. And so our American universities in the Middle East are in a way becoming worse than the American universities in the United States. Deeply, deeply poisoned. So whereas they could have done some great good, but not to brainwash, but to indicate to the students that the feelings that they have of loneliness and isolation are not just their own. The whole crisis of modernity is this. And oh, by the way, here are some books that wrestle with this in constructive ways. Tocqueville being probably the most important. That’s what should have happened. But what is happening in fact, is you’re getting the most vehement anti-American faculty members you can possibly imagine going out there and hating on America. And thinking by the way, that that’s what those students want. Now, some of them do, some of them are fiercely anti-Western. But if you ask them what their alternative is, they will sometimes say something like, “Well, Islam.” And then you ask them to describe the Islam they have in mind. And you yourself, because you’ve studied Rousseau and all the anti-modernist marks, Heidegger and Nietzsche, you say, “Hmm, that’s curious. That doesn’t sound like Islam to me. It sounds like there’s been a vast exportation of European anti-modern thought to your region of the globe, which is now intermixed with what you call Islam. And so you’ve been poisoned by this mixture that’s neither Islam nor the West.” And that is my view on what purports to be a lot of anti-Western thought, or Islamic thought. It’s now, because of colonialism, so intermixed with European anti-modern thinking. Which is again, one thing we ought to be cognizant of, if we’re setting up universities in the Middle East. But in point of fact, we’re bringing over those who believe in Rousseau, Nietzsche, Heidegger, Foucault, Derrida, to teach students who are desperately trying to find their way. And what they’re given really is, I hate the West, and that’s going to give you meaning. And that is no way to build a university.

Brian Smith:

And entirely destructive of souls. So I wonder, so this is a thought that occurs to me as you were talking, that something dovetails here in my thinking about this. That we have this polar, either hermeneutic of suspicion, or of deference, when living in between actually requires suffering. It requires that you open your mind and heart, up to questions that are deeply, deeply unsettling. That are triggering, quote/unquote, to use this contemporary parlance. And I wonder if you could talk about what you think the connection is between our societies, running screaming from suffering, in the West in particular. And a sort of the decline of religious faith, which would help us understand ourselves as living in a trial, living with suffering. And the challenges we’re facing right now. ‘Cause it seems like these are all deeply interlinked to me. And one of my experiences teaching, that was always so difficult, was to get students to recognize, that to be able to cope with the life that we are thrust into, you have to ask these questions about yourself, and come to grips with what you really believe about God, about our relationship to one another. And then if you don’t, you are just going to be sort of at the mercy of these outside forces entirely, and see yourself as a passive recipient of everything. And never be able to live in that active voice, so to speak.

Joshua Mitchell:

Yeah. Well, so just a quick, seemingly long way of getting into this. I’ve taught at Georgetown since 1993, and when I first started teaching St. Augustine, it was fairly easy, because my students had a kind of theological fluency. Now I find it easier to teach St. Augustine on the Doha campus to Muslims than I do to Georgetown students. Because theological fluency has largely disappeared in my students. And by that, I don’t simply mean catechisms and things like that. I mean, what Christianity I think, should I say it’s most important contribution. I’ll say it with a full understanding, there’s no such thing as the most important contribution. But what Christianity does, and it’s right there in the Book of Genesis, is that it indicates to the reader, who might be wrestling with the darkness in the world, it indicates right there in those passages in Genesis 3, that the preeminent disposition of the human heart is to blame someone else. So Adam and Eve sinned, they sinned. There’s a transgression against God, they rebelled against God. And what they do is, instead of looking within and taking some responsibility for that. Saying, “We should repent, please forgive me.” It’s not what they do. What they do is they say, “Well, the serpent made me do it.” Or, my favorite line in Genesis, “The woman you gave me.”

Brian Smith:

“The woman you gave me made me do it.”

Joshua Mitchell:

Hilarious. God does have a sense of humor. So the way this plays out now, to bring us back to the issue of suffering. We’re all Adam and Eve, by which I mean, not simply that we suffer from original sin, but that our response to that thing that is original, and always already in us, is to say, “No no, the problem’s not here, it’s out there.” And identity politics is profoundly pernicious, because it does this. So the Christian understanding is that there’s a vertical relationship. We are rebels, transgressors against God. That we are so errant from him, there’s nothing we could do to come back to God. And so God had to send himself. So all human beings, I’ll use identity politics language, are guilty of irredeemable stain. We’re all irredeemables, we are all irredeemables. And in fact, the only way out for the Christian is a vertical one, where we recognize that Christ is the only innocent victim. There’s none among us who are innocent victims. And he is the scapegoat who takes away the sins of the world. Well, you’ve seen the three words here. The scapegoat, irredeemable stain, and innocent victim. And what I note in the chapter on religion in Tocqueville in Arabia, written in 2013, is that this understanding has dissipated. This is back in 2013. And then in American Awakening what I said was, I took it a step further and I said, “Well, it didn’t completely disappear. It got moved.” Because if the Genesis story is right, then the most primordial experience that is in all of us, because it’s really the first thing that appears, is the experience of sin, and transgression, and rebellion. Now, none of us are going to admit it. We’re going to say, “Not me, I’m not.” We’re going to do exactly what Adam and Eve did. And identity politics is this. It takes the Christian vertical understanding of staying an innocent victim, and it turns it 90 degrees and makes it a horizontal one. By which I mean, it establishes a moral economy intersectionality. According to which you rank yourself, on a scale from pure to irredeemable. And of course you can innocent signal and hide the stain under the wing of your … remember the Christian reference, “Christ hides our sin under his wing.” Well, you can hide it under the wing of a Black Lives Matter sign in your front yard, or we believe in Ukraine. However noble, rightly understood those things might be, it’s a way to raise your sin score, so to speak. So identity politics is perfectly understandable, because the churches abandoned the idea of the God of judgment. All the churches, Catholic, Protestant, even within Judaism, there were calls by Rabbi Soloveitchik, the original in the 1950s. They’re on YouTube. To return to an understanding of sin. So you had farsighted thinkers, Fulton Sheen, Soloveitchik, Reinhold Niebuhr, as you know.

Brian Smith:

Reinhold Niebuhr, yeah.

Joshua Mitchell:

All of them could see in the mid-20th century, that we had lost the fundamental insight. Which was, man is indicted, and somehow has to get right with God. But what’s happened is, that all the religious institutions have jettisoned that, but it didn’t go away. And it didn’t go away because this experience of guilt is the deepest one in the human heart. And so identity politics comes along and finds a way for us to be Adam and Eve in the Garden. Which is say, to blame someone else, so it’s white privilege. And I find this laughable, because what has to happen in identity politics is, once you purge one scapegoat, once you purge toxic masculinity, once all the men are hooked on pornography and drugs, and the young one are increasingly moving in that direction. They’re disappearing, as they’re supposed to. You need another scapegoat. And it’ll be the Karens, and then it’ll be Black men who believe that the traditional church, and the traditional family matter. And the transgenders are already going after them. So it’s just one scapegoat after another. It’s a deeply pernicious, it’s a Christian heresy, is what I’m actually calling it now. And that’s what we have to call it.

Brian Smith:

Right, that’s a Christian heresy, where you never know. Yeah, you never know. I mean, to sort of pull the analogy in a slightly different direction, you never know, in a stable way, whether you are a Jacobin or a Girondin.

Joshua Mitchell:

Yeah.

Brian Smith:

You never know, because tomorrow’s Jacobins are the next Girondins, and so on and so forth, and it keeps on spinning.

Joshua Mitchell:

Yeah. I tell my students who are quite clear that they understand the moral economy, I say to them, “I notice you’re drinking out of a plastic water bottle. When we discover in 20 years that microplastics are destroying the ecosystem far more than carbon dioxide, do you really want to be judged as a parasite, and as somebody worthy of purging and scapegoating, because you drank water out of a water bottle?” It never ends. You will always be discovered sooner or later. But to come back to what drove this, which was how do you teach this? I think the first thing we have to do, is to propose to our students the question, “How’s that working for you?” I mean, you think that by picking out a group to be purged, then the world would be made pure. Or you think by getting rid of fossil fuels and having a quote, green economy, which there’s no such thing as a green economy. We’re going to poison the atmosphere, and the land and the water in different ways, with rare earth minerals. But I think the way this ends, is that people discover that no matter how much they’ve purged somebody, they wake up the next morning still feeling bad. And I think that’s part of the reason why the left kept keeps moving. So they thought once they could get feminists on equal footing with men, everything would be fine. And yet they woke up and still they found there was guilt. Well then, let’s go to gays and lesbians, and now transgendered. And we’re going to one innocent victim after another, around which they can wrap their hearts, in the hope of attaining purity by supporting them. Eventually this, we discovered that this doesn’t work. And at that point, I think people can listen. So you might remember in The Republic, the boys are quite confident in Book One, that they understand justice, and you have several definitions of justice. And the conversation of The Republic does not get started until Book Two, at which point Lachan says, “Well, I’m just confused. Can you help us, Socrates?” So as long as we’ve got this hermeneutic critique, where people are absolutely self-satisfied with their own answers, there can be no real education. So I think the way you get people to begin to say, to begin realize that there might be something they need to listen to, is you get them to see that what they’re doing isn’t working. Which is the way Plato does this.

Brian Smith:

Yeah. And I think that was exactly my experience in the classroom. And it’s the only route available to us. But there are signs of hope though, in the sense that, you think of the places that actually are generative in our life right now. Churches that have held to an orthodoxy of sin and repentance, and synagogues that have done this are growing, and continue to. And have not had the birth dearth that so much of our society is plagued with at this point. And so there are readouts to where someone who has raised this question, or who has come to the end of themself, can come looking for respite, and an answer that is not just, “Well, who’s next?”

Joshua Mitchell:

Yeah.

Brian Smith:

So I wanted to conclude by bringing you to the Tocqueville in Arabia‘s new preface, and just get your reaction on a quote from you. “The fateful struggle today, is between those who wish for embodiment, and those who wish to flee from it.” Can you say just a bit more about that, and how it relates to the things we’ve been talking about?

Joshua Mitchell:

Well, it’s an ancient struggle within Christianity, which we should not be surprised, is appearing in what purports to be a post-Christian world. And the ancient struggle is between an incarnate view of human life, where the spirit descends into the flesh and suffers. And a Gnostic view, which is one according to which the purpose of the way one finds liberation, is to free oneself from the chains of embodiment. And that kind of Gnosticism today takes the form of cosmopolitanism, transnationalism. And I think it’s driven really by the inability to resolve the crisis of guilt. So every embodied form, every nation, every local community, every family, is impure. The world is broken. And what this means is, we have to find a way to live with it. And one of the difficulties for the modern mind, is that it’s unable to live with stain and impurity. And I say this not only of the left, which wishes to indict America, I think of the 1619 project, by virtus systemic racism. But also of the right. Because the counterargument to the 1619 project was, “No, America is pure.” But the supposition of both groups was that something is worthy, only if it’s pure. And I think that’s not Christian. I think the Christian view is the world is broken, and yet hope triumphs the brokenness. This is an astounding insight. And you can be an Augustinian or Nietzschian, and recognize that this is what gave a vibrancy to Western civilization. That human suffering is not the end of the story. Bob Woodson and I wrote an essay for Martin Luther King Day, which appeared in The Wall Street Journal two years ago. And we said, “Isn’t it interesting that if you look at the history of African American political thought, up until very recently, while it was deeply divided, the underlying supposition was that Black Americans were capable of acting. Whether it meant going back to Africa, or pushing back, or getting involved, Booker T. Washington, there was a universal understanding that human action mattered. What characterizes the Black Lives Matter movement is fatalism. And I think, when you have an inability to understand how one deals with guilt, then, and Nietzsche saw this. Then the burden of guilt builds up more, and more, and more. And because you don’t have the church, the holy house’s mechanisms of repentance, atonement, above all forgiveness and confession of sin. That when you don’t have those available, the only way that you can lift the burden of sin … Well there’s two related. One is to announce, and the other is to forget. And so our young people today who are unable to deal with the guilt they have internally, which then takes the form of a projected external guilt, namely the history, the constant attempt to find deeper and deeper perversions of America in history, this is really a projection outward I think. Ultimately of an internal wrestling match with guilt which can’t be discharged, so they externalize it. And think that, “well, here’s how I gain atonement. We’ll destroy the monuments. We’ll eliminate the family which is guilty of patriarchy. We’ll eliminate the church which is homophobic. And when we do that, then the burden of our guilt is ultimately discharged.” This is not, I mean minimally it’s not a Christian way of understanding the problem. And I will say, and I’ve said this, and people get sort of horrified. Identity politics is not far off. I mean, I don’t want to fully indict it, because what it gets, which conservatives don’t understand, is that there’s a problem of debt here that is deeper than economic debt, the free market types. And deeper than the debt we owe to our fathers, the traditionalists. It’s a spiritual debt that goes right to the core of who we are. And while I think identity politics completely botches it, in terms of how it thinks it ought to think through this matter, it at least understands that there’s a deeper debt than economics and tradition. And of course, those are the twin pillars of conservatism.

So I think I would say of those who are now enthralled by identity politics, come home. You’ve heard my phrase before, Brian. “You’re you’re feasting on crumbs.” Microaggressions, unconscious bias, this is a laughable, cheap imitation of original sin. Because the problem we have isn’t microaggressions toward people of other races. No, no, no. That’s hopelessly superficial. By virtue of human pride, every single morning we get up and we pray that we’re not going to botch things up, in small ways and a big ways. And yet we do, which is why we go back and pray in the evening. So I say it to the identity politics people, you’re not entirely wrong, it’s a Christian heresy. Which means that if you want to be fed, you need to go back to the source. And this is where the churches must intervene. The conservative movement as a political movement, can do nothing to this. Because while, with all due respect to Yoram, who’s a dear friend, I think it is true that the center of gravity of the conservative movement has now shifted from free market types, to traditionalists. From one kind of debt, to the debt we owe our fathers and our countries. I think that’s important, but it still doesn’t answer the identity politics challenge. Which is why every institution in America has been co-opted so quickly in the last few years, by identity politics. Because guilt is the fundamental question, and conservatives have no way to talk about this. So my view is that only the reawakened churches can do this. The churches have to bring back guilt, and transgression, and the god of judgment. And the problem is almost all of them, except for a remnant, a proper theological category here, almost all of them have bought into identity politics, because it is a cheapened Christianity. So we have to have a religious renewal. And then people say, “Well, so are you a Christian Nationalist?” And my answer to this is, we have an established church right now in America. It’s called the Church of Identity Politics. It’s an established church. I do not want an established church. My view is that the only way you can return to a politics of competence in America, is if we have a way of solving the problem of staying toxicity, and the crisis of the innocent victim. You have to have a way of solving the scapegoat problem. Because as the last few years have demonstrated, you’re not going to turn to competence, until you can solve the scapegoat problem. The reason why America was a successful liberal enterprise, was because it had solved the scapegoat problem through the churches, and largely through the Protestant churches. And when the scapegoat problem, when we no longer can solve the problem of the scapegoat in the churches, then we will no longer have a republic committed to competence. And this is, I’ve said this, I’ve hinted at this, now I’m saying it boldly. That the reason why the politics of competence works, is that you have solved the problem of the scapegoat, prior to, and outside of the realm of politics. And Tocqueville in a way saw this. He said, “The moral imagination was bound, so that political freedom could work its way.” Now, he didn’t quite put it in terms of the scapegoat. I am putting it in terms of the scapegoat. And so the precondition for liberal tolerance, and for liberal competence, is having solved the problem of the scapegoat, through the churches. Because if not, we’re not going to look at each other as compatriots in the project of building a competent world together. We’re going to look at each other as possible, electric lightning rods, for the problem of scapegoat, and there’ll be no confidence.

Brian Smith:

And with that, I think we should conclude. Thank you for that tremendous challenge for us. I mean, it highlights, I think the work that anyone who cares about liberty needs to undertake, in their communities, their lives, and anything they do with the public. If you want to know more about Josh Mitchell’s writings, you can reference many of them, which I’ve linked above, on Law & Liberty. His books, American Awakening most recently, and Tocqueville in Arabia, are both available from Encounter Books, anywhere books are sold. And thanks for being on the show.

Joshua Mitchell:

My pleasure, Brian. Good to be with you.

Brian Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

The View from Israel Mar 21, 2023

Matti Friedman joins host Rebecca Burgess to discuss Israeli culture and identity, immigration trends, religious and linguistic divisions, and his latest book, Who by Fire.

Rebecca Burgess:

Welcome to Liberty Law Talk. My name is Rebecca Burgess. I’m a contributing editor with Law & Liberty, and joining me today is Canadian Israeli journalist Matti Friedman. His work graces the pages of The New York Times, The Atlantic, Tablet, Mosaic, several other organizations. He’s also a prolific author of a rich diversity of topics and books from everything about spies to the Dead Sea Scrolls to, most recently, Leonard Cohen’s concert tour to the front lines during the Yom Kippur War. That’s Who by Fire. And I’m sure, Matti, you had a lot of fun listening to a lot of music while you were writing that book.

Matti Friedman:

I sure did, although Leonard Cohen’s music, if you know it, can be a bit of a downer. So if you listen to five hours straight of Cohen, it doesn’t mean that your mood is going to be great necessarily. But I did have a good time.

Rebecca Burgess:

Wonderful. Well thank you so much for joining us today, coming from Israel.

Matti Friedman:

It’s a real pleasure to be here.

Rebecca Burgess:

Great. So Israel is frequently in the news for about three things: Gaza, violence, and rocket barrages. Most recently, of course, it’s been in the news for questions about its judiciary and its politics, in particular its election travails: five elections in four years, and at the end of it we have Netanyahu back in power. But I’m hoping that today we can talk about something that you focus on in your longer-form essays, which is the social, cultural, and demographic change of Israel that helps us understand what is actually going on in the country as a country beyond or above those headlines. And most recently you had a wonderful essay in which you noticed that there are many French in Jerusalem now and that there is a almost war of baguette shops. So what are the French restaurant wars in Jerusalem? Tell us about what’s happening in terms of the population shifts.

Matti Friedman:

It’s rare when you can see a social shift manifest itself physically just in store signs when you walk down the street. But over the past couple of years in my neighborhood and elsewhere in Jerusalem, you just can’t avoid realizing that there are more and more French people in Jerusalem. You can go to a bakery downtown called Gagou de Paris, and if you don’t like their croissants you can go across the street to another one called L’Artisan. And there are other options these days in Jerusalem. French is just one of the languages you hear. And there are other cities in Israel where it’s even more prevalent, particularly one called Netanya, which is a city on the coast with a particularly large French population. So clearly something is going on in France.

One of the interesting things about Israel is that it ends up being a barometer for the situation of Jews in other countries. So we’ve had an influx of people from Ukraine and Russia recently. So even if you knew nothing about the war in Ukraine or what was going on in Russia, just by looking at the new arrivals around my neighborhood you would understand that something is clearly going on there because we’re hearing more and more Russian and Ukrainian in the street. And in the case of the French, it’s not a wave of immigration exactly. It’s not millions of people moving, but tens of thousands have moved in the past decade and more than 100,000 Jews have come from France to Israel since the early seventies, and about half of them have come in the past decade. So clearly there’s something going on. People are being drawn to Israel, people are feeling a bit uncomfortable at home in France, and that’s manifesting itself in the superior quality of our pastries here in Jerusalem and elsewhere.

Rebecca Burgess:

Is it, do you think, related at all to some of the violence that has been perpetuated against Jews in France? So there were of course several famous [incidents], the Bataclan Theater, Charlie Hebdo and others, and it would seem natural if in the wake of those types of violent occurrences in France that there would be a sudden influx in Israel. Is it that that’s driving it, or is there this other, and it’s almost a third rail I know to talk about when you’re talking about France, but the influx of Arab immigration within France, which seems to be driving others out of France.

Matti Friedman:

So there are pull factors and push factors as in any immigration wave. So the pull factor is the draw of the Jewish state, which for a certain number of Jews in every country is enough of a pull without any push factor: the desire to live in a place where your culture is the culture of the majority. And for some people it’s a religious impulse to return to the land of Israel, which some interpret as a biblical commandment. So that’s going on. But of course there are also push factors, and the violence that you mentioned is certainly one of the push factors. And you can see that after spectacular instances of violence against Jews, and unfortunately there have been several, there’s a spike of immigration. So there was a big one after the murder of a young Jewish guy, he was 23, named Ilan Halimi in 2006, and he was murdered by a group of Muslim French citizens.

They called themselves the Gang of Barbarians, and they kidnapped him and then tortured him to death. Immigration went up after that and then kind of subsided. And then there was an attack on the Jewish school in Toulouse in 2012. Another French Muslim murdered a few kids. And that was also a shock to the community, and there was another wave of immigration. So yes, there’s something going on in France. There’s something kind of bubbling under the surface and the Jews are feeling it, and that is triggering immigration. Although, again, it’s not like all the Jews in France are leaving in panic, but that is driving the numbers up. And every time there’s an instance like that, you see the graph go up and then, if things get quiet again in France, the graph kind of subsides. But the trend is toward increased immigration from France. And part of it is definitely that many Jews in France feel less and less comfortable at home.

Rebecca Burgess:

Is there also that aspect of the secularism in France in which it is a hot point of wearing religious clothing and religious symbolisms in France? And in the public school system this is a huge fight. My sister is in fact a Dominican nun, and it’s a French congregation, and they have, every day almost, to struggle with some of these questions, especially themselves. They’re wearing a habit which doesn’t look that unlike how some Middle Eastern women cover themselves. Is it some of the more orthodox or observant Jews who are tending to go to Israel from France, or does that seem to be not really part of the equation?

Matti Friedman:

I think it is part of the equation. I’d actually love to hear more about your sister. That sounds fascinating. Often Americans have a bit of trouble understanding the French system, which is different than the system in the United States. In America, there’s separation of church and state and you’re allowed to do whatever you want. In France, the culture is kind of aggressively secular or at least the official culture. And they have an idea called laïcité which basically is a kind of antagonism toward expressions of religious observance in the public sphere or open expressions of religious observance. And that could cause problems for a Muslim woman who wants to cover her hair with a hijab, or a Jewish man who wants to wear a kippah, or even openly displayed crosses in some cases. Many French people interpret that as a violation of laïcité, the idea that the public’s sphere must be secular.

For observant Jews that can be a problem. And I spoke to one young French woman who’s actually now in Israel, who’s interviewed in this story that we’re talking about, which came out in Tablet, who remembers that in her childhood they served kosher food at public school. And then that was considered to be a violation of laïcité, so you can no longer get kosher food at the public schools. They used to give Jewish students exemptions or postponements of exams if the exams fell on Jewish holidays, and now that’s also a bit tense because that’s also considered to be special pleading if you ask to have your exam administered on a different day.

So that makes life a bit fraught for people of religious observance, not just Jews but for everyone. And certainly Jews do feel it. And if you look at the profile of the average immigrant to Israel in the past decade, you’ll see that it tends to be people who are traditional in their observance. It tends to be people who are of North African descent. So there’s a huge Jewish population in North Africa up to the forties and fifties, mainly in Morocco, Algeria and Tunisia. And after the independence movements in these countries succeed and the French colonists are kicked out, the Jewish population either moves to Israel or goes to France.

So most of the Jews in France are actually not the original French Jewish population, which was European in origin, but North African in origin. And it’s those Jews who tend to be moving to Israel. So they often find Israel quite familiar, I think in many ways because they’re coming two or three generations back from Mediterranean Jewish societies in places like Morocco and Tunisia and then ending up in Israel, which is also a Mediterranean Jewish society. So the social leap for many of these people is not as dramatic and difficult as it would be for an American Jew moving to Israel, for example.

Rebecca Burgess:

I think I was reading that about a third are single young people coming, and a third are about young families, and then a third are retirees. So it almost makes me think about, and I know this is really probably not the best analogy, but in the States right now, we’re seeing a lot of people leave from blue states and go towards red states where they feel that they are more free or less hampered in types of schooling choices and other ways of living. I don’t know if that’s in any way similar, but that tradition of going where you feel more welcome and feel like you have some roots and some familiarity with a system.

Matti Friedman:

No, it’s an interesting analogy and definitely people want to feel at home. And part of being a minority and part of being Jewish is always a sense that you’re not quite at home, that you’re dependent on the acceptance of others, that you need to play an identity game where you’re open to the mainstream and capable of playing ball with the mainstream, but also maintaining your own personal traditions and keeping your own identity, which makes you different from the mainstream and which the mainstream, in some cases, does not like and is hostile to. So for many people, going to Israel is a way of solving that problem. It creates numerous other problems, as I found having moved to Israel myself, of course, from Canada when I was 17. So it doesn’t make your life problem-free, but it does replace that problem of being a minority. It replaces that problem with other problems. And yes, I think people want to feel at home and they would like to be surrounded by people who, they might not be exactly like them, but who are at least open and welcoming to who they are.

Rebecca Burgess:

Have their croissants.

Matti Friedman:

And also they can move to Israel without any compromise on the quality of the baguettes. Although I guess I shouldn’t say that in their name. They might think that the Israeli baguettes are not quite up to par. But definitely these days you can get excellent food in Israel. It certainly wasn’t the case when I moved here in 1995. I don’t think it was really even the case 10 years ago, but definitely the French have brought many good things and cuisine is one of them.

Rebecca Burgess:

The summer when I was there on a national security trip, sponsored by Foundation for Defense of Democracies, where I met you, I had that privilege, I was rather blown away by the wonderful extent of Israeli cuisine. And thinking about adding French on top of that, I thought that’s just not fair.

Matti Friedman:

We have the best food in the world, in my opinion. And I’ve been around the Israeli cuisine. Because it’s made up of so many different groups that have come over many, many years, it is spectacular.

Rebecca Burgess:

So it seemed like you started noticing the French immigration wave to Israel through the proliferation almost of the restaurants, the French restaurants. But also I thought that your observation about the bookstores was interesting, that some of these French bookstores, they’re not what you might think they are, they’re not all super orthodox or religious in content. Many of them are just simply French bookstores, which kind of show that shift towards those who are moving to Israel. It’s not necessarily a religious only question, but maybe more broadly cultural.

The North Africa element reminded me that several years ago you had this very fascinating article in which you asked whether Israel is eastern or whether it’s European, meaning is it Middle Eastern or is it western? And in the West, in America, we tend to tell the Israel story as though it is a byproduct of the West only. But that in fact, if you look at the population, the current population of Israel, it’s very much a Middle Eastern story. And that to me was the first time, in reading your articles, that I had ever thought about that and what that might mean and the differences. And that article, I think you’d called it Mizrahi Nation, where you invited us to think about all the different ramifications of Israel being a Middle Eastern state and country, population.

Matti Friedman:

So I think that is the key to understanding Israel. And I, like many other people who grew up in North American Jewish communities, always learned about a very European country with Herzl, and the kibbutz, and the Holocaust, and the Jews from the Middle East were very much on the margins of what I knew about Israel. But if you look at the Israeli Jewish population, we have a one-fifth Arab Muslim minority. So if we just set them aside for a second and look at that 80% Jewish majority, at least half of the Jews in Israel do not come from Europe. They come from the Islamic world, they come from places like Morocco, they come from Syria, they come from Yemen, Kurdistan, Iran. And you can’t understand the country without understanding that.

And even the Jews who came here from Eastern Europe, over three or four generations in Israel they’ve been Middle Easternized. And that expresses itself in the cuisine and expresses itself in the kind of music people listen to. And it expresses itself in our politics, which are incomprehensible without understanding the ethnic origins of Israeli voters, because often issues that we describe or arguments that we describe as being about policies are actually about identity. And that often has to do with whether your family came from the Christian world or from the Muslim world. So this is all very important to an understanding of the country, and yet it remains kind of marginal. People don’t really think about it, they don’t think it’s central, but it is the central fact of Israel.

I wrote a book trying to explain it, which is a book called Spies of No Country, which ostensibly is a book about Israel’s first spies, the guys who created the Mossad in many ways. But Israel’s first spies were the only people in the country who could walk across the street into the Arab world and disappear, and those people were Jews who’d come from the Arab world. A year or two before they were natives of the Arab world, they were native Arabic speakers. And if we understand that at least half of the Jews in Israel are the children or grandchildren of those people, then we understand something really important about the country that is otherwise missed.

Rebecca Burgess:

Is that reflected in any of the public education, in terms of the languages that students are being encouraged to learn?

Matti Friedman:

I wish I could say yes, because it would be amazing if Israeli kids could actually speak Arabic, not only to interact with our Arab surroundings. There are 6 million Jews here and 300 million people in the Arab world. So it would be nice to have more people speaking fluent Arabic, but also Arabic is a Jewish language. Jews always spoke Arabic, and there are great works of Jewish thought that were written in Arabic. A good example is the philosophical writings of Moses Maimonides, who’s an incredibly important philosopher from Cairo about a thousand years ago. His philosophical words are written in Arabic. So Arabic is really a Jewish language and many of the people who came to Israel after the state was founded spoke Arabic. That was their language.

But what happened was that there was a real attempt to create an Israeli identity in which people spoke Hebrew. And for that to happen, the diaspora languages had to be killed basically. And that meant no Yiddish and no Polish and no Russian, and it definitely meant no Arabic. So within one generation the Arabic speakers were gone and their kids were Israelis, which was a success for the Zionist movement but a loss, maybe, for the culture of this country. Definitely a loss for the intelligence services who could really use native Arabic speakers, but that’s what happened. The linguistic treasures that came here in the first years of the state, where you had all these people speaking Persian and speaking Kurdish and speaking 80 different languages or whatever it was, that was really eliminated by this drive to create an Israeli population. And that has its upsides, of course. We all speak the same language and that’s good, but a lot was lost. I wish we could recover some of it, but it’s hard two or three generations later to get any of it back.

Rebecca Burgess:

It’s kind of a longer unformed question, though, about language and how language creates a national identity. At the beginning, when you are so small and you’re starting out, it makes sense to tamper down on one common language, if you will. But, seven decades later, is it possible to loosen up a little bit, or is it the case that because the pressures from outside have only multiplied in that time? I don’t think anyone would say that the pressures surrounding Israel have lessened. Has it entrenched the idea of having this one language to help the cultural identity have a type of centrality to it, and that’s what will continue through the next decades?

Matti Friedman:

Yes. This society is so fractured and kind of at odds with itself that it certainly helps to have one language. And if you look at the country 50 or 60 years ago, many of the ultra-orthodox Israelis wouldn’t speak Hebrew. And many of the people were immigrants, even the leaders of the country were immigrants, and they spoke kind of immigrant Hebrew, very heavily accented. And the fact that most people in the country today, including our Arab citizens, speak Hebrew very well is definitely good for communication. Interestingly, it doesn’t seem to make us more unified or well-disposed to each other. So it does raise a question of whether a common language is actually helpful or not. But retrieving those old languages that were lost with our grandparents or great-grandparents is very difficult.

So there are attempts to bring back Arabic, and people are much more interested in the culture of the Jews of the Middle East and in the music, and there are attempts to revive it. And people are more interested in Yiddish. And people are more open to the experience of the diaspora, which was really radioactive in the early years of the state. One, Israelis were supposed to hate the diaspora and forget about it and be ashamed of it and never mention it. That has really passed. So people are interested in their roots. You can’t just wake up one morning speaking Arabic. And we’re not our grandparents. We might like our grandparents’ culture, but this generation is Israeli. And the search for different cultures or for different cultural roots, that search is Israeli. It’s not quite the same thing as being from Morocco or being from Poland.

Rebecca Burgess:

Well that’s interesting, because I would say in America today… And not to make everything a comparison with America, but America is what I know. When we talk about the current generation, one of the questions that comes up a lot is a sense of rootlessness amongst the current population and whether that drives some of this whole culture of depths of despair, the depression, some of these more medical-driven problems, you could say, of our society, and whether that’s rooted in questions about us losing our sense of identity or our central identity. I’m just wondering in Israel how younger generations feel or if, as you mentioned, they’re being Middle Easternized, that’s giving them a different type of rootedness instead of rootlessness and they’re kind of making it their own thing. And I know that you also recently wrote about a pop star. And I was a little intrigued by this. Is it a pop star? Is he Palestinian? He was the most popular in Israel.

Matti Friedman:

Do you mean Nasrin, the article I wrote for The New York Times?

Rebecca Burgess:

Yes.

Matti Friedman:

So I like to look at our cultural questions by looking at music, rather than looking at heavy things like academic research or anthropological study. So the dominant pop form in Israel is a kind of music called Mizrahi, which literally means eastern. And what it is is Middle Eastern pop music sung in Hebrew, often with Greek influences and western influences. But that is really the most popular pop genre in Israel, which is kind of proof that the country is basically a Middle Eastern country. So I thought an interesting window into all of this would be one pop star whose name is Nasrin Kadri. This was two or three years ago when I wrote the story. She was really the hottest name in the Mizrahi pop scene, and she’s really a diva. She’s got a phenomenal voice, and she happens to be a Muslim woman from Haifa who converted to Judaism which is very, very, very rare.

But it was a great way of looking at this mix of western and eastern and the Middle Eastern style in Judaism. So Nasrin is originally Muslim, but her fans are Jews, many of them of Middle Eastern background themselves. So she’s kind of an Arab diva for Jews affiliated with the Arab world. But she sings in Hebrew most of the time, although she also sings in Arabic. And all of that is just so interesting and confusing to anyone who wants to see this as a European country. So I thought a profile of Nasrin as kind of a pop goddess of the moment would be a fun way into one of the most important cultural questions here, which is: what kind of country is this? And if we’re a Middle Eastern country, what does that mean? So that’s what I was trying to do with that story. And there I really did enjoy listening to the music, and I got to hang out with Nasrin and then go to a concert. And I had a great time doing that one.

Rebecca Burgess:

Hopefully you had great seats, too.

Matti Friedman:

I did. I had excellent press seats close to the bottom. I could almost reach out and touch her knee-high glittery boots.

Rebecca Burgess:

That’s so not the image that we have of Israel today. So the contrast, it’s good for the senses to wake us up, like spicy food makes us reevaluate our assumptions.

Matti Friedman:

There was a bit of Beyonce in the concert and there was, of course, some Arabic and there was one point in the concert where she was posing against these screens which had satanic flames on them. And there were two guitarists on either side of her, and they were wailing like Slash from Guns and Roses. So there was just a lot going on at that concert, culturally.

Rebecca Burgess:

A lot of imagery.

Matti Friedman:

A lot of imagery. There was nothing about it that was purist. It wasn’t meant to be like pure Middle Eastern music or anything like that. It was totally commercial and very crass, and totally fun.

Rebecca Burgess:

So also looking at pop culture, you’ve noticed that there’s been an influx from China within the cultural moment. And I’m talking here about Chinese, and I’ll say his name wrong, Itzik. Is it the Chinese Itzik? This incredibly popular YouTuber who sells China, almost, to Israel. And I found this quite fascinating. One, how did you come across this? Is it just because it’s so prevalent? And the story that you found of China’s influence operations, if you will, within Israel through this one lens of this YouTube star?

Matti Friedman:

So I’m always looking for an interesting way of telling an important story. So Itzik, or Chinese Itzik as he’s known here, seems to be a good way of doing it. He’s a YouTube personality who works for a Chinese government media operation and he speaks phenomenal Hebrew, just almost native Hebrew. And he’s an incredibly smart and charming guy. So he does videos from Israel about being a Chinese person in Israel, and he also does videos from China explaining China to Israelis. But that’s his job, presenting a good face of China to Israel and serving as a cultural communicator between Israel and China, or the Chinese government. And I got to speak to him, and he’s a fascinating character. And he really gets Israel in a very interesting way. And he’s spent time here, and he’s picked up the language in a very remarkable way.

The article looks at him as a way of trying to understand what China’s up to in Israel, because of course the Chinese are on the move across the Middle East. They’re building installations. They’re taking infrastructure projects. They’re very much in evidence here in infrastructure. They’re building a big part of our new light rail system in Tel Aviv. A Chinese company now owns our biggest dairy products company, which is called Tnuva. A very important tunnel project a couple of years ago under Mount Carmel was handled by the Chinese. And they’re building us a hydro plant, at least one. But the biggest Chinese installation, or the most important one that has opened in recent years, is a port.

Israel has always had two ports, one in the city of Haifa and one in the city of Ashdod. And because the country’s grown and because the economy has boomed, those ports are insufficient and we needed another port. And a Chinese company won the tender for the port. And it’s the company that operates the port in Shanghai, which is called SIPG. So they won the contract and built an absolutely beautiful port that I got to visit. It’s a kind of shining, brand-new port open last year. These red cranes with huge Chinese letters on them, and you go into the command room and the workers are Israelis actually, but the executives are Chinese, and they’re running Chinese software, and the whole operation is Chinese. And it’s really, really striking because you can read all you want about the expansion of Chinese influence, but when you’re standing in a Chinese port facility in Israel and the corner offices are populated by Chinese executives, you realize that something’s going on.

Things are really changing. And the calculus of economic interest, and maybe even security interest, in the Middle East is shifting as the Chinese make themselves felt more and more and as the American presence seems to fade. So that article, which was also for Tablet, looks at those two elements: the port, and Chinese Itzik. That’s really what he calls himself, Chinese Itzik, Itzik HaSini in Hebrew. His real name is Xi Xiaoqi, and he’s from Beijing. That’s what I tried to do with that story, to try to take something really complicated and make it as simple as possible and a bit entertaining.

Rebecca Burgess:

So this summer I remember standing at the old Haifa port and looking across and being told about this new Chinese one and thinking, from the national security standpoint, the American Sixth Fleet gets refueled right there, right across from the Chinese. And of course, in America we have a heightened security sense around China. But it did have that sense. And it did make me wonder a lot about how regular Israelis feel about the increasing presence of Chinese industry, Chinese companies within their country operating what I would call sensitive infrastructure. We also went to Tel Aviv. That has been my first time in Israel, and it suddenly struck me that, oh, Israel is also a Mediterranean country. It’s right there on the Mediterranean, and I hadn’t really thought about Israel being a Mediterranean country.

And later on I was in Trieste, which the Chinese are also heavily influential in. That was the historic port of the Austria-Hungarian empire. It’s still very, very important to Italy, and the Chinese are there and in presence everywhere around the city in very tangible ways because that’s something that they’re supposedly using for their Belt and Road Initiative into Europe. And it drew together kind of that sense, I don’t want to say of foreboding necessarily. I didn’t necessarily have foreboding in Haifa this summer, but it felt unnerving the extent of seeing that in person. And I thought if I was a citizen living here, would I not notice it just because it’s something that happens over time or would I notice it and worry about it? And whether you had insight into how kind of everyday Israelis feel about that?

Matti Friedman:

So Israelis have always had many enemies, of course. And we’ve fought wars, unfortunately, against many states in the Arab world. And our most potent enemy at the moment is Iran, of course. And a country that has never been a problem for us is China. They’ve never been an enemy. So Israelis are not worried about them. And you can look at polling information which shows that Israelis are, for the most part, just not concerned about China. They don’t see China as a competitor, they don’t see China as a threat. They understand that the Chinese antagonize the Americans. And there’ve been two big defense deals that have been torpedoed by American protest because America was unhappy about Israel selling certain things to the Chinese, quite rightly. And so there’s an understanding that that’s sensitive, but there’s no kind of gut suspicion of the Chinese or feeling that we need to be worried about this.

And I’m not saying that that’s necessarily true. I’m just saying that Israelis have always had a sense of who their enemies are, and the Chinese seem to be making really good offers on infrastructure contracts. And they come in on time, and they come in below budget and great as far as Israelis are concerned. And we also tend to play a very short-term game. There’s very little long-term planning here. So if you have a port that needs to be built and the port company from Shanghai comes in and gives you a good deal, you’ll take it. And you might not necessarily think about what that’s going to look like 30 years down the road, 50 years down the road. We put out fires. That’s the Israeli way of doing things. And there’s very little long-term thinking, not like the Chinese, of course, who have very careful long-term imperial considerations.

So that’s also a difference between the Chinese and the Americans. When I was at the port, the obvious question is what… The Sixth Fleet is across the bay, I think. I don’t know, it’s less than a mile. And they said, “Well, what do you want from us?” When the tender was open for the port, because it was a public contract. It was open to any bidders. The number of American companies who bid was zero. No American companies bid on the contract. And so the Chinese got the contract. And that’s also something that’s going on. The Americans just aren’t there. The Chinese are hustling. They’re making good deals, both because they’re out to make some money and because they’re considerations are imperial as well as the profit motive. So an American company looking at a project like the Haifa port would’ve to say, “Okay, am I going to make my investment back within 20, 30 years?” And there would be all kinds of graphs showing yes, no.

The Chinese have other considerations. So they want to make their investment back, of course, but they’re playing a much bigger game. And that game is visible in Trieste, and it’s visible in Greece, and it’s visible across Africa, and it’s visible in Iran, and now it’s visible in Haifa. And the considerations are imperial considerations, ones that would’ve been familiar to the British a hundred years ago, which unfortunately are not that familiar to Americans, I think, who are also playing a shorter game than the Chinese are in Israel. Israel’s a very small player. We’re kind of caught between the two big powers. Of course, we have our affinity with the United States. There’s no cultural affinity to China. There’s no attempt by China to export Chinese culture to Israel. So Israelis are consumers of American culture, and everyone watches Netflix and loves the NBA. And there’s no danger of Chinese competition in that regard, but things are definitely changing.

Rebecca Burgess:

Yes, Americans do have not just shorter attention spans, but I would say our reaction isn’t necessarily ‘put out a fire’ as in ‘put a bandaid over it for now and move on and leave it for someone else to deal with down the road,’ which is a very unfortunate and very disastrous tendency, I think. But slightly along those lines, in our remaining minutes, I was wondering if… It reminded me of the larger framework of the whole Israeli and media discussion and how you in particular have drawn our attention in the West to how, and in America, how we get it wrong so often because we impose a framework that simply isn’t there for Israel.

So we tend to see everything happening within Israel, not only, as we mentioned earlier, from this very western, it’s a byproduct of the West and Europe, but also in America from a very kind of race and equality type of a discussion when in fact that’s not what it is, and how that kind of blinds us or hinders us from understanding what actually is in play within the state. And maybe that’s a little pivot for you to remind us again of why that just simply isn’t true, and especially in terms of this increasing Middle Easternization as you were mentioning, how that maybe is the key to tell us or remind Americans why it is not about this race and equality narrative.

Matti Friedman:

I think Americans often see things through an American lens, which I guess makes sense. And there’s a tendency to take American problems and then view other countries through the lens of those problems. And I understand why race is the demon that stalks the United States, and that’s clear to anyone who’s lived in the United States as I have very briefly, and anyone who knows anything about American history. But the problems here are different. I’m not even saying they’re necessarily better, but they’re completely different. The Jewish problem was never a problem of color. So my grandmother’s family, she had a bunch of brothers and sisters and her parents, they were all shot in the forest outside this village where they lived in Poland by people who looked exactly like them. There was no color difference between them. It wasn’t about color, it was about some other kind of difference.

And Jews had these incredible problems living in societies where they were a minority, and ended up in Israel. And now there’s an attempt to portray Jews in Israel as a kind of stand-in for white Americans or stand-in for maybe European colonialists. There’s a lot of guilt bouncing around the West and a lot of desire for stories that can help channel that guilt. And Israel is used, in many different ways, as a blank screen onto which to project characteristics that people don’t like. So you’ll see it described as a colonialist power, or racist, or militarist, or nationalist, and mostly it’s projection. It’s not that we don’t suffer from those problems necessarily, but mainly it’s projection. The Jewish population here is about 6 million people, and we live in the midst of the Arab world which is 300 million people, and in the midst of the Islamic world, which is one and a half billion people, maybe 2 billion. There’s some argument about the numbers.

So Israelis don’t feel like an empowered majority. They’re not analogous to white Americans. Palestinians are minority among Israelis of course, but they’re part of the regional majority that outnumbers Jews by a very wide margin. So one of the tragic aspects of this conflict is that both the Palestinians and the Israelis feel like an embattled minority, and both are right. There’s a lot of truth to those claims on both sides. It’s impossible to understand that dynamic if you’re just projecting the American sentiments or American problems. And there are American politicians who’ve begun doing this. And we heard people say in Congress things like, “What they’re doing to us in Palestine is what they’re doing to us in Ferguson,” in an attempt to really draw that line between Black Americans and Palestinians, who have nothing to do with each other.

The predicament is completely different, and it’s better to understand another country completely on its own terms rather than to bring in a lot of American baggage and then reach the wrong conclusions about what the solution might be. Because if you’re imagining that the solution here is civil rights struggle along the lines of Martin Luther King, you just will not be able to solve any of the actual problems that exist. So I think Americans sometimes get into trouble with things like that. And they’ve walked into some trouble in Iraq by making some incorrect assumptions about who Iraqis were, and what they wanted, and how similar Iraq was or could be to the United States. There’s a sense that Iraq was kind of an America in waiting if only it could be free to be America. And the cost of that error was extremely high, and you know more about that than I do. An earlier mistake was in Vietnam, kind of a similar assumption. So it is a problem that America seem to run into a lot, and it’s one that’s best avoided.

Rebecca Burgess:

Well, you’re mentioning some wars and conflicts, so I almost have to end on this note, but before I end on the note about conflict and war and veterans, since you had mentioned Maimonides earlier, as a student of political theory myself, with Maimonides and Al-Farabi, their western counterparts, Aristotle, Aquinas, the hardest thing it seems is to actually know what is, versus what you think you are seeing and describing and getting from opinion to knowledge is… Well, I know what you’re doing every day in journalism, but also what we are hoping to do on this podcast is uncover the things that we think we know and show all the rich complexity underneath it.

And part of that complexity, going back to war and conflict and knowing your enemy, but knowing who you are, is Israel is this fascinating culture, or nation now, of veterans. And since I study veterans, I’m often looking for the clues between how a society understands citizenship in itself and leadership and statesmanship in terms of what risk they have done for their country. And I often wonder if that does color their politics, and their political discourse, and their political understanding of themselves and their role in the world, or if that just doesn’t color it because it’s more common, if that makes sense.

Matti Friedman:

I think that the mandatory military service here does have an effect on the way people think. I think you’re less likely to embark on a military adventure if you are likely to be affected by it very personally. And of course, I served in the military. I’ve got two boys who are almost 16, and they’ll be serving in the military within a few years. It does change the way you think about what the army is. You know the military a lot better than most Americans do, so you’re much less likely to buy the kind of bullshit that the military likes to sell civilians. And you can really see that in our parliament, where I think it’s much easier to bullshit American politicians than Israeli politicians just because people have been in the army and they kind of have a realistic sense of what is and what isn’t possible and what the needs are or are not.

And that’s all very important, but the numbers serving here have gone down percentage-wise. So the numbers are still over 50%, but a lot of Israelis don’t serve. The ultra-orthodox, for example, don’t serve. Arab Israelis don’t serve. Many mainstream Israelis get out of it in different ways. And so the society’s changing. It’s becoming a more individualistic society, less that highly-mobilized, socialist society that we might remember 30 or 40 years ago. The place is changing. The military is still very powerful and it’s still, I think, our most trusted institution. I haven’t checked the polls recently, but I do believe that is the case. And it is a kind of unifying institution, but in this day and age, as you know it’s true in Israel and it’s true in the States, the idea of unifying institutions is very much under fire and everything is becoming divisive and binary.

And it raises real questions about how we’re supposed to live in a democracy if you can’t agree on the institutions, if you don’t agree who won the election, if you don’t agree about the judiciary, if you don’t agree about the military, about the people making decisions about the life and death of your children. So it’s a fraught moment here in that regard. That’s really what people are arguing about in Israel. There are protestors out on the street mainly because of this idea that the institutions are threatened, that the institutions are threatened by our fellow citizens who seem to be a threat to us, and we seem to be a threat to them. And it’s this strange, dark social media moment that’s raising real questions, I think, about how we’re supposed to maintain democracy and democratic institutions. And I know we’re all dealing with that, not just us here in Israel.

Rebecca Burgess:

Right. Well, to not end on a depressed, dark note has been a wonderful conversation. Thank you. I know we could have gone so much further into each one of the topics, but on a lighter note, to end, I was wondering if you could share with us maybe one of your favorite stories or anecdotes from the research you did for your latest book, Who by Fire: Leonard Cohen. And this is a beautiful wrap up moment, right? We were just talking about war, we talked about music earlier and culture and how these things kind of show us what’s actually going on, illuminates more difficult political kind of questions. So you wrote this book about Leonard Cohen going to the front lines in the Yom Kippur War and his music there, and you got special access, I’m pretty sure, if I remember right, to some of his notes, or a diary, or a manuscript that he had written. Was there one moment or little anecdote that stuck in your head as just either lovely, precious, or just hilarious?

Matti Friedman:

There were so many. I had such a great time researching the book, not only diving into the Cohen material. Cohen is, of course, this great kind of poetic, bohemian figure from the sixties who shows up here and gives one of the weirdest and maybe greatest concert tours of all time. And I got to meet these, I think of them as soldiers even though now they’re in their seventies and they’re all grandparents, some are men and some are women, people who encountered Leonard Cohen in Sinai in the middle of this war.

And I remember meeting one woman whose name was Orley, who remembered that Cohen showed up at their base. This was a base at the very tip of Sinai, and these very young women had just been through a horrific experience where their radar station was rocketed by the Egyptians and five of their friends had been killed. And they’d just gone through this, and then suddenly Leonard Cohen was at the base and someone told her that he needed a place to sleep. He needed a bed. And Orley, who loved Leonard Cohen, very quickly volunteered her bed and showed Leonard Cohen into the barracks and kind of put him in her bed and still remembered it. And she was so touched by it. And she said, “I wasn’t in the bed with him, but he slept in my bed.” And this still meant something to her, all these years later. It was something that they shared, and it was a very human moment amidst kind of inhuman events in the Yom Kippur War of 1973.

Rebecca Burgess:

The little human moments that actually keep things going. Thank you so much for sharing that, and thanks for your time. Again, that was Matti Friedman, journalist, and author. And I’m Rebecca Burgess, and this is Liberty Law Talk. Thanks so much for listening.

Inventing American Constitutionalism Mar 10, 2023

Brian Smith:

Welcome to Liberty Law Talk. My name is Brian Smith. I am the editor of Law and Liberty. With me today, I am very pleased to have Gordon Wood, who is the Alva O. Way University professor, and professor of History Emeritus at Brown University. The author of 10 books, including most recently, Power and Liberty: Constitutionalism in the American Revolution. He is the recipient of numerous awards, including the Pulitzer and Bancroft Prizes, as well as the National Humanities Medal. Gordon, thank you for joining me.

Gordon Wood:

My pleasure.

Brian Smith:

So, I wanted to have you on the podcast today, specifically to talk about Power and Liberty, which as I understand it began as a lecture you gave at Northwestern’s Law School. So, I wanted to ask, how did the themes of that lecture inspire the book? And what was your aim in writing it?

Gordon Wood:

Actually, it was a series of lectures, a half dozen lectures that I gave at a school, I think, in the fall of 2019. And as we got into the COVID period, I had these lectures, and I thought maybe I should try to publish them. And so, that’s what led to the publication. I hadn’t really thought about that when I was giving the lectures, but it worked out nicely.

Brian Smith:

So, what was your goal in presenting a condensed version of your entire sweep of scholarship about constitutionalism? What were the key things that you thought needed recapitulation right now, that you were aiming to give your audience?

Gordon Wood:

Well, although the lectures pretty much summed up my thinking over the past half century on the constitutional issues, I hadn’t actually put them into this form, in print, at least. So, I thought that this was a good way of conveying my thinking, starting with the imperial crisis, going on to the constitution making at the state level, which is what they aim for. The United States, literally was 13 states at the outset in 1776, and each of those states wrote its own constitution.

And then, having to explain the origins of the federal constitution, which [inaudible 00:02:39] granted, but they certainly hadn’t anticipated. I ended with the issue of private versus public, which helps explain the beginnings of the corporation. And then, I had a final epilogue on Rhode Island, my own home state, which suggested the middle class world that emerged following the revolution. So, all of that fit together, and it was what I wanted to say coming up my career.

Brian Smith:

So, I really specifically wanted to ask you about Rhode Island. It was a very striking epilogue, and I think a very surprising one. So, what was really special about Rhode Island at the founding? What made them stand out and can you say more about that analog between their middle class world and ours?

Gordon Wood:

That’s exactly right. They were a middle class society that probably of all the states, certainly the most middle class, that is to say they had the weakest aristocracy. And right from the beginning, they never were able to establish even a semblance of an aristocracy in their state. And as a consequence, they were very entrepreneurial minded, go looking for the fast money. And they were involved, of course, in slave trade, drum making, and all of that. But I think it’s the middle class nature of the society that… And of course, they were involved in paper money, which is, they had 11 issues, I think, of paper money as a colony. And this was far in excessive what any other colony did. And that paper money was capital, if you will. And they continued that after the revolution. They were the only state that refused to attend the Federal Convention in Philadelphia in 1787.

So for a host of reasons, Rhode Island was interesting. James Madison, in his small little essay that he wrote, a working paper for his ideas about the new Federal Constitution, isolated only one state that he complained about. And that, of course, was Rhode Island, mainly for its issuing of paper money which created inflation and hurt creditors. And Madison’s whole structure was designed to protect minorities from majority overreach, or majority tyranny. And Rhode Island was the example that he used of this democracy run wild.

So, for a host of reasons, Rhode Island was interesting. And, of course, Rhode Island went on in the nineteenth century to become an economic powerhouse. By the end of the century, they had five leading manufacturing firms in the world, were located in this tiny little state. So, there’s a host of reasons why they picked Rhode Island as an example of the middle class society that really came to dominate the north.

Brian Smith:

Yeah, it was a fascinating example of how banking and credit have these long-tailed effects that you-

Gordon Wood:

And, of course, it was not at all anticipated by the founders.

Brian Smith:

Exactly. And as you say, none of them really understood how complex and rich that network of commercial exchanges really were, or how they depended upon the relatively easy money that paper notes allowed.

Gordon Wood:

None of the founders really, except for Hamilton, understood what a bank was anyhow. Adams never did. Jefferson never did. But Hamilton knew what a bank was, but he was unusual. But what Madison wanted in constitution was a veto given to the Congress over all state legislation. That’s so impractical. Can you imagine if they had stayed in all bills that the states wanted to pass would have to be sent to Washington, and having hearings, and the Congress would have to approve them? Well, that was Madison’s proposal. He was so frightened at what the states were doing.

Well, that was so impractical that they mentioned, threw it out, and had substituted Article one Section 10 of the Constitution, which lists a number of prohibitions on what the states can do. Namely, they cannot print paper money. Well, if that had been enforced rigidly, it would’ve stifled the antebellum economy. States get around that by chartering banks, which in turn issued the paper money.

And, of course, there were probably hundreds of banks. And by the eve of the Civil War there were 10,000, probably 10,000 different paper currencies. It was just chaos. And of course the Civil War ended all that. The federal government shoot its own greenbacks, as we do today, and taxed the state banks out of business. But up to that time there was just these state banks issuing currency, and it must have been intolerable as a businessman to deal with this. You’re in Providence, in Rhode Island, and you get a bank note from the first Bank of Nashville, Tennessee. What do you do? Well, probably if you wanted to take it, you’d probably discount it because it’s so far away. The bank note would say, “We, the Bank of Nashville promise to pay the bearer $100 in gold or silver,” but you’re not going to go to Nashville. So you take the note, discount it, give the person $90 worth of goods, and then hope you can pass it on to somebody else. That’s the way it worked. It must have been very chaotic.

Brian Smith:

So, I wonder if we can rewind a bit though. I jumped the gun a bit, just out of excitement because I wanted to hear more about Rhode Island. But I wonder if we could go back to the beginning, and talk a bit about sovereignty. So, you say that defining who was sovereign was the issue that finally broke up the empire in the… Can you explain that a bit?

Gordon Wood:

Yes. Well, the imperial debate started over an issue of representation, where the parliament issued a stamp tax. Parliament said, “You can’t tax us. We didn’t give consent to that.” And the British responded by saying, “Oh yes, you were. You were virtually represented in the House of Commons.” And the Americans said, “We don’t like this virtual representation, we’ll have none of it.” But the issue then moved to the issue of sovereignty, which was something that the English and Blackstone, the great legal jurist had worked out. Although he didn’t invent it, he put it into his book published in 1765, that there must be in every state, one final supreme lawmaking authority. And in the British constitution, that authority rests in parliament, and there can be no deviation from that. There has to be that final authority.

And the Americans kept saying, “Well, no, we want to divide authority. You have some authority over us, yes, for trade purposes and so on, but we don’t want you to have the right to access.” And the British responded in the following fashion. They said, “If you deny parliament’s authority in one aspect, you have to deny it entirely. You have to accept parliament’s authority, it’s final authority.” And when confronted with that choice, by the end of the 1760s, 1770, the columnist responded to say, “Well, if that’s the case, we’re independent of parliament, and we’re tied only to the king.” And they worked out in a series of pamphlets written by all of the major founders, Jeff Adams, all wrote pamphlets saying, creating what I would currently called the Commonwealth theory of the Empire, similar to the modern Commonwealth, that is to say Canada, Australia, New Zealand, are tied to the British nation by the Crown only. And each of their parliaments are independent. Something worked out in the twentieth century, 1931.

So, that’s the position the colonists are forced into by the early 70s, that they are tied only to the Crown. And of course by English standards, this was just, because we, Americans, can’t fully appreciate it. But Parliament represented such a liberty loving, it was the source of English liberty. It was the bastion of freedom against the Crown. The Crown was the source of tyranny. And through history, especially from the seventeenth century on, parliament had come to the side, or to rescue the people from the tyranny of the Crown. So, for the colonists to take on parliament, was to create a confusing situation for the British. They thought the Americans must be Tories. That is to say not good wigs. Wigs being the people who support parliament and support liberty, support all of the things that parliament did, especially the glorious revolution of 1608.

So, the Americans are forced into a very peculiar position, in terms of fish culture, where they’re opposing the bastion freedom that is parliament, and are tying themselves to the Crown, which is the source of purity. And from the British point of view, it was totally confusing. North said, “They’re just a bunch of Tories, these Americans, what are they doing?”

Brian Smith:

But at some point though, in this narrative, a concept of sovereignty resting in the people emerges to replace the sovereignty of the king. When did that happen?

Gordon Wood:

Well, you see, when we get to the Federal Constitution, there’s opposition from the anti-federalists, and large opposition. The country was really divided. In fact, if they’d been a poll taken, the Constitution needed. It was an unusual situation. This was an unanticipated creation, this federal government. And the anti-federalists raised the issue of sovereignty. They said, “Look, sovereignty says, the doctrine says, there must be in every state, one final supreme lawmaking authority. And we can look at this constitution and its supremacy clause, that’s going to be the Federal Congress, and our states, which will be reduced to nothing, to measuring the height of fence posts and laying out roads. And that’s all states will have to do. This is intolerable for us.”

And it was a very embarrassing argument for the Federalists, which is the name that the supporters of the Constitution took. They were awkward. They said, “Well no, we’re going to divide power. Some power’s going to be given to the federal government, some powers will remain with the states.” But the anti-federalists, just the way the British had, just came back over and over again, so there must be in every state. And they invoked this doctrine of sovereignty.

And it’s James Wilson, who is, I think, relatively unrecognized founder, very smart Scotsman, who had immigrated to the colonies as a young man. He was a graduate of St. Andrews in Scotland. He comes up with a solution. He says, “We’re going to relocate sovereignty in the people.” Now, this isn’t just meaning that powers all derive from the people. And all good wigs in England believe that, saying that this actual law making authority, final supreme power, rests in the people. And they’re doling out bits and pieces of it to the different agents, some to the federal government agents, and some to the states. And once that idea, he did it in a lecture he gave out of doors, and then also repeated it in the Pennsylvania Ratifying Convention. And once Madison and others heard this, they said, “Ah, that’s all we need. That solves all of our problems, all of our intellectual problems, this doctrine of sovereignty resting in the people.” And so, that’s the origins of it.

Brian Smith:

So, that’s really interesting. But prior to this, you say that one of the other great innovations in the Americas, is the move to written constitutionalism. And while these don’t exactly evolve in parallel, it is this very unprecedented move, which you’re right to point out. What do you think drove this desire to move away from the unwritten English Constitution and into a written series of documents that we could use to understand our political process and its parameters?

Gordon Wood:

Well, it’s true. The English did not have a written constitution, and still don’t have. It’s very unusual. I guess Israel’s the only other state with England that doesn’t have a… But England did have a lot of written documents, and starting with Magna Carta in the thirteenth century, and all the way up through the Bill for Habeas Corpus, and then of course the Bill of Rights of 1688, ’89, those were all written documents. You write things down when you’re not sure that when you want to make them clear, and assert their strength by writing them down. That’s why we have written contracts. And so, that’s what they thought they were doing.

And of course, England briefly had a written constitution in the middle with the Cromwell, and the little experiment in Republicanism that England had. But there was nothing like what took place in 1776. Each of those states wrote its constitution. And it’s hard for us to understand, but the states were independent. They had a significance for each [inaudible 00:18:29], the people who lived in the states, that’s difficult for us to appreciate. We think of the states more as ministry of units. But think back, Massachusetts had a hundred and some years, 50 years of history. Virginia had the same thing. So, when Jefferson said, “My country,” he didn’t think of the United States as his country. It was Virginia. And when John Adams said, “My country,” he meant Massachusetts.

So, you have to think of the articles of consideration, which is the first treaty that holds these states together, like the EU today. We know there’s an EU, but how much do people think of themselves as Europeans? Frenchmen think of themselves as French, and the Germans say, “Well, we’re Germans.” But there is this thing called the EU, and to some extent they are aware of a Europeanness, and that’s a best way of understanding how Americans thought of themselves. They did talk about themselves as Americans, but they also knew that they were the citizens of Massachusetts, or Pennsylvania, or Virginia. And so that first tree, like the EU, the articles were based on a treaty of these 13 states coming together. And each of them had its own constitution. So, moving to the Federal Constitution 10 years later, was something nobody anticipated, 1776, not a single person even raised the idea of such a strong federal or national government in 1776.

Brian Smith:

No, you do a really interesting presentation in the book of how surprised everyone was that it didn’t come out of imminent crisis, that we built this new constitution. It wasn’t quite accidental the way you presented, but it acquired a force of its own. Can you say more about some of the peculiarities in that moment of-

Gordon Wood:

There were some federal problems, that is national problems that they worried about. This new federal government that they created, the articles of Confederation. The Congress that was created had no power to tax or to regulate international trade. Essentially, you have to think of the first Congress that was created with the articles, as giving the power of the Crown. It was a substitute for the Crown. And since the Crown couldn’t tax, and the Crown by itself could not regulate trade, neither could this new Congress. And everyone by I think by the mid 1780s, was ready to give the Congress the powers to tax at least a 5% impost, or tax on imports and the power to regulate international trade because it was getting confusing. Massachusetts was passing its own navigation acts that were hurting Connecticut or Rhode Island, and it just didn’t make sense to have each state having its own navigation system, national trade.

So, people are ready to give those powers to this Congress. But there is a larger problem, a much more potent problem that Madison put his fingers on. And of course, he’s not alone in this. That the state legislatures were running amuck. They had been given such power in the state constitutions, especially the lower houses, the Houses of Representatives, and they were passing all kinds bills, multiple… As Madison said in his working paper, “The Vices of the Political System of the United States.” It’s a very important document. Madison worked it out in April, or in the early spring of 1787, in preparation for the convention.

And he lists the problems that the states are. He said, “The multiplicity, the mutability, that is the changeability, and the injustice of all these state laws.” The mutability laws were being passed by annually elected legislatures with turnover of 50%.And so, every legislature had new laws to pass. And it was just getting confusing. Judges didn’t know what the law was. The multiplicity, there were more laws passed with Madison, in the 10 years since the Declaration of Independence, than in the entire colonial period. So he said, “We’ve got to do something about that.” But more important, these laws were unjust, and he focused on the paper money laws that were being passed, that hurt creditors. And I tried to explain why that was so harmful to the elite.

And any ways, those are the forces that are building up. And when the convention is called, most people assume they’re just going to add a couple of powers to the… That is the power to tax, and the power to regulate international trade, to give those powers to the Congress. But instead, Madison comes to the convention, and he’s backed of course by the Virginia delegation, and lots of other elite members of the society with a whole new proposal, the Virginia plan. He’s not going to amend the articles, he’s going to scrap them and substitute something entirely different. And this is a shock to many people when they find out it’s not the articles revised. It’s an entirely new constitution, giving an immense amount of power to the Congress and the President. So, that’s the background to what happened in 1787.

Brian Smith:

So, it seems like part of the realization that the members of the Constitutional convention had, was this sense that we need a higher law to reign in all of these challenges. But you also say, elsewhere in the book, that democracy itself is a problem under the articles. To what degree was this? Were these ideas like the Virginia plan, an attempt to reassert a republicanism against democracy?

Gordon Wood:

Well, that’s one way of putting it. The things that Madison complained about, which he calls the excesses of democracy, are in some sense things that we’ve come to take for granted. The idea that the politicians should be concerned about what their constituents think, and the horse trading, the things that… He served for a short time in the Virginia legislature. He was appalled at what was happening. And yet, the things that he complained about were, we considered the stuff of democracy. He had an idealized notion, and some of them… And the others did as well, an idealized notion of democracy. Now, we must be clear about this, the revolution was conducted not to create democracy, but to preserve liberty. That’s what they talked about. They never said in the serial crisis, we’re trying to create a democratic society. They thought that a democratic House of Representatives, which is where the democracy resided, that is the lower house, is important to preserve liberty, because the people would look after their liberty, but they didn’t think that was the goal of the revolution. That’s just a means towards the goal, which is the preservation of liberty.

Liberty is being threatened by democracy. The democratic behavior of these lower houses in the decade following 1776, they suggest all kinds of solutions. First they say, “Well, maybe we could make the Senate more stronger, or the judges could use their authority to curb the lower houses.” But in the end they feel that that would not be satisfactory. And so, they go to this new federal government that’s going to be a way of curbing state legislatures.

Democracy starts as a technical term of political science, referring only to, it means ruled by the people, and the people are confined to the lower house. That’s why it’s called the House of Representatives. The Senates were not democratic bodies. They’re supposed to be Republican counterpart to the House of Lords. They represent the wisdom of the society, and if you will, the aristocracy of the society. And then the governors, and of course this is John Adams who has a tremendous influence on the state constitution make. The governors represent the sort of monarchical element. They go back to Greek philosophy. Aristotle talked about the monarchical, the aristocratical, and the democratical parts of government. And you try to get a balance among these three powers. That’s what’s the thinking that goes into the original state constitution.

The House of Representatives is the only body which is democratic, because the thinking of democracy is a technical term of political science. 10 years later, by the time you get to the Federal Constitution, democracy is already emerging in the way we think of it as the whole system, as a set of values that goes way beyond the organization of government. And we’re left with this awkward terminology when we talk about the House of Representatives. What do we mean by that? Is that the only body that’s representative? Are the Senate’s not representative?

So, we have to think about how these parties emerged. And by the time you get to the federal government, the Federalists are arguing that all parts of the government are representative of the people. And so, that the House of Representatives has no monopoly of representation. These are fantastic changes in a relatively short time, that get us into more or less the way we think about it today. And they’re already talking in terms that we would about democracy being the values of the whole system. And the people are everywhere in the system. So, in 10 years time, there’s a radical transformation of language and of meaning, that gets us into a world that we are very familiar with, it’s our world, in a 10 years time.

Brian Smith:

So, one of the most provocative things you say at the very beginning of the book, is that one of the very special things that happens in this time period is the forging of an identity through these documents. Because we’re not a blood and soil people. We’re not a people of one ethnic origin. We don’t have a singular tradition that’s handed down to us, but we do have these documents. So, can you say a touch about how out of this messy set of compromises, and this coalescing of understanding, which you just summarized for me, how do you think this notion of documents like the Constitution and the Declaration as a basis of identity, started to be formed in the early republic?

Gordon Wood:

Well, because they were quite aware that they will not single people. Even by 1790 when the first census, the English were of course the largest ethnic party, but they were Scots, they were Irish, they were French, and there were lots of Germans, some Swedes. They recognized immediately that they were diverse people. And John Adams wrote about it. He says, “We’re a hodgepodge. How can we ever hold together?” He was kind of pessimistic about it.

There were 19 different religions, and there were just as many different ethnicities. And he says, “This is not a nation.” So, there’s some awareness of the diversity, nothing like what we have today, of course, where the whole world is in the United States. But even then it was diverse. And so, they actually clinged to the documents as the adhesive force. And the person of course who cements that in our history is Lincoln. He comes to really, [inaudible 00:32:01] the Declaration of Independence. That that is the thing that pulls us together. But there was an awareness even back at in 1780s and 90s, that constitution, especially after the Federal Constitution, the constitution becomes the king, so to speak, and the thing holding us, this very diverse people, together. And I think that’s still true today.

Brian Smith:

Since you brought up the challenge of ever-increasing diversity, I wanted to talk a bit about slavery. And in particular, the way in which it’s become this central focusing project for the understanding of American history in recent years, both through the new history, histories of capital and the 1619 Project. Can you talk a little bit about how you think we ought to think in terms of slavery? And then, maybe we can talk more about where these movements are taking history in general.

Gordon Wood:

Well, slavery has existed in many states. Probably every culture at some time or another had slaves for thousands of years. And it was existing, especially in the new world, in Latin America, and in the United States at the time of the American Revolution. And it still exists in some parts of Africa and the Middle East, [inaudible 00:33:35] slavery. But there wasn’t anything quite like the plantation slavery that existed in Latin America and in the South.

But the recent argument about the 1619 Project, that the protection of slavery was the source of the American Revolution. The data they used, the evidence they used is Lord Dunmore’s proclamation of November, 1775. Lord Dunmore was the Royal Governor of Virginia. He’s sitting in his ship, his British ship in Chesapeake Bay, in a desperate situation militarily. So, he issues a proclamation offering all of the slaves in Virginia, come to the Crown side and they’ll be free. About 300 slaves respond at that time. And this is the argument that underlies the claim by the 1619 Project, that slavery was the source of the American Revolution. That the fear of losing slaves was the source of revolution. It’s just not true. Virginia was already in a revolutionary situation. The rebels were in complete control of the government, which is why the governor is sitting out on his ship in Chesapeake Bay. He’s been ousted, and the rebels are in control. There was no fear of their slaves being taken away by the British that led to their revolution. Their revolution was based on they wanted to control their own destiny in Virginia.

But the other side of it is, of course, in 1776, the Northern states launched the first, and perhaps in modern times, the only effort at legalizing or abolition, that is the abolition of slavery. This is the first instance history of the world, of the modern world at least, in which a system of government which legalized slavery did away with it. Now, there’s not great numbers, about 50,000 slaves held in the northern states, but it is a momentous time. It’s a monumental event to have the first abolition movement in the world. And it had a great impact on the new world. You can imagine what the Southerners who weren’t prepared to free their slaves, and the Latin American observers of this felt. This was an ominous sign. If the northern states, still country, the United States could abolish slavery, then it could be abolished anywhere.

And so, from that moment on, the defenders of slavery thrown onto the defensive. Slavery essentially had never been tackled in this way before. There had been isolated instances of people opposing slavery, [inaudible 00:36:41] Samuel Sewall in 1700 wrote something against slavery, and Quakers had spoken out against it. But where slavery had been previously legitimate, no state had ever abolished it. So in that sense, the American Revolution was a momentous attack on slavery, and it divided the country. The Virginians were caught in the middle. There were lots of people in Virginia who were eager to abolish slavery, Jefferson being the most important. But it was too overwhelming for them. They had a population of about, it was about 40% of the population of Virginia, which was by far the largest state, 200,000 slaves in the state. It was just too much for them. But if they could have gotten over that, it would’ve been incredible.

But Virginians were eager to move against slavery, at least in 1776. It all changed later, especially with the Saint-Domingue, the Haitian rebellion in 90s, that frightened Virginians and frightened Southerners in general. But what’s interesting and never mentioned by the 1619 Project, is that in 1791, the College of William and Mary, the trustees, were all slave holders. Wealthy men, give an honorary degree to Grandville Sharp who was the leading British abolitionist at the time. Now, why would they do that if they were frightened of abolition? Why would they board an honorary degree to a British abolitionist?

Many Virginians were eager to try to move against slavery, and Washington was confident that slavery would die. They had been growing tobacco. Tobacco is a very soil exhausting crop. And so as a consequence, many of them, including Washington, were moving to the growing of wheat grain, and grain and wheat do not need the labor that tobacco did. And so, they had excess amount of slaves. Washington was renting his slaves out to people in Norfolk and in Richmond. And that’s the first step in their minds towards waged labor. If you’re renting your slaves out, then somehow or other they got the thinking that slavery is on its last legs, and is going to die a natural death. Now, they couldn’t have been more wrong. They live with the illusion that slavery was slowly going to end itself. It compete with free labor, and they live with that illusion. And there are dozens of people saying the same thing around the time of the federal constitution, but they couldn’t have been more wrong. They live with the illusions. Of course, we live with illusions too. We just don’t know what they are.

So, that’s the context. And so, it’s a very mixed thing. And certainly the 1619 Projects has got it backwards. What’s important is that the American Revolution makes abolition legitimate for the first time in history. The abolition of slavery by those northern states, eight northern states, is extraordinary. Even if the numbers are small, there are only 50,000 involved. It nonetheless is a momentous time to have that movement. And so, I think the American Revolution has to be seen as the beginning of anti-slavery. We are the first state to move against the slave trade when the United States moves against it. And we have this abolition movement in all of the northern states. Now of course, the southern states don’t, and that’s the problem. And of course, the division of the sections led to the Civil War.

Brian Smith:

So I wonder, do you think that one of the great problems that the 1619 Project brings to light, is the degree to which the American history discipline has just been derailed into thinking in terms of contemporary politics? Is that the central problem that we’re facing right now?

Gordon Wood:

I think it’s bigger than that. I think we’re in the midst of a monumental period in our history. And this is elite driven, but we’re trying to atone for the 400 years of both slavery and segregation, that blacks in our society have suffered. And there’s just no doubt of it. The story is bad enough, the true story is bad enough, and there’s no reason to have to invent things the way Hannah Jones and the New York Times have invented, because the true story is bad enough. There’s just no doubt that slavery existed for several centuries. And then even with the north freeing of the slaves, the northern whites were unable to give equality to the blacks. And blacks had their rights taken away. Not immediately, but slowly. And by 1840, no new state that was brought into the union after 1840 gave blacks any rights of citizenship. And it’s really not until the 1960s that blacks have achieved any civic equality.

So, that bitterness and that guilt felt by white elites is driving these… So, the 1619 Projects is just an aspect. In some sense, one small aspect of this larger thing that’s running through our society, and will have to run its course. I’m not sure how long it’ll take, but we are going through an immensely important and monumental period in our history.

Brian Smith:

So, how do you think the history profession or other branches of the humanities or social sciences, can helpfully address this in a way that doesn’t rend the society apart?

Gordon Wood:

It’s gotten politicized and that’s not healthy. Well, all I can say is, I think the humanities are hurting. They’ve lost their confidence. I just give you a statistic. Over the last 10 years, Harvard, 10 years ago, 30% of the graduating class majored in the humanities. Now that’s down to 10%. And if that continues, if that tendency continues, first of all, a lot of colleges will begin abolishing the humanities. They won’t have the students. The students are looking for subjects that have monetary returns, finance or something in computer science. There are more computer science majors at Harvard than majored in all of the humanities put together. So, these are the tendencies of our time. And small colleges are either going out of business, or they’re being forced to abolish the humanities courses, because there’s no student in.

So, there’s a really larger problem going on, that’s bigger than just the 1619 Project. And there’s no doubt that American history and history in general is hurting, and it’s become politicized. Of course, it’s always been to some extent the problems. When Charles Beard wrote his book in 1913, it created sensation, and there was a lot of… Going through a very important period in our history. Can be depressing, but a 100 years ago, if you remember, there was an equal crisis in some sense with the new immigrants coming in. People really frightened of all these Eastern Europeans polls, and then the Italians and Jews all coming in. And it looked like the society could not absorb these people. They were too different from the previous immigrants. And there was a crisis. And remember what John Dos Passos, the novelists said, in light of the Sacco & Vanzetti trial, “All right then, we are two nations.” And it looked bad. We were a nation of native one and… Of 13%, about the same percentage of foreign born as we have today in 1920.

But we weren’t two nations then. But we were able to assimilate. And by 50 years later, intermarriage became the secret, and that crisis was averted. We didn’t remain two nations. And you remember AV’s Irish Rose, and the whole series of intermarriage. And that I think is the secret to our problem right now. I read somewhere that black-white intermarriage is up to 17%. Jews and non-Jews are marrying almost close to 50%. Asians and non-Asians are marrying 50%. That will ease the problems we worry about. But anyway, we are in a midst of a tremendous crisis. And I think it’s said by the guilt and the realization that blacks have suffered, and they’re not fully assimilated in some sense. It’s almost like new immigrants. They came in the 1960s, so to speak, even though they’ve been here from the very beginning. So, it’s a very difficult time for us, and we have to have hope or the patience to see it through.

Brian Smith:

Well, thank you for your time. I think this is an excellent place to end. Gordon Wood’s book, Power and Liberty, is available anywhere books are sold. And thank you for your time.

Gordon Wood:

Thank you.

Brian Smith: Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

**Statecraft Etched in Stone** Feb 24, 2023
Paul Edgar joins Rebecca Burgess to discuss the picture of statesmanship we can glean from an extended ancient inscription on a statue of Idrimi of Alalakh, discovered in 1939. Edgar has written on the Idrimi inscription for Classics of Strategy and Diplomacy.

Brian A. Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal, *Law & Liberty*, and is hosted by our staff. Please visit us at lawliberty.org, and thank you for listening.

Statue of Idrimi (British Museum)

Rebecca Burgess:

Hello and welcome on this Groundhog Day to Liberty Law Talk, the podcast for Law and liberty. My name is Rebecca Burgess. I’m a Contributing Editor at Law & Liberty, Acting Director of the Classics of Strategy and Diplomacy Project, visiting fellow at the Independent Women’s Forum, and a few other professional odds and ends.

I mentioned Groundhog Day for its iconic Bill Murray movie reference, because when it comes to questions of statesmanship and international relations, the more we today want to describe everything as unprecedented, the more we find things are in fact very much precedented. On that theme, joining me today and highlighting the point, by talking about the Idrimi statue inscription, one of our most ancient accounts of statesmanship in near

Eastern history, perhaps the earliest complete biography of a political figure that has been discovered to date, is Paul Edgar of the Clement Center for National Security at the University of Texas, Austin. Welcome, Paul.

Paul Edgar:

Hi, Rebecca. Thanks very much for having me here, and thanks for your work on a number of things. We’ve had the opportunity, fortunate opportunity to work together on essays, and I’ve read your public writing frequently over the past several years, so thank you.

Rebecca Burgess:

Oh. Well, thank you. Well, I need to tell our listeners a bit about your honors and glories, Paul, on theme with our subject, and I promise I won’t be chiseling this in stone while we’re speaking. Paul is an Associate Director of the Clement Center, and he holds a Ph.D. in Middle Eastern languages and Cultures from the University of Texas. He’s also a philologist of several ancient languages and has studied, notably at Tel Aviv University.

But even more intriguing, before entering academia. Paul served more than 22 years as an Infantry Officer in the US Army, beginning as a platoon leader in Korea, and eventually finding his way to slightly sunnier pastures perhaps in Italy, hotter pastures in North Africa, and more recently serving in Iraq during Operation Iraqi Freedom, also in Afghanistan with his final assignment being in Jerusalem. Is that correct? I have that all right?

Paul Edgar:

Correct. Yeah.

Rebecca Burgess:

Perfect. So when I say that on today’s podcast we have a traveler from an antique land in the east, it is the truth. And Paul, I was wondering if you would mind if I did some personal indulgence and quoted Shelly’s poem that is on theme?

Paul Edgar:

Sure. No, no. That’s a great idea.

Rebecca Burgess:

Oh, great… So, “I met a traveler from an antique land, who said, “Two vast and trunkless legs of stone stand in the desert … Near them, on the sand, Half sunk a shattered visage lies, whose frown, And wrinkled lip, and sneer of cold command, Tell that its sculptor well those passions read. Which yet survived, stamped on these lifeless things, The hand that mocked them, and the heart that fed; And on the pedestal, these words appear: My name is Ozymandias, King of Kings; Look on my Works, ye Mighty, and despair! Nothing besides remains. Round the decay of that colossal Wreck, boundless and bare. The lone and level sand stretch far away.”

So of course, as you know Paul, that’s Shelly talking about Ozymandias, the Pharaoh. But speaking of words on pedestals, I wonder if you can start us off by telling us about how important these old statues and inscriptions are, how they keep on ending up in British museums and us finding them in British museums and studying them there, how Shelly was responding that too in his day, but today, why relatively recently we’ve only come to the history and the knowledge of this statue?

Paul Edgar:

Well, I find these things interesting. And I think they’re academically important. I think they can certainly enrich what we already understand classically and practically about politics, politics broadly. Most of what I’ll talk about today is international politics, but international diplomacy. So I don’t think they offer anything new, but I think they do offer confirmations of these things that we know more traditionally from the era of Herodotus and Thucydides and forward. I think historically our understanding of history and political history especially begins there, right around the 5th century or 6th century B.C. You could turn, I say, perhaps we could turn to some biblical text, but for the past couple 100 years at least, people have been hesitant to do that, certainly the last 100, 150 years. But our understanding of these things begins with those texts that remained with us from the time they were written all the way through today.

And Napoleon, I’m sure many other things involved, but Napoleon’s tour, I think the whole tour was unexpected. He went to Egypt and then got stranded there in Egypt and thus worked his way up the coast of Palestine, Syria. But when he did that, one of the things that occurred, or one of the things that corresponded with it was this sensation in Western Europe with things that are older, things that we would call pre-class, that predate Herodotus and Thucydides. And so, there was a rush of archeological exploration, much of that private, privately funded, or perhaps a kind of a combination, private and state-funded. But there was a whole lot of private involvement, private money involved. And as a consequence, we discovered so much. We discovered Sumerian texts and Acadian texts, thousands of years of these things. Much of that is what we would call accidental. In other words, we may have stumbled upon archives, formal archives, but our discovery of it isn’t complete. We happen to find particular archives for different reasons, perhaps the ones that were easiest to find at the time. And there’s probably still a lot more that we still don’t know about ’cause it’s all been covered up.

But anyway, so we discover this material. A lot of it is cuneiform tablets. Most of those tablets would be receipts, but a whole lot of them, our diplomatic texts, they’re diplomatic letters, they’re treaties. And over the last 200, 150, 200 years, academics have had an opportunity to, one, sort of crack the code. ‘Cause most of these languages we didn’t know. We didn’t even know they existed. So we had to decipher the script, decipher the language, and then organize the language and better understand it. And all of that, of course, takes a long time, for a number of reasons.

But I think we’re in a position now where we can take a lot of those texts and tell a bigger story, tell a more complete story of the eras that we would consider early iron. So this is much of what is captured in the early part of the Hebrew Bible and Samuel, Kings. But then much earlier than that, and the example today comes from what we call the late Bronze Age, an era from about 1,600 to 1,200 or 1,100 B.C. And the statue that we’re talking about is kind of towards the latter end of that in the 15th century, about 1,450 B.C.

Rebecca Burgess:

So who would, for context for some of our listeners, who would’ve been the big figures? Egypt comes to mind, of course, lots of people know some of the pharaohs, around which Pharaohs or reign would this might have been?

Paul Edgar:

So, I’m a little hesitant to… Sometimes I’m hesitant to talk super precisely, but in this case, I think we’re at least fairly safe to say, or we’re certainly safe to say that the prominent Egyptian pharaoh during Idrimi’s rule, again, we’ll introduce Idrimi a little bit more or in more detail here shortly, but during Idrimi’s rule, the two pharaohs that would’ve been in power were probably Thutmose III and Amenhotep II. Both of whom, mainly Thutmose III, but both of them conducted military expeditions up into this area. Now those tended to be short-lived, they didn’t establish, they didn’t colonize, or try to annex anything up there, but there were certainly prominent military expeditions up there. So, they did reach the area of Idrimi and certainly would’ve been known to Idrimi and those that he socialized with.

Rebecca Burgess:

Got it. So speaking in a mix of both biblical peoples and terms and modern day, we’re talking about, with Idrimi, the area of modern Turkey, Syria-

Paul Edgar:

Right.

Rebecca Burgess:

… the Canaanites, right? Am I getting that right? That’s about where it?

Paul Edgar:

Yeah. Yeah. No, that’s more than fair. So, where Idrimi’s statue was found and where Alalakh, his city or city-state was located is in modern Turkey, but it’s barely in modern Turkey. It’s just on the other side of the Orontes River there near Syria. I would still refer to it as Syria. I know that some, depending on how people conceive of these places, some people may disagree with me or even disagree with me sharply. But I consider this northern Syria, not in the sense of the modern state, but geographically.

Rebecca Burgess:

Got it. Got it. And then, this particular statue was found somewhere around the 1930s, correct?

Paul Edgar:

Right. So it was a British expedition. Leonard Woolley, who was now, wouldn’t be considered a modern or a high-tech archeologist in our day. Archeology has come a long, long way in the past couple of 100 years. They’re still coming along, they have a long way to, but they’ve come a long way. But for his time, Woolley was very precise about what he was doing. He had certain methodologies of controlling a dig and being very methodological about it, and accounting for where, how things were found, and the state it was found in. He did that as well, or better than anybody who had preceded him.

Rebecca Burgess:

So I think, when you first brought this topic to my attention, what I was most, maybe arrested by is, speaking as a political theorist, we often get a little caught up in the words in texts and thinking about learning actual political theory in a sense, but politics and diplomacy from a statue and an inscription on a statue, I found absolutely breathtaking, but also fascinating. And the physical statue itself is very intriguing and unique. Could you describe a little bit about it? From my understanding, the writing is actually on parts of the body of the king. And even with a little thought or speech bubble coming out of one side of his mouth.

Inscription on the Idrimi statue (British Museum)

Paul Edgar:

Correct. So the statue, and anybody can look this up, you can look this up on Wikipedia, there’s a really nice picture of Idrimi and the inscription on Wikipedia. The British Museum, of course, has a couple of good photos as well. But actually, those photos are a little bit without context, ’cause they have a black background, and so you think it might be huge. And it’s not, it’s three and a half feet tall, and it’s made of, I may be mispronouncing it, but I think I’m using the right term, magnesite. So this is a light, perhaps a light gray or a white stone, at least two pieces, the throne and then Idrimi, the figure of Idrimi himself are two separate pieces. There may be more than that, but certainly two primary pieces. And then the inscription, which is in cuneiform form, in a language that we normally refer to as peripheral Acadian, is written across the statue and begins in one spot, and they use about all of the, not all, but most of the surface area of the statue to write this inscription, which again, is, in summary, a political biography of Idrimi’s life.

Rebecca Burgess:

Great. And of course, the king himself could have inscribed this, but we actually know that it was not himself, it was a scribe, correct-

Paul Edgar:

Right.

Rebecca Burgess:

… who actually wrote it?

Paul Edgar:

Yeah. The scribe mentions himself twice in the inscription and mentions one of Idrimi’s sons in the inscription as well. So I think it’s fair to say, unless we learned something else later, I think it’s fair to say that this inscription was written by his family and political colleagues or servants shortly after his death. The end of the inscription is essentially an epitaph that is very, very formulaic, often found on the tombs of royalty at the time. So, while Woolley found this, it was not set, it doesn’t appear to have been set near Idrimi’s tomb, but it may have been set near where he was buried originally, or certainly, it was at the very least sculpted and then inscribed on in order to commemorate his life after he had died.

Rebecca Burgess:

Got it. Well, maybe we should turn to that life now, and you can tell us a little bit about who this enigmatic and clearly charismatic individual was, I think. And we’ll get to, of course, feel free to actually invoke the inscription, which you have translated in an original translation. But he mentions that, oh, his older brothers didn’t quite get the political situation, but he, the younger brother did. So anyway, he seems like a little bit of a character, so feel free to tell us a little bit about him.

Paul Edgar:

According to this inscription, his biography, and we imagine that certainly there was a lot more involved, and the biography is also uniformly positive. So there were probably some rough points, and Idrimi probably had some rough points, even if he was a fantastic leader. There were probably some failures, which the inscription does not capture. So with those as maybe some disclaimers, it’s fair to say that a summary of his life, he begins his life, his family lives in Aleppo, so this is Syria proper. There’s no argument. It’s not whether it’s Syria or Southeastern Turkey, but his family is in Aleppo. And for a number of different reasons, we believe that it’s a prominent family. It may have been the most prominent family. His father may have ruled in Aleppo. The inscription hints that he probably did, but something bad happens, and we’re not sure what. I translate it as a calamity. But in short, the word words mean a bad thing happened.

Rebecca Burgess:

Right.

Paul Edgar:

So something bad happened to his family in Aleppo, and they fled to Emar, which was just about 50 miles to the east of Aleppo. And Emar is a famous archeological dig today with lots of Akkadian texts. So they lived in Emar, where his mother was from, and it appears that everybody was content. Perhaps they were still disappointed with whatever happened in Aleppo, but they were sufficiently content to stay in Emar, except for Idrimi, who, as he grew older, became more and more incensed at what had happened and thought that it was his job to sort of reestablish the family name and family rule in some sense. And in order to do that, he leaves Emar. He goes south into Canaan, which we would consider probably somewhere near the northeastern border of modern Lebanon with Syria today, somewhere in that area.

He runs into a number of refugees from Aleppo that recognized him and knew of his father. He stays there, and just sort of consolidates power or waits for the right moment, sails up the coast with some soldiers, and then sails north, probably about a hundred miles up the coast, probably crosses what would be the mouth of the Orontes River there in the northern Mediterranean. He disembarks and finds more people, apparently, that recognize him, and he sets up in a town that in English we’ll just call Alalah. And as I mentioned, that is right there about a mile away from the current Syrian border on or near the Orontes River, so where Syria, the Orontes, and Turkey sort of meet, right about there. And that’s about 50 miles to the west of Aleppo. So Idrimi did not travel more than about 100 or perhaps at the most, 150 miles from his birthplace of Aleppo.

So he successfully sets up in Alalah with what I’m going to call a domestic constituency, but that’s not enough. He needs to also gain support from one of the great powers, and in this case, the correct sort of candidate, the best ally to make amongst the great powers was Mitanni, the kingdom of Mitanni, which Mitanni is roughly analogous to what we might consider today is Kurdistan, right?

Rebecca Burgess:

Got it.

Paul Edgar:

If we drew borders for Kurdistan, it would be right about where Mitanni is located. The other great power, so we mentioned Egypt, Mitanni is the second, and the third would be Hatti. The Hittites, I think many people are more familiar with that name, the Hittites, the people of Hatti, which was largely in modern-day Turkey. So those were the three powers that he could have relied on and he chose to try to make peace with Mitanni, is successful, and then he also has to defend against some other local rulers. He is successful and, again, sort of consolidates power after that and seems to have a successful period of rule.

Rebecca Burgess:

This doesn’t sound at all familiar to more recent events in the Middle East. Regional powers, fights for powers, families, and tribal societies.

Paul Edgar:

Right. Now, I said that was a summary, but that was probably more than a summary. I apologize.

Rebecca Burgess:

Yeah. No, no, that’s really helpful. I mean, it’s fascinating, and I know you’ll probably read some from your translation, but just the opening, “I am Idrimi, the son of Ilim Ilimma,” if I sang that right, “the servant of the storm god, Hepat and Ishtar, this lady of Aleppo, my lady.” I think it’s fascinating, this kind of chronology that he brings in. But then also this question of the gods and from our Thucydides Herodotus and everyone where we’re so familiar with this question of how do we ground political power and how does a king ground it with his people?

Paul Edgar:

Right. This is a great question. This is a really great question, and I think sometimes our answers are too narrow. For example, when we look at the Hebrew Bible, if you look at the Hebrew Bible, there’s a lot involved, but on the surface, we tend to summarize it as if Yahweh approves of a leader, then the leader is approved and successful, and well, that would certainly be true. It wouldn’t be the only thing that’s true. There’s a lot of work that goes into political leadership, both good and bad examples of political leadership. There’s more than simply a supernatural stamp of approval. And we see this in Herodotus. One of the things, the first time that I read Herodotus, what really occurred to me is how infrequently he refers to a kind of divine providence or divine approval, right?

Rebecca Burgess:

Right.

Paul Edgar:

It comes up here and there, but lots of other things come up as well. And I think that’s what we’re seeing here. We see in one part an appeal to divine authority, but then you see somebody who’s really rolled up his sleeves and done the hard work of leadership as well. And I want to say, I guess I should caveat that a little bit and say, I don’t know whether Idrimi was tyrannical or was magnanimous or what, I don’t know. But either way, the fact is that political leadership is hard work, and he apparently put in that hard work in order to be somewhat successful.

Rebecca Burgess:

Right. He mentioned seven years where he released birds, and inspected lambs. He is waiting for apparently auspicious signs, but that he also mentions, and then he built ships, and he gathered soldiers and he kind of networked it sounded like, to get more soldiers and to impress his older brothers, so his family or his tribe. And then as often happens in movements, success breeds success, almost. And it seems like the more people come the more successful he is. I mean, correct me if I’m wrong, but it almost seemed like to actually reestablish his city, he relied mostly on the recognition of the king of Mitanni.

Paul Edgar:

Right. So let’s do this. I’ll read an excerpt that sort of captures-

Rebecca Burgess:

Yes, perfect.

Paul Edgar:

… this, what I’ll call the domestic constituency or part of it. And then we’ll read a part that, this seven years that you referred to, I’ll read that part and we can comment on both of those. So we’ll start with line 27. So this will cover his period in Canaan amongst the Habiru, which, if we have time we can talk about whether or not that is related to the word Hebrew. But it’s an interesting and divisive question. Anyways, this captures his period in Canaan and then his sailing up the coast and establishing his initial rule, at least in Alalah. So lines 27 through 42. And I’m not sure if you decide you want to link the article where I translated this, and I’m not trying to pump up my article, but if it’s helpful for listeners, then they can refer to it.

Okay. So “I settled in the company of the Habiru for a long time, for seven years. I released birds, I inspected lambs. Then in seven years’ time, the storm god returned to me, so I built ships.” And let me pause here. So to me, this is really interesting, and I won’t comment on this at length, but those of us that are involved in either studying or actually as a practitioner in some sort of political or military leadership, we are always looking for certainty, right?

Rebecca Burgess:

Right.

Paul Edgar:

We want to know that what it is we’re doing is right, whether in a moral sense or practical sense, that this is actually going to work. And while Idrimi’s search or search for certainty, we might consider more rudimentary than ours, he’s inspecting the entrails of lambs or the kidneys of lambs and releasing birds, it’s still the same sort of activity, this quest for certainty in political leadership and decision making.

Okay, so picking up again, “I loaded formations of nullu soldiers,” and just as a comment, we don’t know what nullu is. It’s a special type of soldier, but we’re not sure what, but he loaded soldiers onto ships. “I approached the land of the Mukishim by way of the sea,” so he is sailing up the Mediterranean coast, “and I arrived on dry land in front of the Hazi mountains. I went up and my land heard me. They brought goats and sheep before me. And within one day, as one person, the people of the land of Nihi and Amaae and the land of Mukish and the city of Alalakh, my city,” at least subsequently it becomes a city, “they had turned to me.” So I’ll pause there.

So there’s an earlier passage that captures an earlier part of his, again, what I’m calling a domestic constituency. And here is part of where it grows and is more formally established, and its legitimacy, at least internally, internal to this particular political body, seems to be firm, seems to be established. Of course, his legitimacy in the eyes of others who are relevant is an open question. So we’ll move on to that next. So the next section I’ll read comes from lines 43 through 60. And this is where Idrimi essentially seeks the approval, the acceptance of the king of Mitanni who here is, whose name is Parattarna. We actually have evidence of Parattarna from other sources.

We also have, so your listeners know, we have evidence of Idrimi from other sources as well. So we have a lot of confidence that we’re not talking about Hercules or Aries or anything like that. This was a real person and a real political figure, and so was Parattarna, the king of Mitanni. Now, in the text, it actually refers to him as the king of the armies of the Hurrians. But for our purposes, the king of the armies of the Hurrians and the king of Mitanni are one and the same. Okay. So, “Moreover, for seven years, Parattarna, the strong king, the king of the armies of the Hurrians, made an enemy of me. In the seventh year, I wrote to Parattarna the king, the king of Ummanmanda, and I spoke about the services of my fathers when my fathers found relief before them, the Hurrians, and about our other affairs concerning the kings of the armies of the Hurrians, and it was good. Thus, they established between them a strong oath. Right now, he’s referring to, whether it’s fictive or whether it’s real I don’t know, but a previous relationship between his people, presumably his father, and the people of Mitanni.

Rebecca Burgess:

Just a slight pause here, if I’m getting it right. He starts out kind of as an enemy, right, of Parrattarna?

Paul Edgar:

Right.

Rebecca Burgess:

And something happens where they’re able to establish it’s either a draw, maybe a military draw?

Paul Edgar:

Well, I doubt it’s a military draw.

Rebecca Burgess:

Yeah, probably.

Paul Edgar:

What I anticipate is that, and I’m a hundred percent, this is supposition. I think it’s an educated supposition, of course. But I anticipate that Parrattarna conducted annual military expeditions and that some of them would’ve gone near or through Alalakh.

Rebecca Burgess:

Got it.

Paul Edgar:

And perhaps as this new upstart city state or king over a city-state that had existed prior, Parrattarna did not immediately accept his kingship. And perhaps for many reasons, either lack of interest, lack of time, or other priorities, didn’t just smash him. I anticipate that the kingdom of Mitanni would’ve had no problem smashing Alalakh had it wanted to. But in any case, they were at enmity with one another, or at least Parrattarna was towards Idrimi. And after a period of time, it says seven years, and I think that it could be exactly seven years or this could be sort of a trope in that over this arduous complete period of time where I was working to establish relations, finally, my appeal got through to Parrattarna, and he realized the great wisdom of it and accepted me, and then he made me king. I mean, that’s what he says, is that in fact he doesn’t really refer to himself as a king until Parrattarna, the king of Mitanni, accepts him or acknowledges him as king.

He refers to this prior relationship, and let’s just sort of take that at face value, is it’s an appeal to history, right?

Rebecca Burgess:

Right?

Paul Edgar:

Perhaps it’s true history too, but it’s an appeal to history that, hey, we had great relations before. Now I was in Aleppo, or my family was in Aleppo, not Alalakh, but we had great relations before, so why don’t we pick up where we left off there, and apparently it was convincing. The strong king listens to what I said about the services of my predecessors and the oath that was between them, and he respected the oath, he received my greeting gift for the sake of the matter of the oath, and for the sake of our services, a lost house, in other words, Idrimi’s house, returned to him. Now the domestic constituency is supportive. The great power of the region, or perhaps the most relevant great power of the region, is supportive. You’d think that that would be sufficient, but it’s not. But wait, there’s more.

Rebecca Burgess:

Never enough, exactly. Yes. Oh, I love that next line. It just says, they piled up my ancestors upon the ground so I piled up theirs upon the ground. In battle, I piled them high.

Paul Edgar:

Right. So I ended with a lost house returned to him. Right?

Rebecca Burgess:

Mm-hmm.

Paul Edgar:

Just two or three sentences later, this actually, he then has to fight in order to defend his kingship from those around him. I spoke to him regarding my case, so he is still talking again about Mitanni, and regarding my loyalty, and then I was king. This is the first time that he pronounces himself as, or mentions himself as, a king. The very next sentence, “The kings to my right and my left rose up against me against Alalakh, for he had made me equal like them.” They attack him because they don’t want another peer. Right? They preferred it when Idrimi was not a king recognized by Mitanni. Somehow this is a threat. Perhaps it’s a threat because they’re allied with somebody else or it’s just a threat because they’re allied with Mitanni and less of Parrattarna’s attention if there’s another vassal king to demand attention and resources or whatever else.

This part of my translation I have taken from a former professor of mine, a mentor of mine, Ed Greenstein, the scholar who co-wrote the article with him, and is from the early seventies, this translation, David Marcus. We don’t know what these next lines say. It’s very difficult to translate for a number of reasons. But I thought that Greenstein and Marcus did a really great job of understanding the material of the era, what kind of material literature of the ancient near East would’ve been consistent with this, and essentially cut and paste material actually from the Hebrew Bible that they think captures what these words or what these lines probably say, something along those lines. But I think it does at least capture the intensity of the fight between Alalakh and the kings around them. “Just as they piled up my ancestors upon the ground, so I piled theirs upon the ground, and in battle, I piled them high.”

Idrimi Has to defend himself against the small powers around him. Only once he’s done that, so he’s now established a domestic constituency that is stable, he’s established a relationship with a great power that is stable, and then he battles his neighbors until they leave him alone and are convinced that, okay, either we accept him because he is proven himself, or we can’t overcome him, or the cost of overcoming him is too great, and so we’re going to stop here and call it good. And then he can relax a little bit.

Rebecca Burgess:

Right. Right, where he mentions that he had an estate built. Finally, after all of his enemies are at least neutralized, he had an estate, so he made his throne like the throne of kings and built up his city essentially. I thoroughly enjoy the kind of listing of duties than of what he needs to do as a good king. Or we might imagine him or his scribe saying here’s how and why he was a good king. He settled the inhabitants, he says. In that next part, those lines, 81 and 91, he established the lands. He made my cities equal to those that came before me. Then there’s once again, the establishment of cults of religion, of the gods of Alalakh, and then prayers and offerings. There’s kind of this, as there was at the beginning, a throwback or a recall of tradition and religion and the gods. And then he says he passes it to the hand of his son, so he kind of gives through the narrative of succession. I don’t know, is there anything about that that particularly caught your attention?

Paul Edgar:

Well, there’s two things, the two big things that stand out to me in these next couple of paragraphs. You’ve mentioned one of them, what we might call the stability of the international system, enables him, provides him the bandwidth to do these domestic, these kinds of necessary domestic tasks of improving the lot of his people. That’s maybe the best way to capture it, improving the lot of his people. He refers to essentially settling those that came with him, settling or improving the prosperity of those who already lived there. And then there’s a kind of an oblique reference to settling those who had not been settled. In other words, if you imagine this may be a little bit of a stretch, okay, so bear with me on this, but if you imagine that the prosperity is so great that of course due to Idrimi’s greatness and great leadership, that even those who were previously homeless suddenly had a home, that they were settled.

Think of it in those terms. And then again, that may be a little bit of a stretch, that these people who were not settled could have been either migrants or nomads, people who were intentionally moving from place to place because that just was their way of life. But in some way, people who had not yet settled, settled because of the prosperity and stability that he brought to that region. That stands out.

But then another, and this is worth looking at briefly is line 64. “I took an army and I went up against the land of Hatti, and I seized seven cities.” And he named those cities. He seized those cities, and he destroyed other ones, “And the land of Hatti did not assemble or come before me, so I did what I wanted.” I’ll read one more sentence. “I took them captive. I took their property, their goods, their pilferable things. I divided it for the army, my auxiliaries, my brothers, and my friends.”

If you are a friend of Mitanni, you’re automatically an enemy of Hatti, and this passage makes him sound very bold. And perhaps he was, perhaps he was. My guess is that these were really, really minor incursions to an area that might be kind of minorly considered Hittite. Because again, if just like Mitanni could have wiped out Alalakh at any minute, any time they wanted, well, Hatti’s relative power right now is sort of a little bit reduced from what it was previously and what it will be in another 50 years or so. Hatti still could have wiped out Alalakh without much of a problem.

But essentially, he’s demonstrating his loyalty to Mitanni. This is some bravado here and some bragging about himself, but it also does help place him, again, in what we would call the international system of the era. He’s aligned with one and against another and actually takes military action against the enemy of the king that supports him.

Rebecca Burgess:

Right, and kind of showing us in, so to speak, real time the balancing and the tensions and the dynamics at play in keeping, you’ve mentioned the three constituencies, but really that larger, kind of we go up another level to look down on the situation of how anytime statesmen, kings, are thinking about keeping their people and their kingdom safe, they have to think about all of the different pressures from outside and how they balance those things. You had mentioned certainty and the great desire for certainty and the real lack of it in the international system and how this is what we see. You know? Yeah.

Paul Edgar:

Stable does not mean fixed, right? Stable means stable enough, but it’s always changing, and in a sense, it’s always hanging by a thread. Right? Even a stable, strong international system is arguably hanging by a thread, and if that thread breaks, and of course, I’m speaking to you here as a conservative, one who would argue generally for stability rather than rapid change, if that thread of stability breaks, the amount of suffering by everybody, by all classes and all people and all races, the amount of suffering is absolutely immense.

Rebecca Burgess:

There’s a real role it seems to me in this inscription for agency and understanding how Idrimi himself thought about that and what we can learn from it. I mean, in the essay that we keep on referring to, and I’ll mention it again at the end, which you wrote about this inscription, you mentioned that Idrimi shows that circumstances are not determinative, and neither is geography because Idrimi started out in one situation, he fell from whatever that was to a really bad situation, and somehow managed to be in a better place with supposedly a line of succession after him strong enough that he could curse on his stone anyone who dared to move it, but then also blesses anyone who read it and prayed on his behalf. I think that agency is really interesting, especially when we think of, today, how we look at international relations, foreign policy, and even diplomacy and statesmanship.

Paul Edgar:

Right. And there are a few things this makes me think of, and I’ll try to riff off that thought.

Thinking about Idrimi himself, my dissertation is about this whole era, the political history of this whole era, and so I’ve read tons of treaties and diplomatic letters. Primarily those are between a great power, either Hatti, Mitanni, or Egypt, and a small power, a town or a city-state like Alalakh, or Aleppo or Ugarit which is on the coast of Syria today, within Alawite Syria. And lots of other examples. Jerusalem, right? Jerusalem, pre-Israelite Jerusalem, there are letters from the ruler of Jerusalem to the Pharaoh of the era.

So having read all of these things, the agreements and the treaties, those formal treaties and what we might consider informal treaties, just arrangements that are not written, for each of the small powers, there are similarities, of course, there are similarities, but there are also really prominent differences. In other words, there was negotiating room, and there was room to maneuver, politically speaking. And when a great power was breathing down your neck, even breathing down your neck demanding that you become a vassal, when you agreed to that, there was still some negotiating room so that your particular treaty with that great power might be more or less onerous or provide for more or less liberty, for your own rule for your people, et cetera.

So there is agency within circumstances, within the systematic forces that compel small powers or great power… Whoever. But usually, we’re referring to small powers. The political forces in action force small powers to do whatever. Usually, it’s something negative or bad. And there’s some truth to that. I don’t want to say that political forces don’t exist. But those political forces, as well as the decisions made by rulers of small powers, are decisions made by human beings. Because of that, this is not a physical tsunami that has no capacity to change course, it is headed for its target, and it’s just going to crush it. Because these are decisions made by human beings, there naturally is room for differences, for negotiation, for agency, for room to do things a little bit differently.

I think that does come out, not just in this text, but in the political history of this whole era.

Rebecca Burgess:

It’s a little irreverent of me to say, but Francis Fukuyama’s end of history would not have quite worked at this point, would it have? So much history before them, right?

But on that note, for me, what I found so valuable amongst many things of your scholarship about this is just seeing how this one inscription, this one statue, gives us a snapshot in time of one moment in a protracted regional struggle, or a struggle for regional hegemony in this particular area, in a situation in which you did have three larger powers, Egypt, Hatti, and Mitanni. And how, clearly they’re not robber barons, but littler kings managed and maneuvered within that, and how close that feels to us today, but also how the themes…

In reading this inscription, I get a little bit of Machiavelli, what is it that always motivates the sons when their patrimony is taken away? But not everyone is. Idrimi is, but his brothers aren’t. But then you have this question of the gods, which we mentioned, and tradition. The question of what is it that makes a good king and political legitimacy, your own people looking at you or not? But then… And I think you mentioned this at the beginning, and maybe as we end or wrap up, which sadly I guess we have to do, there’s so much to say, is what is the other value of this text?

Just as a classic source, you could say, I think there’s something that you’ve mentioned before about it because it’s not Thucydides because it’s before Thucydides and doesn’t have the weight of all the commentary around that, perhaps it helps us clarify some things. But then when we think, say, to today’s practitioners and students, what might be one or two things you would love for them to think about in looking at this text?

Paul Edgar:

I think there are a number of things, but let me go with this because based on a question someone asked me yesterday, I started thinking about this. Now I don’t want to draw too much of a parallel between Syria then and Syria now, but I think there are some things that we can at least discuss.

Somebody asked me yesterday, why President Assad is failing where Idrimi, in the same region, not all of Syria, but in the same region, appears to have been successful. And you don’t pick up a lot of humility from Idrimi from his inscription, but I think reading between the lines, this is somebody who was willing to compromise, willing to recognize that he couldn’t have everything that he wanted. And since he couldn’t have everything… This is Machiavelli, right? Don’t go for the ideal. It’s in that sense, it’s Machiavellian. Don’t pursue the ideal if it doesn’t work. Pursue what will work. And because it works, then in this sense, the state has its own morality.

Now, I know some Machiavelli scholars may not like my use of that. I think it’s true, I think it’s part of what he’s saying. He says more than that. But I would say that Idrimi, in his willingness to compromise with Barattarna, knowing that he couldn’t be a king without the recognition of a great power, was willing to give up what might have been his ideal situation to establish something that actually worked. Not just for him, but for those around him. And we could say that Assad is doing exactly not that. Now, Assad certainly has the support of a mediocre power, but he’s not recognizing all of the legitimate political equities within, heck, I’ll say it now, what was really formerly the state of Syria.

And if he had at some point… preferably much earlier than today, but if he had at some point recognized that there’s some legitimacy here that others have or legitimate concerns and that if he could imagine that whatever his ideal is is not going to come to fruition, and be willing to explore the space in between and what might be a reasonable settlement… Now I know that’s a lot to claim or demand from him in an area like that, but that’s the leader’s responsibility, right? That’s the leader’s responsibility. That’s the J-O-B.

Rebecca Burgess:

Right.

Paul Edgar:

But he’s not willing to do it, and so as a result, he’s impoverished from it, and everybody around him is impoverished from it. And impoverished doesn’t really capture it. Calamity doesn’t capture it, right? It’s many calamities put together.

Rebecca Burgess:

Right.

Paul Edgar:

But I think that’s one of those things that we could say that we get a little bit from Machiavelli or we see from Machiavelli in his political theory, but then we could say we see it in practice as well. So this is an example of what I would consider, okay, well this is something that we could point at and say, “This is a classical characteristic of good political leadership or successful political leadership.” Because we don’t just see it because Machiavelli projects it upon our society from the 15th century CE forward, but we see it in a text that predates him, that predates all of the Greek political philosophers and political historians. So it’s a reinforcement, right? It’s not teaching us something new, it’s simply reinforcing things that we ought to know already.

Rebecca Burgess:

Do you think that it’s in that vein… Really, really wrapping up. Do you think it’s in that vein of teaching and transmitting to future generations these themes of what it takes, what’s at stake, of statesmanship and caring for our people, that Idrimi included that?

And I know there are tropes of this, but what’s so fascinating, at the end of his statue he invokes blessings and curses. “Whoever tears down this statue of mine, may his descendants be subdued, may heaven curse his name, may the underworld take his descendants.” It goes on. But then also, “May the gods of heaven and earth cause the scribe who wrote this to live, guard him, be good to him.” And then, “May those who read this and look on this,” the words, “may they pray on my behalf.” And I wonder if this is really early recognition of the importance of transmitting the lessons of kingship and statesmanship.

Paul Edgar:

I think so. I think there’s certainly some hubris there, right? “Remember me.” But also it’s more than that. It’s more than that. And even there have actually been some scholars that have done a little bit of work on that. Actually, one of the mistakes that scholars sometimes make with this particular text is that they look at it and they pick out one single thing that to them is the most important and say, “This is why Idrimi wrote this,” or, “This is why his political colleagues and family wrote this.” It’s probably for a whole bunch of reasons. But this certainly is one of them, that there would be some kind of continuity. That there would be a going forward and not simply a reversal of political stability.

Now again, I don’t want to say whether he was a tyrant or not, because sometimes political stability is worth shattering. But if you shatter it, make sure you know exactly what you’re doing. More often than not, I think it’s this idea of communicating the value of what has been done, what has been established, and not reversing it or not undoing it, because your perspective from things at this moment may be very different than the other side of chaos.

Rebecca Burgess:

Right. Well, hopefully, this podcast has not been chaos or chaotic for our listeners. But thank you again, Paul, for your insights and scholarship on both statesmanship ancient and relevant to today, but also the Idrimi statue inscription. It’s not something I think many of our listeners or many within political theory know about, and it’s definitely worthwhile as an example of the real physical object speaking both through space and time, more than the Ozymandias statue perhaps.

So once again, thank you. That was Paul Edgar, who is the Associate Director of the William P. Clements Jr. Center for National Security at the University of Texas, Austin, and I am Rebecca Burgess, a Contributing Editor at Law and Liberty, and this is Liberty Law Talk. Many thanks to all our listeners.

Paul Edgar:

Thanks very much.

Brian A. Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts, and please visit our journal at lawliberty.org.

Why We Need to Read Feb 28, 2023

Spencer Klavan joins Brian A. Smith to discuss his new book, How to Save the West.

Brian Smith:

Welcome to Liberty Law Talk. My name is Brian Smith and I am the editor of Law & Liberty. With me today is Spencer Klavan, a prominent podcaster who has a new show with DailyWire+ forthcoming, classicist, magazine editor for the Claremont Review of Books, and the author of the new book, How to Save the West, Ancient Wisdom for Five Modern Crises. And I’m very glad to have Spencer on the show.

Spencer Klavan:

It’s a delight to be here. Thank you so much for having me, Brian.

Brian Smith:

So I have a confession to make, which is that when I first saw the title of the book, I thought to myself, “Not another defense of the canon, this just cannot work.” But read the book, refreshingly, and as I got to know you at a conference recently, I realized that can’t be the book, it won’t be the book. And you say so right away in it. Just so we take anyone who has this apprehension and sort of diffuse this so that they go and buy your book, I wanted you to talk about what led you to write it and what makes you and this book different from the rest of the defending the Western canon genre that we’ve seen so many entries in recently.

Spencer Klavan:

Yeah, I really appreciate your asking that question actually, because it’s sort of like that poem, I too, dislike it. I too, dislike poetry. I too, dislike defenses of the cannon or rather I’m sort of bored with them. And I do say upfront in the book that this is not a defense of the canon, full stop. The other thing I say it’s not is it’s not a survey. It’s not the five books you need to read to get a grasp on the whole of Western literature, it’s not a reading list. There are other good books that deal more comprehensively and at greater length with that sort of issue. I mentioned a couple, Jack Rosen, Harold Bloom. Go read those guys if that’s what you want. But what I would say, this book isn’t a survey, it’s not a defense, it’s an offering. And that comes out of the podcast, Young Heretics, which was sort of my first foray into podcasting.

And I kind of began that podcast because it occurred to me that on the right, in the conservative movement, even among well-intentioned liberals who believe in the value of the Western canon, we do a lot of fighting and speaking in defense of the Western canon. “We ought to be teaching Homer. We shouldn’t be scrubbing them from the curriculum. They’re not all just dead white men. Here’s the relevance,” and so forth. And something that I noticed is we spend so much time defending our right to read Homer that we don’t spend all that much time actually reading Homer. It occurred to me the number of people who pound their fists on the table and say, “Oh, the greats of the West, we’ve got to keep them in schools,” I sometimes wonder whether those people are cracking the spines themselves. I mean the point of preserving this stuff is for it to change you, to shape you.

Even if it isn’t erased from the internet, even if it isn’t taken out of the school curriculums, none of that will matter if you personally, wherever you’re with your family, in your home, and your community and you aren’t exposing your soul to the forming influence of these great works. I think that’s what they’re for, I think that’s why they endure. They don’t endure because they’re complicated or fancy or elevated. They don’t endure because they furnish material for PhD thesis. They endure because somewhere in them is wisdom about how to be good at being human. And the reason the subtitle of the book is Ancient Wisdom for Five Modern Crises is I think that the moment we’re in, especially the moment that has been kind of accelerated by digital technology as I discuss a lot in the book, is dredging up and presenting us with a lot of fundamental questions about what it is to be a human being and just what is this universe in which we live?

And there’s an irony, as I say in the introduction, that the great works of the canon, the intellectual inheritance of Athens and Jerusalem is being most maligned precisely when it’s most needed. This is what these resources exist for.

Brian Smith:

And by people who should know better. By people who should know the best.

Spencer Klavan:

In fact, I think in some cases by people who know exactly what they’re doing because of course depriving people of the resources to take a certain degree of ownership over their own spiritual, psychological, political formation is a really good way to present yourself as the savior of the world, right?

Brian Smith:

Absolutely.

Spencer Klavan:

And so the reason it’s a how-to, despite the kind of ostensible grandeur of that title, the ambitions of the book are actually much smaller than you might expect upon cracking the spine. People who open this book expecting some political program to “Fix all Problems,” capital F, capital P, right, those people are going to be disappointed because what you’re going to be finding instead is a selection and offering, as I said, of ways of thinking about these fundamental questions, “Who are we? What are we made out of? Where are we going?” That are time tested, rich and for you. And that’s what I’m offering here.

Brian Smith:

So one thing that really strikes me in what you just said is, maybe giving it to you as an anecdote, so in graduate school, I feel like anytime you’re in graduate school for great books like both of us were, I did political theory, you did classics-

Spencer Klavan:

Right.

Brian Smith:

There’s a sense in which you’re surrounded by technicians often. Now I was very fortunate in that I had professors that were not technicians, Patrick Deneen, Josh Mitchell, others, but there’s very much a sense of as you professionalize, you’re going to read these books to understand the discourse around these books and what falls out of that kind of training and education I think quite often is the very thing you’re pointing us toward, which is: How do these books form our souls? How do these books offer that guide to life? How might they simply show us, “Don’t go down that door, that’s the Nietzschean door, [that’s a] bad door,” or things like that. So is there a sense in which any of your graduate school experience or your exposure to the academy before you ran screaming informs this book? I mean you don’t explicitly say this, but I had the suspicion that some of this has to do with the reaction to how academia does things.

Spencer Klavan:

Yeah. That’s well put. I’m like you in that I had a lucky grad school experience. And I always feel really responsible to say this when I launched my critique of the academy, which is severe and structural because I do believe that in America especially, but in Europe as well, the academy is suffering a real kind of identity crisis and in some ways a kind of an implosion self-destruction. And so I always feel like I need to put the caveat on there that I too had wonderful instructors who didn’t view these texts as kind of objects of power to wield or certain brand mystique that they could attach to their own person, all these ways that you see people misusing, I think, the great works, but that matter of technicity that you identified is so important. And one reason why I did not end up pursuing a career in academia is I feared that the technicity would become the point.

For people like you and me who devote lives to the life of the mind, the pleasure of that technical expertise is very great. And indeed the temptation to pride in it is also very great. It becomes very easy to forget, especially if you seal yourself off hermetically in a world of technicians, that all techne, all kind of practices of doing something well and with craft are in service of something. They are handmaidens. They’re not goals.

And one thing that immediately became clear to me as I started the podcast and also as I wrote this book, is I got a lot of people who come up to me and say, “Oh, you’re really smart. I’m not that smart.” And by that they didn’t actually mean what they were saying. What they meant is, “You’ve got all these tools in your tool belt.” And that’s actually true. I don’t want to deny that it takes some doing to kind of unpack a paragraph of Aristotle. But if you’re doing that and if you’re devoting your life and investing the kind of human capital that you’ve been given by God as a person, then you ought to be doing it for someone and for something.

Brian Smith:

Exactly.

Spencer Klavan:

And that’s what I think is lost in our approach to these books a lot of the time. And in some ways, it’s a way of neutralizing them and diffusing them because what they have to say is so explosive and in some ways so contradictory to the going conventional wisdom of just our modern gurus that if we look at Aristotle as simply a kind of animal in a jar or a bacteria in a Petri dish that we can isolate and study, then we never have to risk exposure to his claim, for instance, that man is a political animal. Imagine if you actually had to consider that as a truth claim that could or could not be true of you, what would that do?

Brian Smith:

Yes. Well, it becomes news in that regard of sense.

Spencer Klavan:

Totally.

Brian Smith:

These are not just sort of scientific claims. The news has arrived and you’ve got to decide how to live with it.

Spencer Klavan:

Right.

Brian Smith:

So sometime in graduate school, I remember stumbling on the statistic, it was reported in the Chronicle of Higher Ed that something north of 60 or 70%, depending on the field, of graduate students in the humanities and social sciences would suffer severe depression during the course of their studies.

Spencer Klavan:

Geez. Yeah.

Brian Smith:

And at a certain point, just in a PhD program in politics, I started to notice that my colleagues were sort of divided selves fairly often. They wanted to apply these theories in a very tactical way to other people and yet it couldn’t help but infiltrate their life.

Spencer Klavan:

Yes.

Brian Smith:

So I’m reminded of this passage in one of J. Budziszewski’s books where he says, “I set out to prove all morality was essentially arbitrary and that our choices were equally arbitrary and that all of our emotional states were equally meaningless. And yet I loved my wife and I loved my children, but this theory couldn’t help but bleed back in to the way in which I treated my wife and my children.” He said that the despair from that was actually the moment that he turned and went in search of something that was better, that he could actually wager his life on.

Spencer Klavan:

Two passages come to mind, one that you and I just recently shared when we were at that conference on Brothers K. Dostoevsky in that novel has a wonderful moment between Alyosha, the kind of hero, and not his beloved mentor, Father Zosima, but actually a more severe kind of almost administrator in the monastery, Father Paisi, who he thinks doesn’t really like him very much, but he pulls him aside and he says, “Men think that by isolating the technicity of the world, the science of the world, they’ve reduced an objective truth about morality, they’ve reduced virtue to mere fantasy. But the people bear witness to the impossibility of that view and their own hearts bear witness also.” I mean I think this is something very much in evidence and really important, especially in an era where one’s convictions, one’s gut reactions to things, one’s subjective “experiences” of things are written off as totally without worth or merit.

You take the true claim, which is that your first impressions of something might need revision, they might need you to step back and consider them and understand them and we’ve advanced that to the claim that actually your loves, your aspirations, your virtue, your attachments, these are illusions. They’re after effects, they’re byproducts of what’s “really going on,” which is matter bouncing off of matter essentially. And since it’s impossible to live that way, you do end up in a situation where your own life kind of bears witness against your philosophy, which is a profoundly neurotic place to be.

Brian Smith:

Exactly. And you said two passages.

Spencer Klavan:

Oh you are right. I’m sorry, I got so wrapped up in the Dostoevsky. The other one in C.S. Lewis, That Hideous Strength, which is the conclusion of his Space Trilogy, by far my favorite fiction that Lewis ever wrote. I know people know Narnia and love Narnia, but that third installment of the Space Trilogy for me is his master work. It’s basically an artistic enactment of the abolition of man. It’s deals with a lot of these questions of scientism and materialism. But there’s a moment at the end, very small spoiler alert, that one of the guys whose whole project has been to reduce human life to determinism, it’s all kind of neurons firing in the brain and fate just kind of carries us where it will because we’re a machine, he finds himself overtaken at the last moment like one of the denizens of a fairytale city who’s turned to stone by a curse that actually was all real all along. The things he was playing with in his kind of neat syllogisms were deadly serious. I think that’s a situation we find ourselves in a lot as well.

Brian Smith:

Yes. No, I think those are very apt quotes for this problem and your book is filled with many others, but I want to drag us back to that because we could talk about other stuff like this all day long.

Spencer Klavan:

Yes. Let’s talk about the book.

Brian Smith:

So you list five crises and given that you sort of start and end the book by circling around this, I wanted to focus on what I take to be the most foundational one, which is over our sense of reality. What is this crisis? Why do you think it matters?

Spencer Klavan:

Yeah, one thing I do in the book throughout is you sort of start with a news cycle moment that everybody’s familiar with or remembers from the last couple years. And then I unravel that into, “Well, here’s 10 other news cycle moments you probably forgot about from the last 20 years that all kind of point in this direction. And here in fact is this long history of dealing with this very problem.” And the one that the book starts off with is the Metaverse, virtual reality essentially, immersion into virtual reality, and this way that a lot of our elites have of talking as if the distinction between my actual daily experience of life, which I would think of as reality, and a computer generated simulation that stimulates the brain in such and such a way, that distinction is really quaint and kind of outmoded and superstitious.

And so it’s really not to get down on Mark Zuckerberg or on Meta or whatever, Facebook and so forth. It’s rather to use these statements and these product launches as ways of uncovering a real philosophical conviction. Once you see it, it’s like putting on the green glasses, you see the Emerald City, you can see this everywhere. And I think that this speaks to a conviction that some things are very, very true. We have still in our society, because it’s impossible to live any other way, a desire to claim to reality and to truth and also a total lack of grounding of where do we root that. Is reality the images that my neurons cough up on the screen of my eyes? In which case the metaverse is just fine as a substitute for reality. It’s not even a substitute, it’s just an equivalent alternative that I happen to find more pleasurable. Or is reality some other thing?

And if it’s some other thing, is it the idea of the good? Is it my physical experience of the world, right? Before even asking the questions, I mean the first section of the book, I don’t even begin to ask the question, “Well, is reality abstract truth or is it emotional truth?” Or whatever, get into that much later. As you say, this question is threaded throughout the whole book, but really the first question and the fundamental question with which western philosophy proper begins is, “Do you believe that somewhere in some realm of experience there are things that are true no matter who says so or who says otherwise, things that you can’t by feeling differently about them, things that you can’t wish or imagine into existence and that you will never be free of even if you blind themselves to them?” You take Plato’s Cave. I say in the book, “It’s the original metaverse,” the idea that you are already in some sense being blinded by the sophists that run your culture and by your own presuppositions.

The point of that story is our third person view. The reason it’s a revealing story is because it draws back the camera so we are looking from the outside right into the cave and we’re able to see that even though for the people shackled to the walls of Plato’s Cave there is no reality other than this, there is in fact an external, truer reality outside of that kind of fantasy. And that matters even for the people who believe in the fantasy. Just as we were talking about earlier, if you invent a world where your emotions are part fictive and where your moral convictions are arbitrary, you can construct that world in speech all you want, but the reality of actual moral truths is going to come crashing down on you one way or another.

And that’s where we start to see the very tight and intimate connection between these kind of dismissals of absolute truth, of final reality and violence. Because if there is no absolute truth, you think you’re kind of being let free into some glorious future where everything is whatever you want it to be and nothing is either good or bad, thinking makes it so. But of course the only way then to determine what’s going to happen is through an exertion of power, through the Thrasymachus’s claim, that the power is basically the determiner of justice.

Brian Smith:

But to be even more dark within that, I think there’s an element of, “I can prove I’m really real by killing.”

Spencer Klavan:

Right.

Brian Smith:

Which becomes a theme in Russian literature like we’ve just read. It becomes a reality in ideology in the 20th century. But there’s also this other element which you draw on throughout the book, which I think is very interesting, this idea that there’s an explanation for why the dramas that we watch even have gotten so vacuous. In our denial that there is a reality and consequence, this multiverse theory where we can reinvent characters’ histories in a completely arbitrary way and we can take what’s seemingly were meaningful moments, Thanos snapping his fingers, half of everybody dying, and just undo it in a heartbeat and then nothing has any weight. How does this relate to Plato’s Cave? Say more about that because I want to hear that connection drawn a little bit more tightly.

Spencer Klavan:

So this is where you do have to start to ask the question, “Well, okay, if you intuitively feel that in fact there is such a thing as the real and it’s not purely arbitrary or purely capable of being constructed at will, then where does it live?” And I think the most readily available answer for most people to what is real is stuff, physical objects. They are real. And there’s an appeal to that answer of course, because as Aristotle observes our sensory experience of physical things is the most vivid and immediate experience that we have. And it takes some doing… What is purest and realest in actual fact is in some sense the last thing that we make our way toward if we ever get to contemplating, “Okay, I see a brown table and a brown cow. What is brown?” And as you reach those levels of abstraction, Aristotle thinks, you also begin to hone in on things that have more integrity as entities than just the physical objects you see in front of you.

And yet crucially, reality only ever comes to us mediated through our senses. So it’s very easy to make this mistake that, “Well, there’s only matter, right? Matter is what is real.” And basically my argument about the multiverse is that as an artistic failure, it is kind of the final breakdown of materialism as a philosophy. And I think everybody’s looking for the grand victory that’s going to stop people from thinking that the world is just atoms, you’re going to be able to prove such and such a thing. And one thing I argue a lot in the book is that these aren’t the kinds of questions that subject themselves to scientific proof. If you believe that matter and scientific questions are the only things that exist, you’re going to trap yourself in a little tightly sealed box with no opening because there then will be no mode of accepting any kind of truth that is other than the one that you’ve already determined for yourself.

And I think the emptiness of our art as it becomes more and more inspired by a kind of neo-epicurean philosophy of pure matter, of atoms bouncing off one another, is itself not a proof, but evidence, an indication that science is basically trying to lift itself up by its own bootstraps. Plato’s claim is that the effort to extract truth from your day-to-day experiences is already a difficult enough task, is already something that requires long years of study and effort and perhaps even divine intervention. And the multiverse claim is essentially that, “No, in fact the things that you can see and touch are basically the realest possible thing, the only thing really that we can count as real at all. And other than that, it’s basically just shadows on the wall. It’s just fantasies that’s just throwing these up.” Those fantasies are empty. If, in fact, you believe that that’s what you’re doing when you’re telling stories, you’re just pressing certain buttons in the brain, you’re just confecting certain shadows on the wall, then you are going to end up with stories that don’t mean anything because they don’t refer to anything outside of themselves.

Brian Smith:

Right. And I do also wonder whether there isn’t an implicit link here between the people who find these stories compelling and the people who, having embraced the idea that matter is everything, begin to doubt their own loves, their own affections toward people, places, things, institutions. And so this is a society for whom all the solid things melt into air. And yet I also think that there’s some hope in the sense that the shows and the forms of art that rebel against this, that say, “Reality is not just the evidence of your senses,” the ones that don’t try to beat you over the head with this fact seem to be the most successful ones. I think of a show like Yellowstone for instance. This is a show about very intense affections and deep historical sort of ties that people are not willing to break and to assert something real beyond the senses.

Spencer Klavan:

Another show that comes to my mind is White Lotus and-

Brian Smith:

Oh yeah.

Spencer Klavan:

There’s this dark comedy. It’s really about sexual relations and power relations in an era of woke morays. And what I love about this show, although it’s kind of viewer discretion advised in a big way, what I love about it is that rather than perform a little morality play where all the people with the wrong ideas get theirs, the show creators have simply depicted the problems and consequences of woke sexual ethics as in fact they are. And there’s no grand scene of repentance where somebody makes a big speech about, “This is my philosophy,” but there is a sense that ideas have consequences, philosophies have consequences. And if we’re going to show these things on screen, to be fully honest about them, we can’t just depict the fact of their existence. I mean this is something that I think both conservatives and liberals get wrong about the culture wars, which I talk about also in the book.

We think of this as some sort of debate about, “Is art going to just show anything goes? Are we just going to be totally free to put anything on screen or are we going to side with those nasty conservatives who don’t want you to be able to show certain things, want the Hays Code back and so forth?” And what we don’t realize I think is there’s no such thing as art that is anything goes. Art inherently contains a moral outlook on the world because the reality of moral truth is actually inescapable. It’s impossible for us to think without it, the very forms, the shape of our mind.

Brian Smith:

We need rules.

Spencer Klavan:

We need rules. Yes.

Brian Smith:

It reminds me of an essay you once wrote for us on video games.

Spencer Klavan:

That’s right. Yeah, rules and the good. We need ideals, we need objectives, we need the telos. And so really what we’re in is a fight over whose rules, whose vision of reality is going to be publicly honored and awarded and more regularly produced in these big movie houses. And the ones that are most on offer are kind of epicurean nihilism. There’s million universes, nothing you do matters except that we be kind of peaceful and pleasurable amongst ourselves. And then there is this new strain, you’re right, of art that is not preachy, it’s not a conservative tractate and in fact many of the people that are making it are not traditionally speaking conservatives, but that simply recognizes the total inadequacy. I mean look, I just went to see Avatar, Way of Water, Part Two, This Time It’s Wet. And here’s James Cameron, a guy who’s made movies that I really like.

I think Terminator 1 is one of the great movies, a great pop art of the last few decades. But this guy spent 10 years on basically a roller coaster ride. And what has he got to say? I mean this is just this kind of wonder of science, earth mother Gaia, “It’s all energy bouncing off of atoms, man,” is so played out that even when it makes money at the box office, people kind of know they’re being served thin gruel. And that’s kind of the hope I think you’re talking about. We are still in a situation economically where people feel incentivized to slap another cut of raw meat on the table for the Lumpenproletariat to consume. And yet everybody knows this stuff is inadequate, that in fact shows White Lotus, shows like Yellowstone, shows that kind of put the moral universe out in front of your eyes as if it had urgent reality are becoming more popular for exactly this reason. They feed the soul better.

Brian Smith:

So I want to shift gears a little bit and talk about one of your best phrases. I mean the book has a lot of great phrases and sort of pithy encapsulations of really complex thoughts. My favorite, the aptest, I think is something you call Soul Dysphoria and in that section you explain a bunch of things, but you link body positivity, this whole movement and the phenomena of Insta photoshopping perfection. And you say that they have a common outlook and I guess my question is, so what’s common to them? Why are they popular? What do they tell us about who we are right now?

Spencer Klavan:

So near the beginning of that chapter… First of all, I’m really glad you noticed soul dysphoria because I thought, “Oh, that’s just a subhead.”

Brian Smith:

I circled it.

Spencer Klavan:

Nice. Well, okay, so let me try to work into this. Near the beginning of that chapter, I say the kind of pop wisdom, pop psychology is that the soul is kind of extraneous, that it’s kind of an appendage, that it’s a holdover from certain kind of unclear evolutionary accidents that cause us to feel things like love and emotion, but really all we’re really doing is just surviving physically. So given the fact that we have these bodies, why do we need to have thoughts and souls and consciousness at all?

But in fact, since as we’ve been discussing now at some length, in fact since love and desire and the soul truths are realer in some sense and more urgently real than the kind of physical facts that follow upon them, the real question that everybody has always struggled with and that secretly we’re still struggling with now is not, “Why do I need a soul?” It’s, “Why do I need a body? If I am this being that is capable of making contact with abstracts truths and with love and with all the high, noble things that you and I have just been talking about and have talked a lot about off mic as well, then what’s the point of this meat sack that’s hanging off of my divine spark?”

One of the things that pulling back the camera on that does is it helps to have a little bit of charity and empathy for this problem. This is an old problem. It goes back not necessarily, I don’t think actually to Plato himself, but to some of Plato’s interpreters inside and outside the early Christian Church. Plotinus is somebody that I mention a lot in the book in this context. And if that’s true, if the body is kind of an imposition or a fall or a descent, then it follows that the best thing we can do with it is just mold it to our desires and to conform with our souls, our divine spark, our essence, our identity, whatever word you want to call that, to mold it as directly to conform with our desires as possible.

And that is the connection which is a very central and old human impulse between the internet avatar, the airbrushed, photoshopped picture, and the body positivity movement. They’re all efforts to reconfigure the world of the body so that it matches people’s aspirations, the way they think they ought to be, the thing that they think they somehow are secretly. And the great Christian and pagan truth, the height of Athenian and Jerusalemite wisdom on this topic is that you are not actually going to float away from your body into the true, the good, and the beautiful. You have a body because it is the medium in which the true, the good, and the beautiful is best expressed. And that’s the mind flip I think that the great texts can give us on this one.

Brian Smith:

Well, and without this insight, I think it is relatively easy to yearn for a technological solution to the frailties or the dysmorphias that we have with our own form. I mean this yearning, which I think is expressed in science fiction, for uploading into a place where we can just define our own avatar, on the one hand, anyone who’s played a role playing game or played a computer game where you create an avatar of some kind I think can sympathize with this. “Wouldn’t I wish to be a thing I am not?”

Spencer Klavan:

I want to look like my LensAI profile picture. It looks better than I do in real life. It doesn’t have the aches and pains that I have. Yeah, totally.

Brian Smith:

Right. And people who hit the gym, who lift weights, we’re struggling against the limitations of our bodies with the weight we can’t get rid of. But in a way there’s something I think which you get at, that it’s more human to embrace the intersection of body and spirit and live with those struggles and find things that give us traction for understanding that, as in great books, as in deep conversation with friends who share similar struggles. Without those touchpoints, it makes sense that some of the weirdness we’re inhabiting right now… I do kind of wonder, in the world of no Covid ever happened, shutdowns never happened, would the extreme anti-body sort of movements that we have right now have quite as much traction, if people had not been cut off from one another, had been left in the face-to-face encounters that you cannot avoid as a teenage person? And you think of the biggest number of these people are, it’s teenagers who have been most isolated and found these online communities.

Spencer Klavan:

Well, there is a moment in the history of this problem, this question in modernity that I found really striking and that was a piece by Andrea Long Chu in the New York Times. This is a male to female transgender person, making the argument that the point of bottom surgery wasn’t happiness and that it wouldn’t actually necessarily cure the depression or the discomfort, “Because desire and happiness are unrelated agents.” This is the line from the piece. And to me, that is really the heart of where this is actually going. That’s at least a level of honesty about what actually happens if you disembody yourself or if you make your body into a plaything to kind of respond to your whims. The terrible bind that we’re in… I mean it’s a fallen world, no question about it. But the problem is if the material world including your own self is just kind of raw material to be dominated, then you’re not actually in a relationship with anything, including yourself and you’ve in fact destroyed the possibility of aa relationship.

So you will just be a bunch of diodes just kind of beeping at will haphazardly in the end, right? That’s basically what we are without bodies and our pushing up against something physical as you describe in the gym, which is a great example. There’s a reason that people go to the gym now as a kind of reaction against this trend. It’s precisely because making contact or having driven home to you that there is kind of a hard surface against which you’re pushing up against. Lets you know you’re not alone. Otherwise, it’s lonely being a divine spark. There’s really no to go with it.

Brian Smith:

What you just said makes me think this entire movement that we’re talking about, it’s the rejection of that Augustinian understanding that we are intentional desiring creatures and by severing that understanding, we’re casting ourselves off, we’re adrift. Because if you understand yourself as, “I am a sinful creature,” or maybe you don’t even understand yourself as that to get this point? If you understand yourself as defined by the things you are attracted to and love, that at least opens the door to certain kinds of understanding through the body that the denial of that, that chosen severing of desiring from happiness. Once you make that leap, it becomes very hard to reach this sort of person even through art, I fear. Historically, I feel like novels and poems and film and music can hit us where we don’t expect it, not because they’re attempting to crush our intellect, our intellectual defenses, but because they open us to a kind of experience in our hearts and in our longings that maybe we didn’t see that way before.

Spencer Klavan:

Wow. Yeah, that’s very beautifully put.

Brian Smith:

Thank you.

Spencer Klavan:

Something I read after finishing the book that has been a little mantra with me lately is this Simone Weil observation, and I’ll probably butcher it because it’s one of those things I’ve repeated in my head so many times that I feel like I probably have my own personal version of it that I don’t want to lay that on Weil, but she says something to the effect of, “Love is a form of attention and attention is a form of prayer.” And somebody that really affected me deeply this year is Thomas Traherne, this English mystic, undiscovered for hundreds of years, and then resurrected in the early 20th century, I think, whose whole thing is about the beatific vision and the question for Weil and Traherne both I think is your actions imply a highest good.

They imply a love even if you don’t… And we have this kind of ridiculous, cheapened idea about the word love that it means butterflies in your stomach. Those are beautiful things. It’s beautiful to have a crush on somebody, but if what you think is that you are not loving if you’re not experiencing those things, then you don’t understand yourself. Beatrice says to Dante, “Never creator, nor creation was ever without love.” And everything that we do, every action that we perform by its inherent logic implies some goal, some good. And pursuing that goal, paying attention to that goal, devoting yourself, giving of yourself to it is love.

And when you are mindlessly scrolling, I’ll pick my drug of choice, Twitter, it could be Instagram, whatever, when you are lying in bed for the third straight hour, that you hit snooze on your alarm, whatever, you’re not not loving, you’re not in a neutral space of, “I don’t worship…” And people think they don’t worship anything, they think whatever. No, you’re just giving yourself over to another kind of worship, another kind of love that you have less control over and self-awareness about and really the reason that this body problem is so pernicious is because it holds out this fantasy that you can choose the structure of your loves or have no loves at all. You can just be kind of a free floating entity that’s not tied to or pulled toward anything and that ain’t going to happen. We exist in states of love at all times.

Brian Smith:

We may not like those loves.

Spencer Klavan:

No.

Brian Smith:

We may not be quite aware of them as you say, but they’re really there. So I want to shift gears again. We’ve talked a bit about scientism already. I mean I don’t even remember you using the word scientism anywhere in the book, but there is this pervasive notion you talk about, of science outstripping its proper boundaries in our imaginations. Quick quote from you, “We call upon science now to explain not just how the physical world works, but how everything, everything works and why.” So I’d just like you to riff a bit on how you think this vision of science as a sort of ideology has added to the distortions we’re experiencing and this phenomena we’ve been talking about.

Spencer Klavan:

Yeah, it’s interesting. I’m recording the audiobook now and I’m trying to remember if I’ve said the word scientism at all because it’s a word that I use all the time. I’m a podcaster and so forth, and in so far as it goes, I think it’s a very good descriptor of what we’re dealing with when we talk about this sort of thing. But no, I didn’t use it in this book because I wanted people step by step to really see what we’re dealing with. It’s like one of those things where the two young fish are swimming by and the old fish says, “How’s the water, boys?” And the young fish turns to his friend and says, “What’s water?” I mean this is what we’re up against when we talk about something like scientism. It’s so pervasive and really what it is is the swelling up of what the ancients would’ve called natural philosophy to swallow every other discipline, branch of knowledge, way of doing things.

And of course natural philosophy is an ancient good and noble way of studying the world. It has to do with the things that behave according to phusis, which is the Greek word for the things that happen spontaneously or according to fixed rules that are inherent in the things themselves. So it is in the nature of a stone. It is in the phusis of a stone to fall to the ground when dropped because objects with mass attract one another, right? These are things that even in describing them, you can freely and happily blend language from Aristotelian metaphysics with kind of Newtonian mechanics and even on into quantum physics. This is a seamless tradition in that respect.

Of course, there are many profound revolutions in science, but as a practice, as a human practice, it retains, I think, its noble character. What happens really to cause the neurosis that we’re struggling with is the development of the idea that that form of knowledge, knowledge about spontaneous, rule-based behaviors in the natural world is the only form of knowledge and this is where the reality thing becomes important again. This is the only kind of truth. This is the only way that we can know things is through experiment and verification and therefore the things that exist are physical things and that’s that. There’s nothing else to them. And I don’t think I’m exaggerating when I say that even if this is not what people believe in their conscious minds, we all breathe this in like oxygen.

Brian Smith:

Oh absolutely.

Spencer Klavan:

Yeah. We all know that. We all feel in our bones that that must be true. And one of the things I try to show in the book is that was never proven. That was not a thing that happened because somebody advanced some brilliant argument, that science is the only kind of truth. It’s actually something that happened as a matter of circumstances. The church lost its claim on authority and as truths began to come to light that science could reveal that theological speculation, suddenly we became very addicted to this kind of knowledge because it’s powerful and it’s reliable. You can always get it if you do it right and you can do things with it that make you very strong. And this has now become our idolatry, our way of thinking about everything, the whole world, and it is not strong enough to sustain that weight.

This thing where we now say, “Trust the science,” where Dr. Fauci becomes the defacto governor of every state in America for two plus years, this is obviously a disordered way of living and of governing ourselves and it arises directly out of this unsustainable effort to reduce all forms of truth to scientific truth because some things don’t have a scientific answer, some very important things like moral questions, right? “Okay, the virus is this contagious. Should we therefore shut the country down?” And what we’re doing now is we’re trying to find some way of rooting our answers to that question in science, as if we could empirically prove what the right answer is because that’s the only way that we think we can know anything. And really in this respect, demoting science will be the best thing that ever happened to it out of Covid.

Brian Smith:

Right. Well, because the only logic that science can lend itself to in terms of an ethical theory strikes me as something like a kind of crass utilitarianism, that you’re struck with okay, so if our postulates are health and bodily integrity are the goods we’re aiming, at least a sort of way understanding of that, then you can kind of understand how you get to these judgments like we’re seeing again now of, “Oh yes, we need masks again because of the triple threat of viruses and the flu and Covid version X,” I don’t even know what we’re at right now there. And so there is this oddity going on. You knew it was going to happen, there’s a line from Walker Percy about this.

Spencer Klavan:

Oh, here we go. Good.

Brian Smith:

Yes, here we here, right? You had to expect it.

Spencer Klavan:

Somebody should play a drinking game at home with this podcast, how many times-

Brian Smith:

Exactly. But he had this notion that what is happening with scientism is this seeding of our sovereignty to they, the experts and that something is lost in that. When we allow this notion that scientific expertise can claim sovereignty over the moral choices that define who we are and that our insanity around this shows up in various ways, that people in their yearning to have that certainty, which we might find in the gospel, we might find it in the way we let our faith shape our lives, if you don’t have that, it’s really easy to sort of say, “Well, trust the science. The experts are telling us this is the right way to live. And so we just have to do is we’re told.”

Spencer Klavan:

Yes, it’s very easy to find this argument made explicitly in the works of Wilsonian progressives.

Brian Smith:

Yes.

Spencer Klavan:

Since the era of the progressive, this has not stopped being an express argument, that democracy basically is inefficient, that it doesn’t work, and that the best thing to do is to do that outsourcing that Percy’s talking about. Let me give an example that may seem a little bit out of left field, but that I think is really telling and that is this respect for Marriage Act that just passed. Irrespective of the side that one may be on about gay marriage itself, it suddenly occurred to me that this whole thing now where everybody wants to codify certain Supreme Court decisions, and it all happened after Dobbs because it turned out that you could actually overturn a Supreme Court decision, right?

Brian Smith:

Shocking, right?

Spencer Klavan:

I mean it’s funny, but my colleague and boss, Charles Kesler, who edits the Claremont Review of Books, made this point that the problem with Dobbs was not just how sacrosanct abortion was in the leftist project, it was also that court constructed, substantive due process rights are the whole architecture of the progressive universe. And if one of those planks can be just taken out, then any one of them is vulnerable. That’s why Clarence Thomas’s concurrence was so scary, even though he was the only person to say, “Now we need to revisit all these other decisions.”

Brian Smith:

He said the quiet part out loud.

Spencer Klavan:

Exactly. But it’s true. If substantive due process is a fiction, which I think it is, then all of these things are vulnerable and they’re vulnerable even more fundamentally because the courts aren’t supposed to be making these sorts of decisions, which is maybe another way to say the same thing. Anyway, this funny thing then happened where Democrats were like, “Well, what we really need to do now is write laws in Congress that codify these decisions and these principles and then they’ll be safe,” to which I thought, “I have news for you about Congress. We vote in new people and they also can write new laws and can overturn these.” And it’s like everybody wants a final answer to these culture war issues. That is one side definitely won, and that’s that. But a lot of these issues, that’s not our form of government. We debate these things together, face-to-face, and we come up with compromises that we enact locally and people, they would rather have, in many cases, I think the definitive pronunciation of the experts.

Brian Smith:

And I think there’s something tempting but ultimately flawed about this. And not just about politics, but even more broadly speaking. I stop myself all the time… This is another way that scientism creeps into your head. I try not to talk about human things as problems that can be availed by solutions.

Spencer Klavan:

Right.

Brian Smith:

Because almost nothing in human life that isn’t a medical condition is actually a problem in that way of, “I can find a technical answer that will fix this.” I mean, yes, you can set an alarm to get yourself out of bed, to use your example earlier. You can set five alarms, you could do the Jocko thing and just stagger them on top of one another, but you still have to make the conscious choice of will to get up and go lift heavy things if that’s how you’re ordering your day and how you have aspired to order your day.

Spencer Klavan:

You can wake up and turn off the five alarms just as easily you turn them on.

Brian Smith:

Right. And yet all the time we use this problem-solution pairing, and to get back to the political thing, as if we are not tomorrow going to find another challenge that our hypothetical final solution to this great problem has caused. So the things we do to ameliorate the challenges that are in front of us tend to create a new set of challenges. And this is human life. It is an unending series of this sort of thesis-antithesis cycle. Then you talk about the Polybius regime cycle in the book for a little bit, and there’s a very similar version of this sort of dynamic.

Spencer Klavan:

Yeah. And I’m so glad you mentioned medical problems because the danger, the thing that I am trying to train myself out of now is medicalizing regular phenomena, and that’s in terms of language of psychiatry or the language of actual physical ailment. You do this all the time, right? “Oh, I had trauma.” “I struggle with or suffer from depression, suicidality.” I mean these are not diseases. They are spiritual struggles and we should talk about them that way.

Brian Smith:

Yes, absolutely.

Spencer Klavan:

Yeah.

Brian Smith:

So maybe this is a good way to draw us toward the ending I had in mind, which is I wanted to end by talking about love, which is to the degree there’s a “solution,” I put it in air quotes, present in your book, you talk about love, you talk about the ordering principle, and I just want you to talk a little bit now about how love points us back to the real. How does it help us out of the fixes that we perpetually find ourselves?

Spencer Klavan:

Yeah. It’s interesting that just kind of naturally, we’ve been edging up upon this very thing as we start to talk about it’s going to be a daily grind. You’re going to wake up and you’re going to have to make the decision to get up in time to make breakfast for your kids, to go to church, to read for 30 minutes a day, whatever. You’re going to have to make these decisions afresh each time. And that’s because love is love of the particular, and by the end of the book, I even say even something as noble as Save the West is a kind of unhelpful aspiration if it’s not embodied in the here and now, in the fullness of the here and now, not just this kind of reductive what’s the physical reality around you, but the whole experience that you wake up every day and are immersed in. Yeah, this is my answer, this is my solution.

How do you save the west? Love. But you have to write a whole book about it because you have to earn your way to it. You have to earn your way to an understanding of love that isn’t just going to boil down into nice, fuzzy feelings. And what begins somewhat slightly perhaps at the very beginning of the book, I drop in this Iris Murdoch quote, she’s one of the great disciples of Plato in the 20th century, and she says, “Love, and so art and morality, is the extremely difficult realization that something other than oneself is real.”

Brian Smith:

It’s a great quote.

Spencer Klavan:

It’s a beautiful line. When you come down to politics, people feel immobilized by the fact that there are all these sort of structural crises going on at the level of our national government and indeed the world. And those narratives, those crises are in some sense designed to immobilize you. You are not going to muscle the cycle of regimes back into place, right?

Brian Smith:

Absolutely not.

Spencer Klavan:

No. And it may be that you have some role to play in ameliorating those big problems, but you’ll find them in the particulars of your human sized life because that is where you are capable of doing love as a verb. This is where if a man says he loves God but love’s not his brother, he is a liar. Why is that? Well, because we’re very easily swayed into making God into the kind of amorphous jelly of our particular preferred abstractions. God is love, God is goodness. All these things that God actually is, but there’s a reason he took on flesh, right? There’s a reason that Christmas happened. There’s a reason the cross happens, and that’s because we are actually more complete, more noble, more elevated at the size that we are at. Man is made in the image of God and this is where goodness and joy take place, on our earth, in our creation. They take place in the daily political and personal struggles that people wake up and choose to do out of love of the good and embodiment of the good, and the realization that someone other than oneself is real.

Brian Smith:

And that I think particularly, as we are recording right before Christmas-

Spencer Klavan:

Yes.

Brian Smith:

But our audience won’t hear this till after, but I think it’s a good place to stop. Thank you so much for joining me for this hour and talking about all these great things. Spencer’s book will be out at the time we put this podcast up and it can be bought anywhere you buy books, so please go out, get yourself a copy of How to Save the West by Spencer Klavan. I’m Brian Smith, and this has been another episode of Liberty Law Talk.

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts, and please visit our journal at lawliberty.org.

Uncovering Who the Nazis Really Were Apr 10, 2023

Brian Smith:

My name is Brian Smith, and joining me today is Samuel Gregg, a distinguished fellow in political economy at the American Institute for Economic Research. A contributing editor at Law and Liberty, author of numerous books, including most recently, The Next American Economy, which we discussed here on the podcast in October. Sam, thanks for joining me.

Samuel Gregg:

Brian, thanks for having me on. Always good to be with you.

Brian Smith:

So, recently you wrote an essay for us that’s been receiving a great deal of attention. Some of it very surprising from people like Joe Scarborough. The title of this piece is “When a Classical Liberal Confronted Nazi Terror,” and the piece focuses on Wilhem Röpke, a German economist that’s not exactly a household name. And focuses on a speech he gave in February, 1933, warning the German people against embracing the Nazis. Can you give us some background on Röpke and the speech?

Samuel Gregg:

Well, Wilhem Röpke was one of the most important free market economists, certainly in the German-speaking world, and arguably in the 20th century. So he died in 1966, which is quite a while ago. But his life was very much occupied with the… Let’s call it the traumas of the first half of the 20th century. So he was born in Germany. He came from what you’d call an upper middle class background. Very much steeped in medicine, academia, and in his case, the Lutheran Church of Germany. He was born in 1899. He fought in the First World War as a soldier on the western front, very young man, obviously, was a decorated combat veteran. Comes back to Germany, does a doctorate in economics. He becomes the youngest professor in Germany at a very early age in the early 1920s.

And as you know, Germany is obsessed with professorial recognition and the academic world. So when you become a full professor at the age of, I think it was 26, in Germany, that’s kind of a big deal. Now, he was, as I said, a free market economist. He wrote a lot on things like monetary policy, business cycle theory. He was advising the German government in the 1920s on issues ranging from how to deal with the Great Depression, to how to deal with questions of reparations, which, of course, Germany had been subjected to after the First World War. But he was also very difficult to pin politically speaking, because in one sense, he’s clearly a classical liberal as we would understand that today. So he believed in limited government, he believed in constitutionalism, rule of law, a dynamic market economy. And all those things, certainly in Germany at the time in the 1910s and 1920s, were not necessarily the working assumptions of most political thinkers and people involved in politics at this particular period of time.

But at the same time, he, like a lot of other pre-market economists at the time, is very interested in what you might call the cultural, moral, and institutional foundations of free market economies and free societies, in a way that’s, I think, somewhat lacking in our own time. Most economists don’t talk about those sorts of things. So he’s not just a very distinguished economist. He was read everywhere in Europe. He’s also a political economist in the sort of tradition of someone like an Adam Smith.

Now, when it came to German politics, he was extremely concerned by the rise of the hard left, and particularly, of the hard right in the 1920s. And he wasn’t just concerned about them because of their bad economics. He was also concerned about them because he saw these groups as rejecting not just what we would call liberal order or whatever you want to call it, he saw them as rejecting the essence of Western civilization. And so he was, I mean, extremely rarely for a very distinguished academic. He would write in newspapers. He would write for more popular audiences at a time when academics generally didn’t do that.

And so he got very worried in the late 1920s by the rise of the National Socialist Movement. And he saw their rise coming before, I think, a lot of other Germans did. So as early as the 1930s, which is really 1929, 1930s, when the Nazis make their breakthrough into the Reichstag, they’ve become the second biggest party after the social Democrats in the late 1920s in the Reichstag. And Röpke had been warning about these trends for years. And he even in 1930 elections, he actually wrote election pamphlets telling Germans, “Do not vote for these people. They are seriously dangerous. They are not going to moderate their positions when they get into power.” And he also warned Germany’s conservative political and military elites, “Do not get involved with these people, because if you help them get into power, you are going to find yourself more or less co-opted. Which is basically, of course-

Brian Smith:

Exactly. It’s what happened.

Samuel Gregg:

So in 1933, January the 30th, 1933, which was a very recent date, was the 90th anniversary. We just experienced the 90th anniversary of the President Hindenberg, the Great World War I military hero who was president of Germany, inviting Hitler and two other Nazis to become part of the Reich government. Hitler becomes chancellor and two other Nazis enter the cabinet. And the Nazis always viewed this as the day when they effectively seized power. And at the time, there was some concern about this, both domestically and internationally. But even for example, German-Jewish organizations. I mean, they obviously didn’t like the Nazis, but they were not convinced that the Nazis were going to do what Hitler said that they were going to do.

So in eight days after the Nazis took power, Wilhelm Röpke gives a speech, a public lecture in Frankfurt am Main, in which he basically goes through and says, this is how we’ve got to this point. This is how we’ve got to this point where this party that is not just economically not in favor of free markets or any of these things, but actually is representative of a trend in the German-speaking world, and more generally in Europe, to reject what he calls liberalism. And by liberalism, he doesn’t mean sort of 19th century liberalism, as a lot of people understood that at the time. He’s not even talking about the German liberal parties that had, to a certain extent, participated in government in Weimar, Germany in the 1920s. For him, liberalism is another way of saying western civilization.

He’s very clear about this if you read the speech. He is very clear in detailing what he means by this. He means Greece and Rome. He means Jerusalem. He means Judaism and Christianity. He means what you would call broadly speaking natural law ideas. And he also means the particular contributions of the enlightenment. All of which adds up to what he calls Western civilization. And he says the Nazis are in the business of taking this down. And not just the Nazis, but the Bolsheviks as well. Because remember, it’s not just the right that’s been radicalized in this period, it’s also the left. The Communist Party in Germany is very strong at this time, the same time as well. So that is the essence of the speech.

And you think about it, it’s a pretty brave thing to do, because Hitler had made no secret of how he proposed to deal with opponents once he got into power. He’s very clear about this. He says, “I’m going to achieve power by legitimate means,” which is what he did. “But when I get into power, I’m going to dismantle the Weimar Republic.” So to get up eight days after these people have been admitted to power, and very quickly start taking over a lot of state institutions to get up and give a speech like that and say, “I’m telling you now, these people are not just economically problematic. They are a threat to civilization,” in what you might call high German intellectual culture, was a very, very brave thing to do. And he paid a price for that pretty soon afterwards.

Brian Smith:

Which you detail in your piece. And I think one of the interesting things about this is the Nazis were very clear. Hitler was very clear about what they were about. And yet, all over Europe, everyone denied the plain meaning of the words they’re saying, the embrace of the friend-enemy distinction, the virulent desire to murder the Jews, which they were pretty clear about. And yet, all these people, which I do think there’s something about human nature that’s sort of when we think we’re getting what we want politically, we’re willing to for forgive or forget a lot of the sorts of things people, politicians say, as if it’s just politics. But these guys were aiming at something more. And so were the Bolsheviks. What were some of the… Or I guess what was special about Röpke’s understanding that helped him see these threats for what they really were?

Samuel Gregg:

Well, I think there are a number of things. One was that he was very aware of different trends in, let’s call it German nationalist circles. Because the national socialist obviously had their own political program. They had a particularly charismatic leader. But he was pointing to trends in German society that the Nazis had picked up on and amplified in a way that had not really occurred before. So he was very aware that there was a lot of talk in Germany on the right about blood… What you might call blood and soil politics….

Brian Smith:

Or the front experience politics too.

Samuel Gregg:

Right. Right. And he also noticed the rise of this friend-enemy language that was very prevalent on the national circles on the right in Germany, and also on the left as well, one should always add. He also had read the literature that was being put out by these people. Another thing which I think sort of drew Röpke’s attention to the Nazis was that he noticed that students at German universities were embracing many of these ideas. He was very popular as a professor. He was a very good lecturer. He was very accessible to students. But he noticed that more and more young minds in German high intellectual culture, were shifting towards political radicalization. Now, it’s natural for younger people to be a little bit more politically radical than say you or I would be. But he was noticing that these people were moving in this direction very quickly and in a way that was ahead of the rest of German society.

So when he gave his speech at Frankfurt am Main, he was a full professor of economics at the University of Marburg, which the student body was overwhelmingly national socialist in its political sympathies. The city itself had voted by 16 more points for the national socialists considering the national average. So he was immersed and surrounded by these ideas and people like this in the German academic world. Which is where you might think there would be more resistance to some of these ideas. But he was looking at this and saying, “No, this is where these ideas are really flourishing. And part of my responsibility is to speak out against this and warn what is coming.”

Because he said, it’s not just that these people are talking about blood and soil, enemy versus friend logic, et cetera. He said, these people are opposed to reason. They’re opposed to reason itself. They see reason and this sort of the quest for truth. They saw these things as restrictions, as barriers, as things that were impeding the German people from a realizing its glorious destiny, et cetera. So in this speech he says, it’s not just that they’re for all these things. They’re against reason itself. And when a party or a movement speaks in these super Nietzschean terms, very explicitly Nietzschean terms about what their agenda is and how they see the world, then we have something to be severely worried about. And remember, when the Nazis came to power, there were a lot of people who thought, well, they’ll just sort of junk the sort of more radical dimension of their agenda, they’ll accustom themselves to office. They’ll forget all the things they said during the political campaigns. That was not the case. And Röpke saw this coming.

Brian Smith:

Right. And I do think there’s this element of Nazis acquired this particular force because it was an educated… It had the support of this educated young population who really embraced that sort of Nietzschean, vitalist set of currents that were floating around in the 20s. And it’s the sort of commitment that people don’t leave behind. If you really all the way down believe in the politics of the will as these people did over that of reason, there’s no escaping there being deeper consequences over time. So I also wanted to ask you, when you were discussing the defense Röpke laid out of liberalism, the speech. You note he was, “Neither an economic determinist nor a philosophical materialist.” So why did he think rejecting those views were so vitally important to defending an ordered society then and now?

Samuel Gregg:

Well, the first thing to point to make about Röpke in this regard was he was a believing Christian. So he came from a family, as I think I mentioned, of doctors, academics, but also Lutheran pastors. He was a believing Christian. And not every self-described classical liberal at the time was. But he was, as were some of the other German liberals at the time. So he was instantly suspicious of any argument that’s based upon, let’s call it economic determinism or philosophical materialism. So he was basically inoculated against that type of thinking. So that’s the first point.

The second thing is that he’s trying to combat the Marxist interpretation of what was going on in Germany at the time. Because the way that the German communists… And communists in general interpreted the rise of the Nazis, was that this was a type of part of the dialectics of history that were working themselves out. And that the rise of the Nazis was the latest of a series of futile attempts by the capitalist class to resist the inevitable dynamics of history as we move closer to socialism and then communism, et cetera, et cetera. So he’s making it very clear that Germany, what it’s going through, is not some type of Marxist dialectic. He’s saying people are making choices here. They’re not being moved by economic circumstances.

Although, of course, he’s very aware as a distinguished free market economist, that Germany’s problems in the 1920s or particularly the great inflation of 1922-1923, as well as the Great Depression, had steadily radicalized significant sections of the German middle class, and particularly including a lot of academics as it turns out, and younger people as well. So he’s very aware of the economic dimension of this, but he’s saying this can’t be interpreted purely as a type of reaction to or expression of economic circumstances. He says very clearly, look, Germany is in serious economic trouble right now. This great depression is very, very damaging. But the era that we’re entering into is not to be understood purely in economic terms.

This reflects a series of ideas that have acquired popular form, and have acquired a charismatic leader, and a structure that is taking us away from this relatively limited experiment in liberal democracy that the Weimar Republic represented. Now, Röpke was not uncritical of Weimar. Everyone was critical of Weimar to some degree. Everyone across the German political spectrum had some problem with Weimar Germany and its particular way of doing liberal constitutionalism. But that’s not Röpke’s point. Röpke’s point is that we are entering an era in which many of the assumptions upon which things like rule of law, constitutionalism, and Western civilization are built upon are going to be systematically dismantled by a movement and an individual that is very explicit about wanting to achieve these types of ends.

So that’s why he says it’s an end of an era. That’s the title of the lecture, end of an era. The era that’s coming to an end is an era in which this experiment with liberal constitutionalism is going to be junked. And there’s going to be some serious consequences of that among which are the identification of particular groups and individuals, as not being part of what’s called the Volksgemeinschaft, which was a phrase the Nazis used all the time, which meant racial community, the racial community. And that obviously excludes the Jewish people, right?

Brian Smith:

Yeah.

Samuel Gregg:

That’s part of the whole Nazi logic of the idea of race. But it also means the obliteration of the individual. There is no individual in the Volksgemeinschaft. There is the people’s community, the racial community as the Nazis talked about. And when you move into a situation where you start talking that way and thinking that way, it’s not that just that particular groups, who by definition according to the Nazis definition, can’t fit that category, who will be expelled, so to speak, from the body politic. It’s of any concern for individual freedom, the dignity of the person, and anything that suggests that there is a world outside the Volksgemeinschaft that needs to be taken seriously.

Brian Smith:

So there’s the first step in all of this. To go back to the question that I asked, which is when you reduce the human person to these supposedly objective categories or classifications as both the communists and the Nazis were doing, you make it impossible to actually do politics that defends human life in an individual way. Which, of course, was the goal of both of these groups.

Samuel Gregg:

Yes. And-

Brian Smith:

And they want to erase the individual.

Samuel Gregg:

Right. So the Nazis are talking about the group as in the race. The Bolsheviks are talking about the class, and everyone belongs to a class and no one exists outside of class, and everything needs to be defined in terms of the class group that you belong to. So when you think about it that way, the individual, as an individual being, gets pushed out of the picture very, very quickly. And it also means that you are prepared to establish and promote political arrangements in which the individual can be treated primarily as an object rather than as a being that possesses an inestimable dignity of its own.

So neither the Nazis nor the Bolsheviks had any time for notions of individual dignity. They had no time for arguments like you may not use people as a means to an end. You may never instrumentalize people. And Röpke talks about this in the speech. He says, the Nazis will do this. They will use people as means to an end. And when you enter into that type of logic, then killing people, imprisoning people, lying to people, manipulating people, all becomes part of the way that politics is operating in that given set of circumstances. So when you think about it that way, you can see that Röpke is saying the individual is going to be obliterated legally, politically, and even socially up to a certain extent in the new era in which the national socialists are going to take this country.

Brian Smith:

So I think that sums up what makes this so important, why he was so brave for doing this. Because this is a tremendous challenge to what the Nazis were doing. I wanted to conclude by talking about what lessons you think this speech and Röpke’s ideas more generally offer us today. How ought we, if we’re using him to reinforce our own thoughts or help ourselves understand our present moment?

Samuel Gregg:

Well, there’s lots of different implications that can be drawn from Röpke’s speech. And the fact I think that my article got picked up, and tweeted, and circulated by people on the right. But also interestingly enough, as you say on the left, which is not usually what happens to articles that I write, I think people picked up some of the implications that, I think, flow from Röpke’s speech and the way I tried to present it and explain its context to Lauren Liberty readers.

So what are some of the lessons? One is that populism is something that we need to be wary of. Now, by populism, I don’t mean democracy. I don’t mean people expressing their views, or majority rule, or anything like that. What I’m talking about by populism in this context, is when reason is pushed out of the picture for political debate and discussion. And by reason, I just don’t mean empirical reason, I mean reason in the sort of broader, deeper sense that people like Aristotle, or Aquinas, or the American founders for that matter, the way that they talked about reason. Reason is the central means by which we do politics. And there are forms of populism that denigrate that, and even see that as weak. And that’s one thing.

The second thing I would say that comes out from Röpke’s speech is if you don’t ground… Let’s call them liberal institutions, constitutionalism. Rule of law, certain conception of rights, et cetera. If you don’t ground these things on a particularly rich understanding of the human individual person, then you run into problems when people want to demolish these types of institutions. Because if it’s all just based on utility or just based on efficiency, those things turn out not to be particularly strong when confronted with people and movements that are determined to sweep those things aside.

Brian Smith:

Right.

Samuel Gregg:

Third implication, I think, is that Röpke was very conscious of this friends-enemy language that was floating around the German Eastern intellectual sphere, so to speak, at this particular period of time. And this language was very much eventually associated with people like Carl Schmitt, who was a German conservative philosopher, who initially, before the Nazis came to power, had reservations about the Nazis, but became an apologist for the regime, and used this friend-enemy language. And even wrote pieces justifying things like Hitler’s clearly unconstitutional actions in 1934 following The Night of the Long Knives, which is when he basically engaged in terroristic action against the left wing, the hard left wing of the Nazi Party in order to consolidate his own rule. So Schmitt wrote a defense of all this, right?

Brian Smith:

Yeah.

Samuel Gregg:

And that friends-enemy language, once it starts to enter into the political mainstream, it becomes very, very difficult not to start viewing people as threats to the republic, or to see people as groups that you have to push aside and marginalize rather than engage in the very difficult, and complicated, and sometimes frustrating everyday business of politics that exists in a constitutional republic like the United States.

Now, I’m not saying that different groups in individuals who act this way or seem to be acting this way are Nazis. That’s not what I’m saying. I don’t think they’re Nazis or anything like that. I don’t think they’re fascists or anything like that. But what I was pointing to in the article was that there’s a certain logic. Once you start embracing a certain logic of politics… And this is what Röpke’s point was. Once you start embracing a certain logic or politics, then your concern for the freedom of others, the dignity of others, and even things like the workings of the judicial system in terms of upholding constitutionalism and rule of law, once this type of logic gets into the political mainstream, respect for those basic institutions, and procedures, and moral habits associated with the workings of constitutional republic like the United States tend to be put on a secondary level, which I think is highly problematic.

Last thing I’ll say is that Röpke is very aware that liberalism, as he understood it, is not just a 19th century thing, that its roots are much deeper. They go back to the classical world, the Roman world, the Jewish world, the medieval world, the enlightenment world, and that this is where, he believes what he calls liberalism, must root itself. It’s not enough to root liberalism in this sense in economic efficiency, or utility, or just mere procedural. He says it’s got to have these deeper roots if it’s going to survive. And when people start attacking those roots, whether they’re coming from the right or the left, institutions of limited government, rule of law, a market economy, private property rights, and ideas like the dignity of the individual, start to lack the nourishing roots that they need, if they’re going to function and prosper over the long term.

Brian Smith:

Well, I think that’s a great place to end. Thank you very much for coming on the show, Sam.

Samuel Gregg:

Thank you, Brian. Always good to be with you.

Brian Smith:

So you can, if you’re intrigued by this, read far more about Röpke in some of Sam’s other essays on Röpke on Law and Liberty. You can also read more about him in his book The Next American Economy, which I encourage you all to pick up and read. Thank you. Have a good day.

A Priest of Liberal Nationalism Feb 02, 2023

John D. Wilsey discusses his book, God’s Cold Warrior: The Life and Faith of John Foster Dulles.

Brian A. Smith (00:03):

Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening.

James Patterson (00:17):

Hello, you are listening to Liberty Law Talk, the podcast for Law & Liberty. Today is January 6th, 2023. My name is James M. Patterson, and I’m a Contributing Editor to Law & Liberty as well as Associate Professor and Chair in the Politics Department at Ave Maria University, a Fellow at the Center for Religion, Culture, and Democracy, and at the Institute for Human Ecology, and the President of the Ciceronian Society.

My guest today is Dr. John D. Wilsey. He is Associate Professor of Church History and Philosophy at the Southern Baptist Theological Seminary and book review editor at the Southern Baptist Journal of Theology. He is also an ordained pastor and has pastored at several churches in Virginia and North Carolina as well as teaching both at K-12 and university-level positions.

2017 through ’18, he was the William E. Simon visiting fellow in Religion and Public Life with the James Madison Program in American Ideals and Institutions at Princeton Seminary. He has written three books: One Nation Under God: An Evangelical Critique of Christian America, and American Exceptionalism and Civil Religion: Reassessing the History of An Idea. Today, our topic is his third book, God’s Cold Warrior: The Life and Faith of John Foster Dulles. I should also mention that Dr. Wilsey is a fellow at CRCD with me, so Dr. Wilsey, welcome to Liberty Law Talk.

John Wilsey (01:47):

James, thanks so much for having me. I’m glad to be here.

James Patterson (01:50):

Well, if things get a little informal during this podcast, it’s because John and I go way back and so we’re having a good time today. But a person who did not have the reputation of having a good time was the subject of this book, John Foster Dulles. Was he as stern and cold-blooded and marble-like as his reputation would seem?

John Wilsey (02:23):

Yes and no. I’ll start with that to frustrate your listeners right off the bat. But before we get into that, I just do want to thank you, James, for having me on this podcast. I love Law & Liberty, avid reader from way back. Had the honor and privilege to contribute some writing pieces to Law & Liberty recently, and just a big fan. A big fan of yours as well, and I’m very grateful for our friendship. It’s approaching 10 years now, I believe.

James Patterson (02:58):

That’s right.

John Wilsey (02:58):

So it’s a great honor and a privilege to be with you. Yes, John Foster Dulles definitely has that rep for being sort of a bucket of cold ice water. I can’t remember what year it was, I think it might have been 1956, Time Magazine voted him as the most boring man in America. And maybe most famously of all, a lot of your listeners will be aware of this, that Carol Burnett recorded a very famous parody song about him for the Ed Sullivan Show and for the Jack Parr show, which was the Tonight Show back in those days, and you can go on YouTube and look it up.

Just do a search on Carol Burnett, John Foster Dulles, and you can see the recording. I think it’s on the Jack Parr show of her recording of that song. It’s hilarious. If you really want to get deep into that, you can look at some other YouTube videos where she gives some of the backstory to that recording, which is also very funny and very interesting. So he did have that reputation. In public, he was very serious and very staid. He was that way, I think, by conviction. He had aspired to the Office of Secretary of State for all of his life. It was a lifelong dream come true because his grandfather, John W. Foster, was Secretary of State under Benjamin Harrison and his uncle on his mother’s side, Robert Lansing, was Secretary of State under Wilson and he had portraits of those two men in his office at the State Department during his entire tenure.

So he had sort of a sense of destiny about him in that role. And he also had a very, very serious perspective or posture towards American foreign policy and America’s role in the world. It was the beginning of the Cold War. We often think of the Cold War… Many people think of the Cold War in those early years as culminating 1962 with the Cuban Missile Crisis. But those years that he was Secretary of State were very serious years. Many, many crises that they didn’t bring the world quite to the brink as 1962 in the Cuban Missile Crisis, but they were every bit as dangerous as the 1962 Cuban Missile Crisis.

I’m thinking about a couple of Berlin crises occurring in the 1950s. I’m thinking about Quemoy and Matsu, which that was a crisis that occurred in 1953, ’54, again in 1958. Then of course, you had the Dien Bien Phu crisis in 1954 in which the French asked the United States to use nuclear weapons to support them in their conflict with the Viet Minh. So very serious times, very serious times. The world could have gone to nuclear war during those years just as easily as at any other point in American history. And he had definitely an awareness of the seriousness of the times, and he was a serious man. He was a serious man when it came to serious things, which I’ve always respected about him. Richard Nixon told a story about him that I think is very… It helps us to really sort of get a picture of him and his seriousness.

In cabinet meetings, when Eisenhower ran his cabinet meetings, he ran them, he modeled those cabinet meetings off of his meetings when he was a five-star general when he was Commander of the Allied forces in Europe. When he would have meetings with the senior staff, he always allowed everybody to speak their mind on their opinion on any issue they were talking about, no matter what their expertise was. And he carried that forth in his meetings as president with the cabinet. So even the postmaster general, if he had an opinion on the economy or if he had an opinion on, say, civil rights or opinion on American diplomacy, his views were just as welcome as anybody else. So Nixon tells this story in the oral history that when Dulles would be asked a question by the president, he would take some time to think carefully about how he was going to respond and answer the question. And he would receive the question and he would look at the ceiling and you could tell that he was formulating his answer, and that he would spend 60 seconds, 90 seconds, just staring at the ceiling. And it was awkward, especially at the beginning, at the beginning of the administration when people didn’t really know him very well. Even Eisenhower didn’t really know him as well. Him staring at the ceiling for several seconds was strange to people. And then he opened his mouth and he would offer a very logical, a very organized, a very comprehensive answer to the question and very impressive answer because he demonstrated himself to be master of the issues that were confronting the United States and the State Department.

But on the other hand, he was also a frivolous personality. I always described his sense of humor as kind of zany. With his close family and his close friends, he had a hilarious sense of humor. He was known for having a very loud laugh. He would throw his head back guffawing and laugh really hard. His brother, who was head of CIA, Allen Dulles, once said that he thought Hitler had a guffaw. He said, “I thought Hitler had a laugh like a donkey.” But he said that his brother’s laugh even put Hitler to shame, which is a strange comparison. But Dulles, Allen Dulles, had met Hitler on a few occasions and had been privy to his loud laugh. He compared his brother to Hitler, which was kind of funny. I write about one instance. His daughter talks about this in her oral history interview that he once embarrassed her and her friends. She was about 18 years old, and he posed as a waiter at a dinner party that she was having with her friends, and he stuffed a pillow up his shirt, took a carving knife and split his tummy with his pillow. Feathers went everywhere like in an act of hara-kiri to get a big laugh out of everybody, and she was embarrassed by that. He thought it was hilarious.

So in private with his friends and with his close friends and his family, he could be quite zany. But he was deeply introverted, he was a serious man, and he kind of knew when to sort of separate times for seriousness and times for frivolity.

James Patterson (10:30):

So this is when I ask you to pass the knife check, maybe briefly explain the knife check.

John Wilsey (10:41):

Yes, yes, and yes. And there were a lot of people that would comment on his laugh and how ready he was to laugh and how he loved a good joke and how he told a lot of jokes. His support staff, his secretaries, loved his laugh. They could hear him laughing in his office with the door closed, so forth, but he didn’t show that personality as much to the public.

I’ll say one other thing about his sense of humor that, I mentioned Carol Burnett, she gave that parody song, and she presented it on live television a couple of times during the same week in 1958. The first time that she performed, I think, was on the Ed Sullivan Show, I believe. Somebody from Dulles’ staff called her at home and said, “The Secretary did not have a chance to see the recording of the song. Can you go back on and do it again?” And she, of course, was thrilled because she was just starting out and she was kind of making herself famous off of this. So I think she went on the Jack Parr show, I could have the order backwards, but she went on the Jack Parr show, Tonight Show, did it again, and the secretary saw it. He did not comment anything to her-

John Wilsey (12:03):

He did not comment anything to her, he didn’t get in touch with her, but she was watching Meet the Press on Sunday morning. She was watching the television. I think she was washing dishes or something at the same time, TV was on. She was watching Meet the Press. Dulles was being interviewed, and when the interview was concluding, the interviewer said, “Well, now Mr. Dulles, we appreciate you being on the program with us. There’s just one last question I have. Can you tell us about this young lady, Carol Burnett, and that song she has about you?” And then his very dry cut away. He didn’t miss a beat. He just grinned a little bit and said, “Well, I don’t like to discuss matters of the heart in public.” So she tells that story. I’ve heard her tell that story on The Diane Rehm Show when she was being interviewed about, oh, 10 years ago or something like that. And she has also a couple of places on YouTube where she has told that story.

James Patterson (13:15):

So I’m not sure if I should tease the readers on what the knife check is when I asked my question. But of course, this is a detail from the private lives of the children in which Dulles would require all of his kids to have a knife on them. So this is at his titular airport, I don’t think you’re still allowed to do that.

John Wilsey (13:39):

No, I don’t. I think that’s discouraged.

James Patterson (13:43):

It’s frowned on.

John Wilsey (13:44):

I think that is discouraged, frowned on. But yes, he had three children. He had two sons, John and Avery, and he had a daughter whose name is Lillias. And Lillias was the youngest daughter, and Avery was the youngest son. John, of course, was the first son. And he required them each to be carrying a pocket knife on them at all times. And he would make sure that they were carrying their knife when he would demand it. He would say, “Pocket knife.” And if they didn’t have it, they had to pay him a quarter.

James Patterson (14:18):

So good. So one of the unique features of this book is that it is a biography of faith. And one of the things about biographies of faith is that normally there’s some sort of obvious hook. And the thing about Dulles is that he doesn’t necessarily seem to have an obvious hook. And when you read the book, one of the things you learn is that he’s not necessarily the most devout person, and at least the way that maybe I as a Catholic and you as a Baptist would normally regard it. And one other thing just to shape the question is that it’s odd that you have to tell his story in a way the collapse of the main line has left them unable to tell their own.

John Wilsey (15:17):

Wow.

James Patterson (15:17):

So tell us a little bit about the peculiar nature of this latter-day mainline protestant and how this faith functioned. I know this is the heart of the book, so you don’t want to give too much away.

John Wilsey (15:30):

Yeah. Well, Dulles inherited a faith from the liberal social gospel tradition. His father, Allen Macy Dulles, was a pastor and a theologian. He was the pastor of a church in Detroit before he was born, and then for 17 years from right around the time that John Foster was born, he was the pastor of First Presbyterian Church of Watertown, New York, in Upstate New York, near Syracuse and near the Ontario Shore. And he was the pastor there for 17 years. He pastored there till 1904. And he left that pastor to take a professorship at Auburn Theological Seminary in Auburn, New York. And he served in that role as professor of apologetics and theism at Auburn Seminary until his death in 1931. In fact, literally to his death. He died on a Thursday and I think he was preparing to go to class, to teach class the morning that he died.

His father was a liberal. He had studied at the University of Leipzig, so he had studied under the German higher critical method and was a liberal. And so Foster grew up going to church three days a week, listening to sermons, drinking deeply from his father’s faith. Dulles was at the heart of the Presbyterian fundamentalist modernist controversy in the 1920s. He was there at the General Assembly in 1924, ’25, and ’26, and he was very famously the council for Harry Emerson Fosdick, perhaps the most famous liberal protestant of the day. And while he was working on the issues of the controversy, he was being coached by his father.

The correspondence between the two of them during those heady days of the fundamentalist modernist controversy in the presbyterian denomination is rich with the two of them just talking about the importance of getting this right for the modernists and for putting the fundamentalists away. And Dulles’ contribution to the controversy was really decisive. It was behind the scenes, but it was a decisive kind of a victory that he represented. In 1937, he was at the center of the ecumenical movement that was taking place there in Oxford, England at the Oxford Conference in 1937, in which he had a turning point, a spiritual turning point.

Prior to that time, I mean, he was an elder at his church, he was an elder at Park Avenue Presbyterian Church, which later merged with the Presbyterian Church in New York. But during those years, the 20s and early 30s, he was not really involved in the church, didn’t go to church very often, didn’t take his family to church very often. He enjoyed sailing on Sundays, he enjoyed playing tennis on Sundays, and so he didn’t go to church very much. But then he went to the Oxford Conference and he saw something that he didn’t think was possible. He saw representatives from all over the world, all over the Christian world who were getting together in Oxford to put aside their theological differences, to think about ways for the churches to actually have a hand in solving international problems of the day.

So, of course, in 1937, Hitler is rising to power, and the Japanese have already established themselves in Manchuria. Looks like there’s going to be another war coming up. And Dulles became something of a new convert in a way after 1937. He became convinced that the churches definitely had a role to play in international politics, and that it was possible for them to put away their theological differences.

That tells you something about Dulles, that he was not interested as much in theology. He was interested in pragmatics. He saw the faith as a pragmatic faith. He didn’t see it as a doctrinal faith. And that’s certainly also very consistent with his liberal upbringing. As a liberal, he didn’t place an emphasis on theology. In fact, he didn’t believe himself in the virgin birth. He didn’t believe in the literal physical resurrection of Christ. He believed in the ethic of the church, the ethic of Jesus, and he thought that’s what the essence of Christianity was. It was an operative pragmatic faith, not a doctrinal or an abstract faith, which means that his expression of his faith was not going to be devotional, it was not going to be like a John Bunyan or a Charles Finney or some kind of a devotional thing. He was not Oswald Chambers. He wasn’t somebody like that.

I see a connection between his desire to live the life of an ethical Christian with this very public expression of piety that he offers as a public figure. Some people would look at that and say, “Oh, this is just him being a hypocrite, or he’s not a real Christian because he just uses their faith to advance a public agenda.” That’s liberalism. So I see him as being not a hypocrite at all, but a thoroughgoing consistent liberal in that regard. It’s interesting too that you say that it’s weird that I’m the one that has to be the one to shed light on this. And I think that’s right. I think that as a person who takes the faith seriously, I’m interested in people who thought of themselves as serious Christians, even if I’m not myself a co-signer with that particular vision of the faith.

James Patterson (21:58):

Yeah. In fact, I have in front of me the dissent of the modernist cartoon, where they’re walking-

John Wilsey (22:04):

Yes, exactly.

James Patterson (22:04):

… down the stairs. Judging from the criteria that you offered me just now, I’d say that he’s halfway down the staircase. For those of you who don’t know, there’s this very famous cartoon, a fundamentalist cartoon that was eventually used by Bryant in the Seven Questions in Dispute, and that was Bibles, fallible or infallible, manmade or not made in God’s image, et cetera. So that means, and it’s funny that the person in the middle of the staircase actually looks like Dulles.

John Wilsey (22:34):

Yeah, I know exactly what you’re talking about. I don’t have the cartoon in front of me, but I’ve seen it so many times.

James Patterson (22:39):

Yeah.

John Wilsey (22:40):

I know exactly what you’re talking about.

James Patterson (22:43):

So this sort of liberal Protestantism that’s a little reluctant to take what they might regard as superstitious or outmoded views of Christianity, all the same, still seems to be fundamental to the moral vision that Dulles brings to American political affairs. You show that there’s this tension in Dulles. On the one hand, he sustains this view about natural right or natural law, this idea of a moral law of the universe. Maybe I shouldn’t call it quite natural law, that might be too… It’s smoke of papism for him. But at the same time, there’s a change in policy for him where he’s less of a belligerent in his young life, doesn’t go full pacifist, but he’s still skeptical of it. And then later in life, obviously he’s quite different on this view. And so there’s this continuity in the moral basis, but a discontinuity in its application. And this is probably, at least for me, this was my favorite part of the book, exploring how he has to work all throughout his career trying to sort this issue out.

John Wilsey (24:03):

Yes.

James Patterson (24:03):

Let’s sort this issue out.

John Wilsey (24:03):

Yes. I love the way you put that. There’s another book, another religious biography that was written in 1985 by Mark Toulouse, who was a professor for years at the University of Toronto. I actually got to know him at an academic conference a couple years ago and we had a wonderful dinner together. His critique of Dulles was exactly what you’re saying. I think he’s right about this. I don’t agree with him fully about his assessment, but I do think he’s right about this, that Dulles had a transformation, a transformation from, the way he put it, was from prophet of realism to priest of nationalism, which is, I think, a really interesting way to put it. When Toulouse talks about a transformation, he talks about a radical transformation, and I don’t agree that it’s as radical as he says that it is. I do think that he does go through a change, and I think you just put your finger on it there, but I don’t think it’s as radical. Let me just flesh this out a little bit, if you don’t mind.

He talked about the moral law all the time after 1937, when he was at the Federal Council of Churches, when he was help setting up the UN, when he was a member of the Council on Foreign Ministers, and when he was heading up the talks that resulted in the Treaty of San Francisco that ended the war in the Pacific in 1952. And then, as a senator, very brief stint as a senator from New York and as Secretary of State, talked about the moral law all the time. And one question I get a lot from people is, what does he mean? What does he mean by that? You talked about natural law and I had to struggle a little bit when I was writing the book. Do I call this natural law or do I say it’s the moral law? Because it sounds a lot like natural law when he talks about it, but it’s not quite that.

James Patterson (26:11):

That’s right. Yeah. I had to catch myself, too.

John Wilsey (26:13):

Yeah. One of my drafts of the manuscript I had to go through and change, I went back and changed, because I was saying natural law for a long time, and I went back and changed all the references I could find to moral law, but I think there is one that I missed. I don’t know if you caught it or not, but I think-

James Patterson (26:30):

I will tell you, you never go back and read your own work. You never do it.

John Wilsey (26:35):

Never go back. I’m sure that I found it when I had the finished product in my hands.

James Patterson (26:40):

That’s right.

John Wilsey (26:43):

But the moral law, I think that’s a better way because it’s a liberal Protestant’s way to see it, not a Catholic’s way to see it. So that’s the one thing I would say. The first thing I would say is how he defines it. There’s a couple of facets to this, one, that human nature is sinful. Now, he always believed that. He was very persuaded by the Federalist Papers, that Publius’ lack of confidence in human nature. I think he’s definitely echoing that. I think he’s echoing also scripture. He believed human nature is sinful. It was always seek power at the expense of others and evil men will always threaten order. He also believed that change was inevitable. This is something that he latched onto even as far back as his undergraduate days when he was at Princeton.

He was Princeton class of 1908. He wrote a senior thesis on change and he believed that change was inevitable and it threatened order, it threatened peace and security. He believed that God created the world in a moral way. He believed that the world was a moral system governed by just law and right and wrong are built into the entire created order. So he was an admirer of Lincoln. Of course, this is something that Lincoln talked about. He saw the Christian ethic as the clearest statement of the moral law, so specifically, Christ’s admonition to do unto others as you would have them do unto you, forgiveness of wrongs will disarm your opponent, the sacrifice of prerogatives that you have for the sake of others, defending the defenseless, the dignity of the human individual, the liberal notion of the fatherhood of God and the brotherhood of man, something that he took very seriously. He was someone who held to a very high view of freedom; freedom under just law, freedom over property, and economic and religious freedom were very, very strong commitments that he had all his life that he never changed.

He believed that power should be shared, distributed in order to check the ambitions of human beings and that moral law was universal and it was irresistible. And because of that, he believed that, as long as the United States was committed to the moral law and animated by the moral law, that the United States would ultimately win the Cold War because the Soviet Union was atheistic, it was godless, and it was opposed to the moral law. It had set itself up in opposition to the moral law. And if you’re going to do that, you’re already on the losing side. So throughout Dulles’ public life, you read his speeches, read his articles, his books, he has two books that he wrote, one in 1938, one in 1950, the moral law is central to his philosophy of politics and of diplomacy.

James Patterson (30:05):

So while he was entering into diplomacy, he ran into someone we’ve mentioned before. He had this funny little mustache. And you mentioned at the opening of his book that there is this picture of Dulles with Hitler. And tell me how we get to this, where we get Dulles, who steers his way more into what we might call white-shoe law firm, eventually makes his way into diplomatic life. You mentioned this is part of the family trade, but he does have to take a particular path that ultimately gets him to being the architect of a Cold War response.

I’m especially interested in this question because one of the things your book helped me appreciate was how Dulles had to essentially invent an American approach to global affairs because the United States before that hadn’t needed one, except in a very pragmatic trade relation sort of way, because we had counted for so long on the British supremacy of the seas. With that in decline, Dulles has to emerge. There’s this idea of the moral law, but how do we get from a guy who’s hanging out with the chancellor to someone who is as opposed to totalitarianism as anyone in the country?

John Wilsey (31:39):

That’s great question and it’s a big question, too.

James Patterson (31:43):

Yeah, sorry.

John Wilsey (31:44):

No, it’s a great question. He is a member of the Reparations Commission at the Versailles Conference. He was a fairly young man. He was in his early 30s when he was on his way to Versailles in 1919. When World War I broke out in 1914, he had just gotten his job at Sullivan & Cromwell, which was an international law firm in Manhattan, as you say, white-shoe law firm. That’s an interesting story about how he got that job. He got that job through his grandfather, former Secretary of State, Foster.

In 1911, he joined that law firm. By 1914, in the onset of war, he was already representing Sullivan & Cromwell with the Government of Panama, as well as Costa Rica. I believe he may have even gone down to Nicaragua, as well, and he made a couple of trips down there to Central America to visit various diplomats from those countries to ensure that, when the war came, that those countries would, in fact, declare war on Germany with the United States, which of course did happen in 1917. The South American country, Central American countries did do that. They were faithful to a promise they kept to John Foster Dulles. He was sent there by his uncle, Robert Lansing, on those missions. So early, early on in his career as a lawyer, he is already representing the State Department, as well as his law firm. When war broke out in 1917, he wanted to be an artillerist. He tried to volunteer for the artillery. He couldn’t get in because his eyesight was so bad. On one of his trips down there to Central America, he contracted malaria and it messed up his eyesight. So he couldn’t be in combat arms in the Army, but he did manage to secure himself a role with the Signal Corps and that turned into a job with the War Trade Board.

He was a captain in the Army and worked for the War Trade Board. When the war ended, through his connection with Bernard Baruch, who was an old family friend going back to his childhood, Bernard Baruch had him come to Versailles as his personal assistant. Later on, he got a seat on the Reparations Commission. And he learned a lot of lessons from Versailles. He learned that static treaty commitments would always lead to war. He learned that, if you grind your former opponent’s face in the mud, as it were, humiliate them, the time would come when they would seek revenge and start another war, several other lessons that he learned. Now, those lessons he did not learn until later in the ’30s and the ’40s, but he did come away from Versailles a much wiser man. He came back in late 1919. He started his work back up with his law firm.

At the height of his career in the ’20s, he managed over a billion dollars in loans to countries in Europe and in Central America. And in 1933, he took two trips to Germany, one in July, or rather June, I should say, and one in December in 1933, where he was helping to renegotiate the terms of German payments of reparations, which of course, during the 1920s and early ’30s, that was a constant bugaboo that […] was trying to work with. He had the Dawes Plan and the Young Plan and those things. And so in one of those visits, I think it was the one in June, he is photographed with Hitler. It’s a weird photograph. It’s a photograph that I found in the archives there at Princeton. He’s in his …

John Wilsey (36:03):

Photograph that I found in the archives there at Princeton, is in its own folder all by itself. And there’s no other pictures in there. And all it says on the back is JFD 1933.

James Patterson (36:10):

I’m so sorry.

John Wilsey (36:14):

And it’s so weird.

James Patterson (36:14):

Nothing else interesting about this photograph, except the year.

John Wilsey (36:19):

It’s so weird. Yeah, it was so strange because there’s nothing at all for commentary, and I’ve never seen any biographer forever mention the picture. I was able to put two and two together and I’ve figured out that’s what he was doing. He was there in Germany. Hitler had come to power as chancellor in January of 1933. And he was negotiating with Hitler on reparations payments and that’s why he was there. It’s a weird picture too, because Hitler is in a tuxedo.

James Patterson (36:48):

Oh yeah, not what you usually see.

John Wilsey (36:51):

Not what you usually see Hitler wearing, usually he is in a frumpy suit or a military uniform. Hitler is grinning broadly. It’s a candid sort of a picture taken in a ballroom full of people. And there he is talking to John Foster Dulles. In 1933, nobody knew what Hitler would become. We know now.

James Patterson (37:14):

Yeah, right.

John Wilsey (37:16):

But then nobody knew. Was a defender of Hitler all the way up until I think 1937, saying that he was kind of getting a bad rap. And after 1937, I believe he changed his mind about Hitler. But regardless of those things, your broader question about how does he go from being sort of focused on his career as a lawyer and really spending the 1920s just really amassing a massive fortune. Not being all that interested in politics as it were. He is interested in internationalism, he’s interested in war during this time, of course, in the twenties, war is being outlawed by governments all over the world. 1928, the United States Senate passed the Kellogg-Briand [P]act, which was an act that outlawed war, and it passed unanimously in the Senate.

James Patterson (38:10):

We did it!

John Wilsey (38:12):

I think it was signed by Coolidge, Herbert Hoover who’d won the election in 1920, was a pacifist. He was a supporter of that act. So that sort of pacifism was in the air. He was going around the country, speaking on internationalism and war. He wrote several articles on the need for the United States to be engaged in the world economy. We think of the United States as being isolationist in the 1920s. Of course, it was to a certain extent, but on economic matters, the United States was not at all isolationist in the 1920s. And I think that’s represented well by Dulles.

Dulles was constantly advocating for a very vigorous involvement in the world economy. And the United States was involved in the world economy, the twenties. Initially I think that his concern with politics began in 1935. Hitler’s on the rise, the Japanese are on the rise, and the Soviet Union is certainly a threat. And he wrote an article for The Atlantic Monthly called “The Road to Peace.” And that article that he wrote was really his first foray into serious engagement with diplomacy, international politics, and American involvement. How do you avoid war? He says in the very beginning of that piece, it looks as if the world is moving inexorably again towards war. And he thought that was a crazy process. He’d been at Versailles. He had been there to oversee the war to end all wars. Pacifism had been in the air for so long, and here we are getting ready to have another war. No one could have foreseen this. And yet because of Versailles, because the Treaty of Versailles was failing and because Wilson’s vision of the Fourteen Points was not being taken seriously, war was coming again.

So you really do see in 1935 is a sort of keynote year in his career. He really begins to become interested and that sets him on a path. In 1936, he gave a major address at Princeton University that echoed many of the same themes from that 1935 article. And on he went, he was off to the races in international diplomacy after 1935.

James Patterson (40:42):

Oh, so that’s very good. Okay. I did have a bit of a spicy question to end this, if you don’t mind spicy questions?

John Wilsey (40:50):

I love spicy questions. You kidding me?

James Patterson (40:53):

Yeah. So would you characterize this transition after ’35, by the time he is in the Eisenhower White House, emphatically a proponent of the civil religion, this sort of national faith. Would this be an appropriately understood to be a kind of Christian nationalism? And I asked this question because you’ve written for Law & Liberty on the subject, and it’s very much part of a lot of the discourse among conservatives in the United States, especially among American Protestants. And what makes the question so spicy to me is this is a liberal Protestant.

John Wilsey (41:37):

Yes. Yes. I’m so glad you asked this. And maybe we could do another episode sometime on Christian nationalism-

James Patterson (41:44):

This is a bit unfair.

John Wilsey (41:47):

… right there. But you make it-

James Patterson (41:47):

Give you five minutes to answer this.

John Wilsey (41:48):

That’s okay. But to make it quick, yes. For most of American history, it’s been, I should say this… Let me characterize it this way. Christian nationalism relies on history. Christian nationalism is always animated by a particular philosophy of history, particular method of history. And for most of American history, Christian nationalism has been articulated through the lens of a progressive view of history. So for most of the time, the nation has been situated in orientation towards the future. America is the land of the future. It’s the nation of the future. Thomas Paine said, “We have it in our power to begin the world anew.” John O’Sullivan, the guy that coined the term “manifest destiny,” said, that we are “the great nation of futurity.”

We’re going to turn our back on old Europe. We’re going to turn our back on tradition. We’re going to start over again. Our own motto. You look at your dollar bill, the reverse side of the Great seal of the United States. There’s two mottos. One is, I’m going to butcher the pronunciation to Latin, but Annuit cœptis, I think is the name is the way you say it, which means roughly, God has blessed our undertaking. It’s a quote from Virgil. And then the other one is Novus ordo seclorum, which is translated roughly a new order for the ages. So historically, most of the dominant way that Christian nationalism has been articulated has been to orient the nation to the future. It’s been a progressive historiographical kind of a philosophy. And John Foster Dulles is definitely in that school of thought.

He is a Christian nationalist of the early 20th century. He sees America as the nation of the future. He’s optimistic about America’s future. He’s optimistic about the future of the world because he sees America as the indispensable nation in bringing about an optimistic sort of a view. He’s a Wilsonian in that he sees America’s role is messianic. God has chosen America to lead an international order, first through the League of Nations, but then later through the United Nations. It’s going to lead the free world in this Manichean struggle against Soviet communism. And because America is on the side of the moral law and because America is a Christian nation, he says that kind of stuff all the time. That America is destined to win the Cold War. And the Soviet Union will eventually go down with all the other totalitarian regimes that have set themselves opposed to the moral law like the Nazis, like the Fascists in Italy, like the Japanese expansionists.

These were all groups and governments and entities that set themselves against God. And hey, the universe is created as a moral order. You cannot beat the system. So the United States being a Christian nation, being a nation committed to the moral law and to a moral order, to peace, to security, to justice, America will triumph. That’s very different from the Christian nationalism we see today, which is the conservative view that orients the nation towards the past. To the founding, the religious nature of the founding to the faith of the founding fathers and so forth and so on. That’s not the kind of Christian nationalist Dulles was. So in our conversations about Christian nationalism, and we do have to be specific and be precise about what historical orientation, historical perspective we’re talking about.

James Patterson (46:04):

The book is, God’s Cold Warrior: The Life and Faith of John Foster Dulles, the author, my good friend and wonderful scholar, Professor John D. Wilsey of the Southern Baptist Theological Seminary. Thank you so much for coming onto Liberty Law Talk.

John Wilsey (46:21):

Thanks so much for having me, James. It’s a great, great privilege.

Brian A. Smith (46:25):

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

The Jeffersonian Republic Dec 30, 2022

Often underappreciated and understudied by the general reading public, the Jeffersonian era is indispensable for understanding American development. Kevin R.C. Gutzman has now written a definitive account of the period. He joins Liberty Law Talk to discuss. Read along with the transcript below.

Brian A. Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening.

John Grove:

Welcome to Liberty Law Talk. I’m John Grove, the managing editor of Law & Liberty. From 1800 through 1824, Americans elected and reelected three presidents from the same party, indeed from the same state, something that has never been done since. And for most of their time in office, Thomas Jefferson, James Madison, and James Monroe also enjoyed comfortable partisan majorities in Congress. The opposition party as an institution was destroyed, and in these years, America began a period of expansion and development. It struggled to develop a consistent foreign policy, continued to wrestle with fundamental constitutional questions, and saw the emergence of regional fault lines that would plague the rest of the century.

This fascinating period of history is the subject of Kevin R.C. Gutzman’s latest book, The Jeffersonians: The Visionary Presidencies of Jefferson, Madison, and Monroe. Gutzman is a Professor of History at Western Connecticut State University and is the author of several books, including Thomas Jefferson-Revolutionary, James Madison and The Making of America, and Virginia’s American Revolution. But today we’re going to be talking about his latest published this month, The Jeffersonians. Professor Gutzman, thanks for joining me.

Kevin Gutzman:

Happy to be here, John.

John Grove:

All right. So the revolution of 1800, seems we can look back at 1800 as a really pivotal moment in American history. Even at the time, though, people seem to recognize that this was something new, this was a kind of new era dawning. Jefferson, looking back a couple decades afterward, he says that the election of 1800 was as real a revolution in the principles of our government as that of ’76, not effected indeed by the sword as that one, but by the rational and peaceable instrument of reform, the suffrage of the people. So to start us off, where did the revolution of 1800 come from? Talk to us a little bit about the 1790s, where did this pivotal election come from, and what were the expectations for this new era?

Kevin Gutzman:

Well, the 1790s had seen what surprised most observers and most participants, the development of a two-party political system. And this was disappointing to members of both parties. The Jeffersonians in particular had thought that winning the American Revolution, especially Jefferson had thought winning the American Revolution had meant establishing a new kind of society with a new kind of government, one that was going to leave men more or less free to make their own way in the economy, one that would be decentralized so that even the average Joe who couldn’t, of course, be elected to Congress or be a cabinet officer, could still have more or less complete say over the way his own life worked. And yet the Federalists for their part thought apparently that what the American Revolution meant was that now Americans would have their own government, like European governments. And when the revolution of 1800 occurred, Jefferson believed, and more or less said in his first inaugural address that his view of the American Revolution had been vindicated, that the people had, at last, come to agree with him.

So he and his two close allies, Madison and Monroe, would over the following six presidential terms, try to implement essentially every element of what had been their partisan position in the 1790s. Much of it was wildly successful while other of it was a complete debacle. And somewhat surprisingly, there is, other than my new book, no account of it that takes it all as of a piece, even though people at the time understood these three consecutive two-term Virginia Republican presidents were all acting on the same platform. So what I hope I’ve done is give a coherent account of Jeffersonianism as implemented by these three presidents and their allies in Congress.

John Grove:

Wonderful. Yeah, a big part of that, of course, is constitutionalism and their vision of the American Constitution. Obviously, that’s of particular interest to a lot of our listeners and Law & Liberty readers. So I wanted to talk a little bit about, first the general Jeffersonian constitutional vision and ideals, and then a little bit about how some of those battles were fought over those years. And as you note throughout the book, even though a lot of the political battles were being won by the Jeffersonians, they weren’t necessarily winning the constitutional arguments all the time. So really famous line from Jefferson, “Our peculiar security is in possession of a written constitution. Let us not make it a blank paper by construction”. How would you describe the Jeffersonian constitutional vision, at least in its ideal form, not necessarily in the way that it played out in practice?

Kevin Gutzman:

Well, my immediate preceding book was about Jefferson’s political program. And the chief principal in his political program after Republicanism, which of course was a given, was federalism, which was, as he once put it, that if there were a conflict between the federal government and the states, he would prefer the states. But then within a state, he would prefer counties, and within counties, he would prefer wards. And this gets back to the idea I mentioned earlier, that the average person couldn’t expect to be a cabinet officer or vice president or a senator, but he could hope to convince his neighbors that they had a common understanding of the way life ought to be lived. And so if the government was left largely decentralized, people in Massachusetts and people in Virginia who didn’t agree about political questions could all be happy because they could all be governed by their own neighbors.

And this is a principle that Jefferson and his two collaborators, successors took to heart that Jefferson said in his first inaugural address that this was going to be one of the chief alliances of his administration. And they went a long way toward making that central feature of their own constitutional practice. Of course, as you mentioned, it was the case that Jefferson bewailed, the Constitution didn’t allow any means for the voting majority to change the composition of federal courts. And so it was true that while the active government was decentralizing its activity, the federal judiciary was writing into what came to be called constitutional law, principles of centralization that we still live with. So if you study the Constitution in APUSH or as an undergraduate, or in law school, you start with Marbury versus Madison. And the next thing up was McCulloch versus Maryland, both of which of course are decisions from Jefferson’s cousin John Marshall in his court that Jefferson bewailed, he thought they were mistaken.

And he also saw that they, in the long run, were going to empower people to act against these principles that he helped so dear. So there is a poignant element to this, and I try to make clear in the book why it was that people like Marshall acted on these principles. That is John Marshall, Chief Justice and fellow Randolph to Jefferson. I try to make clear why he acted on these principles and why people like Jefferson thought they were just completely mistaken, that they meant essentially it was possible that in the future the US government could come to look like the Spanish government, or the Prussian government, or the British government.

John Grove:

Before we get into some of those specifics, I do want to get into some of the constitutional specifics. But one incident that strikes me as very important in the narrative that I’d say the average reader of American history doesn’t know a whole lot about is the impeachment of Samuel Chase. In fact, you even call this the high watermark of the Jefferson presidency, this attempt to impeach Samuel Chase. Of course, Federalists had been kind of packed into the federal courts all throughout Washington and Adams presidency, but even right at the very end, of course, which gave rise to the Marbury versus Madison case.

And so you had the Jeffersonians, the Republicans in the presidency, in Congress, but you had this really just Federalist bastion in the courts. And so one potential approach of the Republicans was to try to pull these people out by impeachment. And you just mentioned a minute ago that the Constitution doesn’t provide any method for the people to change the composition of the court except very, very long term as judges retire and pass away. So impeachment was one method that they tried to do. And so just tell us a little bit about the Samuel Chase impeachment and why that was so important and why you even suggest this was kind of a pivotal turning point in the presidency of Jefferson.

Kevin Gutzman:

Well, of course, Alexander Hamilton tried to assure people in the Federalists that the idea of giving federal judges good behavior tenure wasn’t that dangerous because the impeachment power would be available. And after Chase, who if he didn’t deserve to be removed from office in his impeachment trial, I can’t really quite imagine how a judge could deserve to be removed from office in an impeachment trial.

John Grove:

I noticed you were very upfront about that. Do you really think Chase deserved to be removed?

Kevin Gutzman:

I think he deserved to be removed from office, and actually, it’s come to be a kind of totem to which federal judges bow. So in their history, in the histories of the Supreme Court, both the late Justice Sandra Day and the late Chief Justice William Rehnquist, my all-time favorite associate Justice, said that the acquittal of Chase was essential to the establishment of American judicial authority. Well, okay, it was essential to establishing American judicial authority far beyond the policymaking discretion that the people who made the Constitution had in mind, I believe. But anyway, so what happened was this fellow Chase had been a complete partisan. He had acted as a partisan in giving grand jury charges. He essentially made political speeches when impaneling grand juries.

And then in one particular criminal case, he told a fellow before the grand jury was even impaneled, that when he got to Richmond, he would impanel the grand jury, the grand jury would indict this fellow, the fellow would be convicted, and then he would give him the sternest available sentence. Then how would you like a judge like that? It makes me think of Judge Roy Bean. And Chase was acquitted, and I show in the book that people gave explanations for their votes for acquittal to the effect that, well, John Randolph, who was the lead house prosecutor, lead impeachment agent from the house, had annoyed people in various other ways. And so they voted for acquittal to get back at Randolph, or in the case of John Quincy Adams, well, here was an old man who had served his country through his whole adult life, and how could you treat him this way? And just their votes for acquittal seemed to have had very little to do with the actual facts of the case, which were that the guy was just a hanging judge.

And besides that, he used his position on the bench to make political speeches. So if somebody like that couldn’t be removed from office in an impeachment trial, well, we’ve seen that there hasn’t been another impeachment of the Supreme Court justice since. And when he heard the result, President Jefferson said, well, impeachment is a mere scarecrow. It’s just an idea. It’s not going to be of any use to us at all. Whether Hamilton actually expected that when he was writing the aforementioned essay in The Federalist is an interesting question, but there’s your answer.

John Grove:

It’s always interesting. And when you teach undergraduates kind of just basic checks and balances, there’s always this question, well, what’s the check on the judicial branch? And there’s not a great answer to that, other than just, well, they’re going to be appointed by the other branches. But that’s a long-term process. And yeah, as you mentioned, impeachment-

Kevin Gutzman:

Well, later on in the book, we have the correspondence between former President Jefferson and Justice Johnson. And Jefferson says he doesn’t like the fact that the Marshall Court has come, or to concur in a common opinion because there are really only two checks on federal judges. One, he says is impeachment, and the other one is public opinion. And he says, if all the judges join in every majority opinion, or if they all join in a common opinion in every case, which is what had been going on term after term during the Marshall years, then there’s effectively no check on their behavior.

You can’t say anything to any of them. They can all disavow support for whatever case you’re criticizing or say, well, we have a kind of ethic on the court that we try to arrive at a common conclusion. So it was clear at the time, it was clear very early on in the history of the federal government that the judges could do more or less whatever they wanted. And we’ve come to be used to the idea that they can do more or less whatever they want. And this Jefferson called by different names from time to time, it made him very unhappy as you can imagine.

John Grove:

That correspondence was very interesting. I don’t think I’d come across that before. Which Supreme Court Justice was it again that he was of course-

Kevin Gutzman:

Johnson.

John Grove:

Johnson. Okay.

Kevin Gutzman:

William Johnson. Yeah. There’s an excellent book, I believe on the University of South Carolina Press from about 1958 called The Great Dissenter. It’s about Justice Johnson.

John Grove:

And Jefferson just say, Hey, throw some dissenting or concurring opinions in there. Let’s just get a little bit variety in there. If-

Kevin Gutzman:

Something amazing. Right. Let us know that there are different personalities on the court so that we can single out the greatest offenders. First, Johnson’s answer was, well, I’m not entirely certain that any of our major opinions have been wrong. Can you tell me which ones are wrong?

John Grove:

He had answers for that.

Kevin Gutzman:

And Jefferson was back to him with an endless group of descriptions of past product of the Supreme Court that he hadn’t approved of. And Johnson says, well, okay, I guess in the future I will dissent when I am in entire disagreement. And so he’s called the great dissenter, even though he would dissent once every term or maybe every other term. Nowadays, we expect them to have six opinions in every case. But in those days, it was effectively always just a common opinion, and Chief Justice would read it.

John Grove:

Yeah. So let’s talk about a few of those decisions that Jefferson thought was wrong. I think we’ll pass over Marbury vs Madison because I think almost all of our listeners will have a pretty good sense of what was going on there, but talk about some of these others. The other big-

Kevin Gutzman:

Well, just one thing to say about Marbury is nowadays people would agree that the Marshall’s behavior was incorrect, because today the first thing you have to do if you’re a plaintiff in a federal court, the first pleading has to be about jurisdiction. And so the judge would first address jurisdiction. And what made the Republicans so angry in Marbury was he started by giving a sermon about all the other questions in the case. And then he says, well, there’s this jurisdictional problem.

John Grove:

Right, at the very end.

Kevin Gutzman:

And finally, of course, the power of judicial review was established by the courts declaring that it didn’t have jurisdiction. In other words, it shouldn’t have gone to all those other questions. And that too seemed to the Republicans just to be a political speech.

John Grove:

That stood out too, as you get it from Jefferson, you get it from Spencer Rhone who wrote a lot of these essays against the Marshall Court. That big complaint is that the Marshall would regularly go out of his way to find these issues that he didn’t have to address in order to decide the legal question at issue, which did seem to be a characteristic. Yeah. Obviously the question of judicial review itself in Marbury versus Madison. You had the question about the necessary and proper clause, which was of course one of the most contentious issues over the ratification of the Constitution that comes up in McCulloch versus Maryland. You have the more difficult, conceptually difficult matter of the federal appellate jurisdiction. This one’s a little harder to follow for people who aren’t going to be knee-deep in the law of that period.

But the Martin versus Hunter’s Lessee, and Cohens versus Virginia, where he had this question of to what extent can the state judicial decisions then be brought over into the federal courts and overturned there? And then you had the commerce clause question in Gibbons versus Ogden. I mean, you can talk about all these, one of these, how did these kind of fit in, or why were these so objectionable to the Jeffersonians of these decisions that the Marshall Court was coming with? Of course, it’s cited on the favor of the federal government and the federal courts every time. Why were these so objectionable to the Jeffersonians?

Kevin Gutzman:

Well, a lot of them were just running entirely against their basic understanding of the constitution that it was supposed to have established a government with enumerated powers. So for example, take Cohens, Cohens is about Congress is establishing a lottery in the District of Columbia, and then the Cohen brothers were selling lottery tickets in Virginia where it was illegal. So the federal courts end up saying, well, they can do that because Congress established a lottery in the District of Columbia, even though there’s nothing in the Constitution that says Congress can establish a lottery in the District of Columbia. And even if there were, what would that have to do with selling tickets in Virginia? So that’s a kind of typical example of the way that the Federalist judges behaved in those earliest days.

Martin is another interesting case. Of course, if you’ve taken common law then you’re familiar with all of these cases, but if you haven’t, it may be news to you, but in Martin versus Hunter’s Lessee, what ended up happening was that the Supreme Court told what is now the Supreme Court of Virginia to send up the record of a particular case, and the chief judge of the Supreme Court of Virginia said, no, we’re not sending it. And they never did. So that was the end of it. So you’d say, well, that sounds kind of like, I don’t know, nullification. That was kind of what it was. But we end up with the case standing for the idea that the Supreme Court could tell the Supreme Court of Virginia what to do, which it certainly didn’t establish. That is the Supreme Court of Virginia never did what it was told. And the reason for this was that the chief judge had persuaded other people on the Virginia Supreme Court to understand the Constitution in Jefferson’s way.

This was a perfectly Jeffersonian judge, or one way of understanding that is it might show what kind of a federalism extremist Jefferson was because the two of them are in correspondence about this, and Jefferson is telling him, I agreed with every tittle of your series of newspaper editorials explaining your position against Marshall. And there are other cases, accord… I should say, there are other instances in which Jefferson took very extreme positions on Federalism, including at one point he suggested the death penalty for people who helped to enforce the first bank charter.

John Grove:

Seems a bit much.

Kevin Gutzman:

First federal bank charter in Virginia. Yeah. So these were all hot matters because as far as Jefferson was concerned, the American Revolution, first of all had established that Virginia was an independent country, and it had delegated some power to the federal government, but not power to come up with any kind of command it wanted to come up with. And that seemed to be some of these cases amounted to.

John Grove:

All right. See, it struck me that there were two themes that really divided the Republicans from the Federalists on these questions that came out in your narrative of it was one is the sense of always going back to would the people have ratified the Constitution if this had been understood? And that’s something that Ron went back to, and John Taylor, I think goes back to a few times, and Jefferson probably does that. If the people had thought that McCulloch versus Maryland was going to be decided the way it was, would they have ratified the Constitution with that understanding of the Constitution? And they kind of argued pretty persuasively probably that they probably wouldn’t have.

And then the other thing that struck me too is the sense that on the Federalist side, there’s this desire for uniformity that the Jeffersons don’t like. That a lot of the arguments come from these sense of, well, obviously if you want a system of government, you have to have this sort of unify… It has to be unified in a way, you have to have a final authority. And Jefferson did the jurisdiction cases. They’re kind of arguing that we have two separate judicial branches here. We have a state judicial system, we have a federal judicial system, and both of them are perfectly supreme in their own area, which of course doesn’t give you that uniformity. It gives you this multiplicity. And of course, the Federalists didn’t like that, but that seemed like a major theme that came out.

Kevin Gutzman:

That’s exactly what Ron says in Martin versus Hunter’s Lessee. Yeah.

John Grove:

Oh, wait, A couple of constitutional issues that come up, not in the Supreme Court, but just as a byproduct of national expansion. One is Jefferson, this is a famous one, of course, Jefferson’s decisions in making the Louisiana Purchase. And of course, foreign policy is a big part of this, the story and the Louisiana purchase, a huge part of Jefferson’s foreign policy. And he and his cabinet had some constitutional qualms about everything they were doing. What were some of the constitutional issues that came up with that question?

Kevin Gutzman:

Well, I don’t know about his cabinet. I think Jefferson was the only significant Republican who was opposed to the idea that the Louisiana Purchase was clearly constitutional. So essentially, for people who don’t know anything about it, what happened was that Jefferson had the idea, as he put it, that there is one spot on the map, the possessor of which must be an enemy of the United States, and that is New Orleans. So he had a minister, Livingston from New York in France, and then he sent James Monroe, who was a Jefferson lieutenant to join Livingston in France to try to purchase New Orleans. And the story goes that actually before Monroe even arrived, Talleyrand, the foreign minister of France, had said to Livingston, well, how about if I sell you all of Louisiana? And of course you can kind of imagine a diplomat faced with this wanting to keep a straight face and thinking this is beyond comprehension.

So he more or less agreed to it before Monroe even showed up. Well, that’s going to be an issue later on in the book when presidential candidate Monroe wants credit for this. But anyway, so that they sent word of the agreement that they had not handed any right to make that they had not been delegated power to make by the president or the Secretary of State and the purchase price, which was beyond the amount of money they’d been told they could spend. And when Secretary of State, Madison saw this communication, he was ecstatic. He thought this was wonderful. And so far as I can tell, the only significant Republican who didn’t think it was wonderful was Jefferson. And Jefferson, as far as I know, was the only significant Republican who thought there was a constitutional problem.

Now that later on, John Quincy Adams is going to give evidence that he had thought there was a constitutional problem. But he of course was never actually a Republican. So anyway, the first Jefferson says, well, what we’re going to need to do is we’re going to have to have the states ratify a constitutional amendment, empowering the executive to enter into a purchase of territory like this. And Madison’s position is Article 2 of the Constitution says that the president can make treaties with the advice and consent of the Senate. And since it’s not specific, that has to include all common kinds of treaties, which would include treaties of alliance, treaties of peace. Nowadays, it wouldn’t include, but in those days it would include treaties to buy and sell territory, which nowadays are virtually unknown, but in those days, were common. So Madison thinks this is not a problem. And anyway, Jefferson drafts an amendment, Madison scribbles about an amendment, and eventually Madison talks him out of doing this because they get a letter from Livingston.

While this debate has just started among Jefferson’s advisors saying, Napoleon is talking about rescinding this agreement, he’s already thinking this was a bad idea, so you better hurry up. Now if we can wonder whether Napoleon really was thinking about doing that, or he just wanted to hurry up and get his money. But in any event, Jefferson finally decided, I’m going to have to do what the executive occasionally will have to do, which is just take advantage of a fleeting opportunity and hope the people forgive me. So that’s what ended up happening it. But Jefferson, I think was never persuaded that it had been exactly kosher, but as I said, I can’t identify any other top Republican even sticklers that Randolph tailored, none of them complained.

John Grove:

That’s interesting. Yeah. Of course, the expansion. The addition of territory, the creation of new states, obviously would go on to be quite significant constitutional and political issues.

Kevin Gutzman:

Well, people in New England, apparently Federalists at the time thought what this did was transform the union. And while the states had agreed to enter into the union among the original states, when they had ratified the Constitution, they had not agreed to this. So some of them thought it was unconstitutional. But as I say, the Republicans, as far as I can tell, Jefferson was the only significant one who had any constitutional questions about it.

John Grove:

All right. Let’s talk a little bit about foreign policy. And of course, the big foreign policy blot in the middle of this timeframe is the war of 1812. So I thought we were talking about that in a little bit in the big picture. One thing that’s interesting is that the Jeffersonian vision, if you can call it that, had some distinct ideas about foreign policy, about how you carry out foreign policy. At one point you even say of Madison, that today almost everybody would take his common sense to the idea that the best way to avoid war is to prepare for it. And you say Jefferson basically rejected that premise. What was his general idea about how foreign policy was going to be carried out? He had a skepticism of standing armies and navies. How did he think America was going to make its way in the world?

Kevin Gutzman:

Well, as far back as the early 1780s, Madison had the idea that Europeans were dependent upon American food supplies. And so America could use economic coercion to some extent in foreign policy. And I think what happened was that Madison persuaded Jefferson of this. So what we end up with is in the first inaugural address, his countering the general perception that America had a weak government with the famous statement that, no, it’s actually the strongest government in the world. It’s the only one which if endangered the people would fly to the colors to defend. So he had this idea, he let the wish be further to the belief that, well, we don’t have to make any serious preparation for war at all. In fact, when they were thinking about who should be in the cabinet, he chose Albert Gallatin to be treasury secretary, and Gallatin had earned his stripes in Congress by being the chief enemy of Navy spending.

And often nowadays, you hear people, especially Libertarians, talk about Andrew Jackson. Well, what can you say that’s positive about Andrew Jackson? He paid off the debt. He paid off the debt on exactly the date that Albert Gallatin’s program called for finally extinguishing the debt. That is during the Jefferson administration they had started the process that culminated in the Jackson administration, and well, was this safe in a world that was at war, in a world in which the two great powers and most of the secondary powers were involved in this gigantic war? Napoleon had a population of 25 million Frenchmen, and 3 million were at arms. That was the most populous country in Europe, and 12% of its population were soldiers. And Jefferson thought, we don’t really need a Navy. So it just was… Well, again, I think the idea originated with Madison and Jefferson of course was a ready audience for most things Madison said, but in this case it went along with his own wishes.

So what’s the result? Well, the result is a foreign army burns down the Capitol, and the White House, Treasury Department, State Department, War Department. They saved one office because the French minister in Washington saw that the British were about to burn this office, and he said to the commanding general of the British forces, you should leave this patent office. Don’t burn it. That’s not just for Americans, that’s for the whole world. So today, if you go to Washington, you can ask on a tour of the White House to see the smoke stains. There’s still smoke stains in the building, and you can see the old patent office, but there aren’t any other offices that old because the British destroyed them all. This was a predictable result of the foreign policy of the Republicans, I think. There are other things that played into it too. In other words, there were opportunities to prevent so dire and outcome, but Madison missed those as well. I described that in the book too, and we end up with this just hideous result.

John Grove:

Do you think coming face-to-face with those sort of geopolitical realities, do you think that altered the ideological trajectory of the Republican Party at all?

Kevin Gutzman:

Well, when Monroe becomes president, he decides to recapitulate one of the main things Washington had done as president, which was to tour the country and inspect the defenses of the country. So there are these three tours that Monroe undertakes, and there is substantial spending on especially seaside defenses. But part of the reason why Washington ended up being taken by this foreign force was that Madison, first of all, appointed people who were totally unfit to be his war and Navy secretaries. And then when he replaced the war secretary, he got a fellow named Armstrong, who of course had been involved in the revolution with trying to overthrow the civilian government of the United States. And he told him, prepare the approaches, and then he didn’t.

Several months later, he told him again, have you prepare the approaches? Have you done anything about that? The guy said, no, don’t worry. The British will never try to come to Washington DC. If they come up to Chesapeake, their target will be Baltimore. So Madison does nothing about that, and eventually, as I say, the foreign army does march into Washington and burn down all the major government buildings.

John Grove:

There are a few interesting and I think, underappreciated figures that play large roles in the book below the level of presidency, below of course, Jefferson, Madison, and Monroe. I just wonder if you just say a few words about some of these people and why it’s important to know about their contributions. One, you just mentioned, Albert Gallatin, he strikes me, especially in the first half of the book, really, he’s one of the… There are a couple people that always seem to be, when you need somebody who actually has his head on his shoulders a little bit, go find this guy. And he seemed like one of them. What was Albert Gallatin’s contribution?

Kevin Gutzman:

Well, Gallatin was a brilliant fellow. He was the one Jeffersonian in the 90s who could argue financial matters against Hamilton, essentially. He was very unusual for a top American politician in that he had been born in Geneva. His family name was actually Gallatin, it was Italian, and his ancestors had been among the founders of Geneva. And then over the previous three centuries, there had been five chief executives of Geneva who were Gallatin’s ancestors. I don’t mean collateral relations, I mean actual ancestors. And then his mother’s maiden name was du Rosey. So on both sides of the family, he was from European nobility. And there’s a famous kind of potted saying among historians, Dukes don’t immigrate, well, Albert Gallatin’s, the exception, he had nobles on both sides. He went to the best schools Switzerland had to offer, and then he got to be a young man, and he decided, this place is boring, I’m going to go to America.

And so he got a friend of his, and they came to North America, and he didn’t speak English, and he ended up teaching French at Harvard. And then after he’d been there for a while, he decided, well, this is kind of boring too. And finally, he made his home in western Pennsylvania. I need to think, well, that doesn’t really sound like an antidote to boredom, but in western Pennsylvania, he ended up in the center of the Whiskey Rebellion. And when Hamilton led that army out there, he actually asked people where Gallatin was, because apparently, he intended to hang him, and that didn’t happen. But Gallatin soon found himself in the lower house of Pennsylvania’s legislature and then in the upper house and then in Congress and everywhere he went, people couldn’t avoid the fact that although he was very odd looking, he was extremely bright, and an obvious person for Jefferson to put in his cabinet.

Not only given Jefferson’s intention to pay off the debt but just as a general advisor. And Jefferson repeatedly said things like, in eight years we never had a single significant argument in the cabinet. We would talk about whatever the problem was, but nobody got angry. It just worked really well. And Madison was a kind of brilliant but retiring personality, and apparently, Gallatin got along with the two of them that way too. So those three fellows really are the ones I think who ran the Jefferson administration. And he is a very interesting guy. Actually, nowadays, oddly, if you go to Trinity Churchyard in Manhattan to see the monument, Alexander Hamilton over his grave, if you’re standing there looking at it in turn about, I don’t know, about 135 degrees to your right, you’ll see Albert Gallatin’s grave. So they’re buried within about 10 steps of each other.

John Grove:

Yeah, it’s interesting. For as contentious as our politics is today, there were a lot of incidents of major political figures either threatening or actually killing one another in the early republic. So another figure brings up not so much a friend to the Jeffersonians, at least after the first few years, John Randolph of Roanoke, comes up over and over again. One of these old Republicans who I think it was is either, it’s either Randolph or Taylor that is described as more Jeffersonian than Jefferson.

Kevin Gutzman:

Well, I think I describe Randolph that way.

John Grove:

Okay, yeah.

Kevin Gutzman:

Randolph, just like Gallatin, is amazingly brilliant, but his personality is totally different. So you could be in a room with Gallatin, I guess for hours and not realize he was there. And I don’t think you could be in a room with Randolph for five seconds and not know that he was there. And apparently, he didn’t have control of his mind exactly. It would just produce thoughts, and it would produce positions, and he would just volcano-like emit brilliant statements, and they would float in the air and people would walk out of the room. And he was ultimately dissatisfied with the Jefferson administration because he didn’t think it had been Jeffersonian enough. And he blamed that on Madison, which probably there was a root of accuracy in that. I mean, there was a knob of accuracy in that.

John Grove:

And it’s always interesting to see that a lot of the old Republicans right around Madison’s election they gravitated around Monroe. But then by the time Monroe actually gets to the presidency, Monroe’s much more like Madison than he is like-

Kevin Gutzman:

Well, Monroe actually… Of course there’s a story in the book about the evening that Randolph realized that Monroe had betrayed him, and he wrote in his diary, the date, Richmond, Virginia, James Monroe, traitor.

John Grove:

I remember that. Yeah.

Kevin Gutzman:

So some people are more principled than practical, and here we’re looking at a continuum. I guess Jefferson is probably the second most principled of the four guys, and Madison’s probably the most practical of those four guys.

John Grove:

Well, on that theme, really, so a good way to wrap up the conversation is the Democratic Republican Party, the Jeffersonian Party kind of merged in the 1790s as an opposition party. So being an opposition to those in power, of course they’re drawing all sorts of inspiration from English opposition, tradition, but then all of a sudden you’re the opposition in power. So that’s always been a conceptual question about the Jeffersonians. Can an opposition party then take power and govern effectively and still maintain the same identity? Of course, people like Randolph were saying, no, the identity has been lost. I kind of get the sense, the way you end the book, I won’t give away the last line, but the last line is maybe kind of suggestive that by the time they had several years of governing under their belt, they had really evolved and changed into a very different party.

Kevin Gutzman:

That gets to the question how Jeffersonian were Madison and Monroe. I think that one significant distinction among these people is that Madison didn’t have independent executive experience before he became president. The other guys have been governor, and in Virginia that had real authority. The book, after I’d start with a significantly long consideration of Jefferson’s first inaugural address, which I think again, laid out the program, they were all three going to follow, I describe events around Richmond as the election was impending, and Monroe has to make independent decisions that are going to be very important.

Madison really never had that experience until he was president, and it’s not clear, as I was hinting before, I don’t think it’s clear that he really was, I don’t know why that goes so far as to say competent to making executive decisions, but he certainly was not expert at coming to final conclusions. He was more of a debater than an actor, I think. So that’s a distinction among them, but I don’t know how much I would say the party had changed by the time in Monroe was president, he still favored slight spending, concentration of authority in the state governments instead of in the federal government. He didn’t want to have a significant military, although he’d learned the lesson that the Madisonian idea of economic coercion was a flop. So I would say that all three of them were Jeffersonian, really. I think they were.

John Grove:

What gives way then to John Quincy Adams, which you suggested not a Republican, so-

Kevin Gutzman:

No, that’s different. He’s a bird of another color. He never-

John Grove:

A Federalist revived or?

Kevin Gutzman:

After he quit the Federalist Party, he never said he was a Republican, but he never said he was a Federalist again either, so. In fact, I think he may have said that he was neither. On the other hand, I don’t think his father would’ve been uncomfortable with his program.

John Grove:

All right. Well, Kevin Gutzman, thanks so much for joining us and talking about this is a really fascinating period of American history. I do sense, I think a lot of people who are well-read in the founding era sometimes the knowledge just kind of drops off at 1800. There’s the big election of 1800, and then a few things happen. But this book really, really fascinating book. It’s thorough, it’s also entertaining. There are lots of little nuggets, some of them very, very funny nuggets. And so it’s out now, highly recommended. Thanks so much for joining us.

Kevin Gutzman:

You’re welcome.

Brian A. Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

Libertarian Crossroads? Dec 16, 2022

In his new book, Burning Down the House, Andrew Koppelman argues that libertarianism has gone down a dangerous path inspired by Ayn Rand, Robert Nozick, and Murray Rothbard. He joined host Rachel Lu for a spirited debate and discussion about limited government and the role of the state.

Rachel Lu:

Hello. Welcome to Liberty Law Talk. I am Rachel Lu, associate editor at Law and Liberty, and with me today, I have Andrew Koppelman. He is the John Paul Stevens professor of law at Northwestern University and the author of several books. But today, we are going to be talking about his newest Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. Thanks so much for being with us today, Andrew.

Andrew M. Koppelman:

Thanks for having me.

Rachel Lu:

So, I think we should really just dive right in and talk about this title here. I don’t think there’s a need for some fancy preamble on my part. I actually thought the title was very clever because there is a metaphor in here, but there’s also an actual burning house that you refer to in the book, which you take as an example that will help us to understand what’s gone wrong with libertarianism. So, talk about that a little bit. What is the burning house and why did that become your title?

Andrew M. Koppelman:

So, Obion County, Tennessee did not have its own fire department. It contracted with a nearby town for fire protection, but it didn’t do the contracting. Each individual citizen made a private contract with the fire company for protection, and there was an old man named Gene Cranick who had been paying his fee for years and he’s getting old. One year, he forgot and his house caught fire. His wife called the fire department, and the fire department told him, “Sorry, you didn’t pay your fee. We can’t help you.” Eventually, they came down in order to make sure that the fire didn’t spread to his neighbor’s houses because his neighbors had paid the fee and his house burned down.

This generated a furious debate in the press afterward about whether this was appropriate behavior and there were folks on the right and the left who agreed that this was the true face of libertarianism. This was the vision of the future that libertarianism was offering. It wasn’t really so much about the house in particular where this was 2010. What they really were debating was Obamacare. What they really were debating was whether society has any obligation to take care of people who suffer misfortunes that are not the consequence of rights violations by other people.

Rachel Lu:

Right. Very good. An interesting example, also good, because I remember this and probably a lot of people do, right? I remember this debate about the burning house, and this is going to go on thought to have a metaphorical edge to it, right? Because you want to think about the way that libertarianism as a philosophy has burned down in a sense. I want to talk about that in just a moment, but first, I wanted to get in a question to make sure that I don’t forget it. You indicated in the book that you became interested in libertarianism at this time, at the time of the burning house.

Then as you say, this was a debate really about Obamacare in many ways. I know you were really interested in Obamacare. Before that point, you’re an established scholar who’s been mixing it up with intellectuals for a long time. Presumably, you already had some familiarity with libertarianism. So, what did you think before that? Did the research pick up on notes from a youthful libertarian phase or was it a total about phase for you? How did this fit into your intellectual life?

Andrew M. Koppelman:

Well, I always believed that we should have a society that accommodated weirdness and difference and idiosyncrasy. My earliest scholarship was about gay rights and anti-discrimination law, but I wanted to respond to the idea that was being offered by libertarians like Richard Epstein, that the culture was none of the state’s business. It seemed to me that one of the things that anti-discrimination law did, first, it interfered with freedom of contract for larger purposes. I thought that that was entirely appropriate. It also was an intervention in the culture to try to change the culture. I thought that that was appropriate.

So, I was interested in libertarianism from quite early, but the Obamacare case took me out of the areas that I’d worked in, which were law and political philosophy with respect to individual rights to larger questions of government power. I thought what was strange about the challenge to Obamacare was that its proponents were trying to cripple the power of the federal government because they thought that that would promote liberty. I thought that that was strange. I thought that people weren’t understanding the extent to which the Obamacare challenge rested on this strange philosophy. In the course of writing a book about the Obamacare fight, which I did, I got deeper into libertarian philosophy.

I was surprised to discover that I liked Friedrich Hayek and his original formulation of libertarianism in 1944 better than I expected to. I was more sympathetic than I had been when I had read him in college and in graduate school. I also, for the first time, read Ayn Rand. Lots of people read them in high school. I did not. I was absolutely horrified and I found this stuff repellent. One of the remarkable things about the fire story is that I found a lot of libertarians treating them as if they were the same, Rand and Hayek, but they’re in fact radically different.

Hayek would never have a fire department stand back and watch a house burn down. He was just less doctrinaire than that. He was a big fan of free markets. He thought that people on the left should not sufficiently understand the value of free markets, but he also thought that there was a role for government to take care of a huge range of human needs that markets weren’t going to supply.

Rachel Lu:

Yeah, and it’s interesting, I’m your fellow traveler there. I think I also read Rand exactly that same period as the right is going through this very hard libertarian phase. I don’t think you should read Rand for the first time when you’re a full-fledged adult, because if you’re not 16, you read her and you think, “Wow, I guess I thought there must be something more or better or something in here. I know a lot of people are impressed by this, but this is just awful. This is it. This is really rad.” So, I don’t know. I hear you there, but let’s move on to talk about Hayek, because Hayek is in some ways the hero of this book, though heavily qualified, but still has a heroic role.

Of course, you go on to make an argument that I’m sure many of our conservative listeners will find extremely counterintuitive. You want to say that the Democrats have become the Hayekian party in truth, though not necessarily acknowledged, right? As the right has moved off in a Randian, Rothbardian direction, right? It’s actually tacking towards anarcho-capitalism, even though as you acknowledge, most people on the right don’t want to think of them themselves that way, certainly now, right? The Tea Party era has waned, at least in its public face. Most of them wouldn’t want to say that. But talk about what it is that Hayek gets right, that you think Rand and Rothbard have wrong.

Andrew M. Koppelman:

So, to understand Hayek, we’ve got to go back to when he wrote the Road to Serfdom, which was his big intervention. He didn’t mean it to be an intervention in American politics, but it was. He was really responding to the program of the British Labor Party, which wanted to nationalize the means of production and put all heavy industry under the control of central economic planning. In the late 1930s, the world’s most admired economic managers were Joseph Stalin and Adolf Hitler, because they were the ones who had turned their economies around and they were both booming. Russia had been a backwater. Now, it was building steel mills.

There’s high employment, and they’d ended the inflation in Germany while France and Britain and the United States were all experiencing high unemployment. So, there was a broad consensus among intellectuals that economic planning was the only way out. They didn’t like the dictator’s methods, but they thought something like this was necessary. Hayek, who at the time was a professor at the London School of Economics, he had grown up in Austria, but he was now in London, wanted to argue that central economic planning was necessarily going to be wasteful and tyrannical. That’s the argument of the Road to Serfdom. T

he book was an unexpected hit in the United States where conservatives who were opposed to the New Deal were looking for some good intellectual rationale for the position that they already had. Hayek just turned out to be exactly what they wanted, but it was always a poor fit, because Franklin Roosevelt never proposed central economic planning. There was something approaching it that was tried in the first years of the New Deal, but he had pretty much given up on that by 1934. After that, what Roosevelt was offering was welfare state capitalism where you have capitalist economy but with a safety net. So, that you wouldn’t have destitute old people. You wouldn’t have destitute poor people.

The program of the Democratic Party since then has been about expanding the safety net to provide for the people who lose out in a capitalist economy. The Road to Serfdom wasn’t opposed to that. The argument in the Road to Serfdom at least, was that capitalist economies are not going to give people what they deserve. They’re just going to efficiently promote production and they avoid the tyranny that you would get if there was central economic planning. So, there really isn’t anything in the basic ideas being put forth in that book that Bernie Sanders or Elizabeth Warren would reject.

We are arguing about the size of the welfare state, about what protection there ought to be, but Hayek, in 1960, again arguing against the British case, argued that you don’t need to have a national health service with doctors on the payroll of the government. It’d be much more efficient to give people vouchers and let them buy subsidized insurance on the private sector, have private insurance companies compete with one another to provide insurance. Of course, you’d have to require the insurance companies to write insurance for everybody so that they couldn’t exclude people who were sick and you would have to require everybody to have insurance.

By the time you finish reading this passage of the Constitution of Liberty, another book that Hayek writes in 1960, by the end of that passage, you can see today he has outlined Obamacare, all of the elements of Obamacare proposed by Hayek in 1960. He does, as he becomes older, become crankier about a welfare state. He is terribly afraid of democracy, because he thinks that the democratic governments are going to redistribute and destroy a capitalist economy. He ends up becoming friendly with murderous tyrants like Pinochet in Chile. But his original formulation I think had something quite valuable to offer, and the Road to Serfdom is still worth reading.

Rachel Lu:

So, it seems to me like you’re probably right that most people on the left would agree with Hayek about some fundamental principles. They certainly would agree that it is okay to engage in some level of redistribution in order to help people in desperate circumstances, but most people on the right would agree with that too, right? That’s not going to be a terribly controversial suggestion on either side of the political spectrum. So, I think maybe we need to distill a little bit more clearly what mistake it is that you think comes through Rand and Rothbard that you think is so important or invigorating on the political right.

Andrew M. Koppelman:

Well, the shift that has happened over time in libertarian thought is the view that the smaller the state is, the better the state is, the more free we are. The larger the state, the less free we are. That’s an argument that has been put forth by the writers who I take on later in the book, not just Anne Rand, but Murray Rothbard and Robert Nozick and Ludwig von Mises and Charles Koch who’s enormously influential in American politics.

While there are lots of elements of the Republican party that don’t embrace that view, if you look at the track record of the Republican Party, the last time they held the presidency and both houses of Congress, what they actually managed to accomplish was enormous tax cuts for the rich and gutting the regulatory apparatus, the administrative state. The Trump administration basically tried to cripple regulation at every opportunity that it had. There was a massive effort to abolish Obamacare and to take health insurance away from about 20 million people in order to have even more tax cuts for the rich.

This is not Hayek. This is a vision in which the smaller the state is, the lower taxes are, the better off we are. So, it actually has in practice quite a lot of power within the Republican party. You saw it just before the last election when the Republican leaders were talking about what they would do if they captured both House of Congress, which they hoped to do. They wanted to make the Trump tax cuts permanent and they wanted cuts in Medicare and social security. This is not Hayek and this is Rothbardian.

Rachel Lu:

Well, but what’s the argument for why it is necessarily Rothbardian to want a smaller state? Presumably, part of the background for this is that you’re right, most people on the right want the state to be smaller than it is. That doesn’t necessarily mean that we want it to be as small as is absolutely possible without descending into total anarchy. But if most people want it to be smaller that it is right now, if they have an idea that the state is doing too much, then for practical purposes, they’re always going to be attracted to any platform that promises to reduce the size of the state somewhat.

But I guess my question would be, do you have good reasons to think that the motivation for wanting that is really fundamentally Rothbardian or might there be some other reasons for that that are more sympathetic maybe, dare we say more Hayekian that are worth fleshing out and responding to?

Andrew M. Koppelman:

So, the useful work that Libertarians continue to do today I say in the book is they are inclined to think that anything the state is doing is likely to be incompetent or corrupt or both. This is always a hypothesis worth investigating. There are plenty of state programs that are counterproductive. If you read Milton Friedman’s books, if you read Capitalism and Freedom or Free to Choose, there’s a whole catalog of things that the state is doing wrong, interfering with the economy in ways that make us all poorer. A lot of the time, he’s right. The hypothesis is always worth investigating. Let’s imagine that you have a doctor who thinks that the body can heal itself and that surgery and drugs are never necessary.

You don’t want this person as a doctor, but he can be a fabulous medical researcher, because it sometimes turns out that there are medical interventions that are wasteful and unnecessary. It turns out, for instance, that there are lots of joint problems that have been the object of surgery. Turns out that physical therapy does the job just as well as surgery does. So, libertarians, I think, do a useful job in entertaining that hypothesis. It’s when you push the hypothesis across the board without attention to evidence that I think that it becomes destructive.

That’s another aspect of the Trump presidency. Trump wanted to get rid of any regulations that burdened industry and had high costs for industry regardless of the benefits. If given regulation is going to cost industry half a billion dollars, even if the amount of lives saved and destruction prevented is going to be 10 times that, well, the regulation is still too expensive and we don’t want to do it because we don’t want regulation burdening the industry.

Rachel Lu:

Right. So, you used that example in the book about the doctor and I thought that was pretty clever and especially good for thinking about thinkers like Friedman, because I think you’re right. He is ingenious sometimes about coming up with explanations for how certain things can happen without state action. They’re not always right. When you think through the details of them, sometimes you think, “No, I don’t actually think that would work.” But because his mind just works like that, it’s always worth engaging. Sometimes you think about aspects of a problem that you hadn’t thought about before and he can be a useful foil that way, even if you decide that he’s not right.

But here’s my concern or at least voicing a concern that I think many conservatives would have that I would share. As you move through the chapters of this book, I think many of us are going to notice there just seem to be a real lack of constraints, either theoretical or practical, on what claims people can make against the state in situations of need. So, conservatives are going to have two pretty significant objections to the growth of the state that aren’t really rooted in this tough luck libertarianism of Rand or Rothbard. They’re rooted more in concerns about subsidiary and the way that civic and community organizations can be stunted or suffocated by the state and then also in concerns about moral responsibility.

When are we stunted in our moral growth as individuals if we just live with the perpetual assumption that the state is going to backstop all of our real needs? Maybe you can’t have anything that you want, but at least anything that you plausibly need is society’s obligation to supply you. How does that affect us as individuals if we just live that way? So those two concerns I think are going to loom pretty large in the minds of a lot of conservatives who are going to agree with you that it’s okay for the state to do some redistribution for the sake of supplying a social safety net, but they’re not going to want the state to do quite so much.

So, the question that I would ask to you maybe on behalf of people who share those concerns is just under what circumstances is it okay for the state to say to an individual, “Yes, you plausibly need this, it would be possible to supply it to you at the public expense, but we’re not going to do that”? What could justify saying that if anything?

Andrew M. Koppelman:

Well, the question of what needs are urgent enough that the state needs to provide them is a question you’ve got to answer at retail need by need. But the specific context in which we were having this argument was the fact that there were large numbers of Americans who either could not afford healthcare or who were going to be bankrupted if they got sick. That seemed to me to be a fairly easy case for remedying the deficits of the market if the market is in fact undersupplying those and one of the things that had been happening as the negotiating position of working class people had become more precarious as it steadily has, is that the number of people without health insurance was steadily growing.

So, in the decades before Obamacare, the proportion of the bottom quintile of workers who had no health insurance had risen from 20% to 40% and was continuing to rise. So, whatever needs you think people ought to be on their own for, medical care if they get sick seems like an obvious candidate for government supplying it.

But I’ll also say if there’s a point that Richard Epstein makes that I embrace in the book that the bigger and more prosperous a capitalist economy you have and the more opportunities people have to provide for themselves, the smaller a welfare state you need. It was because there had been developments in the economy that had caused the enormous growth of wealth in the United States over the last few decades to pool at the top that you had people in this precarious position. An economy that is doing better without welfare provision for the people at the bottom just needs a smaller welfare state.

Rachel Lu:

So, it’s interesting because I agree that we need to do something to help chronically ill people who can’t afford their health insurance, but where to you, it seems like this is, as you just said, an obvious case where the state needs to come up with some reliable way to help people who are in need. To me, it seems like a very, very difficult case. In the book, this is several times, you draw the comparison. You quote Locke for instance, talking about how we have a clear obligation to ensure that people don’t starve. Then you suggest that, “Well, it obviously cross applies to things like medical care.” To me, that jump seems like a really big one. You say, “Well, death is death.”

Actually, you say that in the book, death is death. It doesn’t matter if it happens because we can’t get food or because we can’t get medical care. Either way, you’re just as dead. So, these things are fundamentally the same. We have to provide people with medical care the same way that we can’t let them starve. But to me, I’m going to say no, those aren’t the same at all. Those are dramatically different. Obamacare was an interesting illustration of how different they are. Why are they different? Well, one reason is because there’s not really any limit to how much healthcare people might plausibly need to consume.

Whereas the human body requires a certain number of calories, right? Two to 3,000 per adult is going to be fine. Once you get those, you’re pretty much good. We can get everybody that number of calories in the United States today and then you’ve met that need, but that’s not the case for healthcare. The reaper always wins in the end. We’re staving him off indefinitely. So, the number of medical interventions or treatments that might plausibly allow people to live a little longer, you can’t quite say unlimited, but it almost seems to be getting there, right? People can consume a lot of healthcare, but also, it’s just a lot more invasive. If my physical person is the responsibility of the state, that opens a huge range of questions.

How my responsibility to take care of myself dovetails with society’s obligations to me. At what point in time is it okay for the state to exercise some paternalistic relationship and say, “Well, Rachel, I know you want to be a rock climber, but because we’ve agreed to backstop your medical needs, then we don’t think we can let you take that risk. So, no, we’re not going to allow any more climbing in Yosemite. It’s too dangerous now that we have agreed”? So, there’s a lot of questions like that that are opened by the healthcare concern that just don’t seem to be opened by the demand for food. Do you worry about any of those?

Andrew M. Koppelman:

Well, to begin with, in fact, as a matter of American political culture, the enactment of Obamacare turned out to be no danger to Yosemite rock climbers. They’re still climbing. So, that particular slippery slope did not in fact happen. I mean, there is this problem about the unlimited character of medical care. It’s a problem that everybody faces. In fact, the insurance that is paid for or subsidized by Obamacare has treatments that it won’t pay for. That is a separate problem, but what Obamacare does in all of its forms address is the much easier cases that it requires, for example, that health insurance companies make free visits to preventive care visit to the doctor available on an annual basis with no copayment.

Now it doesn’t control. People are still free not to go to the doctor in the same way that we’ve got a food stamp program, but people are permitted to starve themselves if that’s what they want to do. We don’t force feed them. But it turns out that if you make these options available, lots of people are going to take them and those people are going to lead healthier and longer lives than they otherwise would. Healthy long lives are an element of human liberty.

Rachel Lu:

If you think though that the growth of the state has these negative impacts on us as individuals and potentially on civil society at large, then you can see how something like Obamacare is going to raise a lot of serious concerns. When you just say, “Well, these concerns are not going to come to fruition, it’s all going to be fine,” people aren’t necessarily going to be reassured by that when what you want to do upfront is dramatically change the system that’s already in place.

You want to do that basically on the argument that we absolutely have to because there are people in need. That’s when you get people who are going to come back and say, “Oh, so every time people are in need, we just have to make any necessary changes in order to ensure that they don’t have needs anymore. Can we at least spell out some conditions under which that might not be obligatory?”

It seems to me that you don’t really do that all that much in the book. So, I think that’s still going to be a lingering concern. People are going to feel like you haven’t really explained why the growth of the state can’t just be relentless, can’t just be endless. Once that becomes true, then we’re going to be really concerned about these issues of subsidiary and moral responsibility.

Andrew M. Koppelman:

So slippery slope arguments are always empirical arguments about what is in fact a danger and what dangers are likely to emerge in the world, but these same slippery slope arguments were made against social security. They were made against Medicare. There is a famous speech by Ronald Reagan in which he argued in the early 1960s that if Medicare was passed, that would be the end of freedom in the United States. It’s just not the case. Obamacare is now an element of American life, and it has now evidently become politically untouchable. It doesn’t feel like it’s not a free country anymore.

Nobody is forcing you to do anything medically. It is just the case that if you can’t afford to pay for your medical care, which is true of a very large number of Americans, that you will still get the medical care. There are easy cases, but you’re right, I don’t have a set of an elegant philosophical theory of the necessary and sufficient conditions of human need that warrant government subsidy. I think that that’s got to be negotiated politically.

Rachel Lu:

So, you mentioned social security in Medicare. You might anticipate, I don’t know, that for somebody like me… You mentioned that several times in the book. Actually, in the book, you seem to mention social security a lot more than Medicare. I was curious whether there was a reason for that. Are you more confident in the case of social security than in Medicare or it just happened like that?

Andrew M. Koppelman:

Well, social security has been around longer, and so it has been more of a libertarian target. If you read libertarian writings from the 1930s to the present at any given time, if you read Libertarians in the ’40s, the ’50s, the ’60s, the ’70s, one thing that is a constant is that they are always confident that social security is going to go bankrupt in the next 10 years. That has just been a theme that has persisted.

Rachel Lu:

So, do you really think that programs like Social Security and Medicare are sustainable over the long haul?

Andrew M. Koppelman:

Yeah, I think that the broad purposes of these programs is to make sure that old people have a decent standard of living and have adequate medical care. The country is phenomenally richer than it was in the 1930s when these programs were enacted. We can afford to pay for these because we are so much richer. The principle impediment is that all of the money is pooled at the top and it’s politically difficult to get at it, but that’s a political choice.

Rachel Lu:

I don’t know. I think the numbers on that really, really are pretty bleak, right? Because yes, of course, these programs were designed to stave off penury in old age, but right now, they’re paying out massively more than they’re bringing in from younger workers. We’re paying for these programs by adding to the deficit, but we have shrinking numbers of workforce age adults and growing numbers of elderly adults. I think it’s pretty widely agreed at this point that especially in the case of Medicare, this is becoming a real problem. We’re going to have to change the thing in some way in order to make the program sustainable. That’s pretty difficult, because once you establish an entitlement program, people expect to get that.

They build their lives around that expectation. That seems to me like exactly the problem in fact that Hayek was worried about when he said, “Well, this is going to end up redistributing wealth from the young to the old. It’s going to cause intergenerational resentments and it’s going to distort people’s incentives in such a way that it may eventually become socially sustainable.” I look at elderly entitlements and I say, “Yes, and yes, and yes, I was right about all of that. These programs are a very serious problem.” I mean do you anticipate that there’s going to be some change that’s going to make even Medicare sustainable over the long run?

Andrew M. Koppelman:

Well, I agree with you that politically, it is not possible to tell old people, “Sorry, we can’t afford to pay for your medical care anymore.” But I also think, I’m going to repeat myself now precisely because in our general running of the economy, we have been Hayekian and the country is so enormously more wealthy than it was even 30 years ago for us to say now, “Well, if you are old, we could have afforded to pay for your medical care 30 years ago, but now we’re too poor to do it and we can’t do it anymore.” It’s just wrong. There’s more wealth, much, much more wealth than there was 30 years ago. So, I wouldn’t focus on specifically the number of younger workers. I would focus on the amount of wealth that is available to the society.

Rachel Lu:

Well, what about the fact that we are right now using elderly entitlement programs to transfer wealth from younger workers to older adults who in many cases are far wealthier than these younger workers and were wealthier than them in their own youth? So, we’re actually transferring wealth away from a plausibly needier group of people to one of the best financially established groups in America. That’s just happening right now. It’s the situation that Hayek foresaw and that I think inevitably is going to happen when you establish things like these entitlement programs. Does that seem to you like an injustice?

Andrew M. Koppelman:

Most old people in fact depend on social security for most of their income. Most old people are not all that rich. So, the biggest problem with social security, I would say, is that it’s regressive, the amount of taxation is capped. You pay a percentage of your income up to a certain limit. After that, the very richest workers with the highest incomes are off the hook. There’s been some talk of changing that, because again, there’s quite a lot of revenue there. A big shift in the American economy over the last several decades is that wealth is concentrated at the top. I could pay more in social security. I could afford it.

Even if the payments were not going to increase, the richer people can afford to subsidize the poorer people. But now, we get into the weeds of policy. The broad idea of libertarianism that I’m trying to address in the book is the idea that social security is morally wrong, because it redistributes and redistribution is a violation of human rights because it takes money away from people who did nothing wrong. That’s the fundamental libertarian idea that I’m trying to challenge. I mean, we can talk about policy. It’s just got nothing to do with my book.

Rachel Lu:

Well, I understand that, but I think it does. Maybe I’m not explaining this well. What I’m trying to get at here is that I think most conservatives are going to agree with you on the point that you’re trying to carry, but they still don’t like social security and Medicare and they don’t like a lot of things that the state is doing right now for other reasons. They think that these programs are problematic for the two reasons that I’ve already said. One is that they teach us to see the state as the primary entity that backstops all of our fundamental needs.

That creates a lot of injustices like the ones I think we’re seeing right now where a lot of wealth ends up getting transferred away from people who plausibly have needs to other people who in many cases at least aren’t as needy, but it also leads to a lot of negative kinds of incentives that both train people to live less productive and less morally responsible lives and also disincentivize the formation of different kinds of civil society. It seems like you just want to say, “No, I’m not really very worried about that. I think it’ll be fine. That’s not the question that I’m interested in.”

But if that’s the question that conservatives are interested in, most people on the right, and if many of us think, “No, we really don’t think it’s fine,” then my point is it may not be correct to suggest that the right is overwhelmingly Randian or Rothbardian. It may be that people on the right just don’t agree with you that social security and Medicare are well-functioning programs. They don’t agree with you that the threat to individual moral development and community is trivial and that’s why they’re opposed to the growth of the state. They’re not Randian. They’re Hayekians but Hayekians who disagree with you about a number of maybe more practical questions. That’s my point.

Andrew M. Koppelman:

There are two different issues here, and I want to separate them out. One is the specifics of the programs. I’m not addressing those in the book. The question about whether these programs could be designed differently is separate from the question of whether it’s legitimate for the state to do anything at all about people who in old age can’t afford food, housing, and medical care. I mean, any government program generates dependency. I’m sitting here in my house and I don’t own a gun and I have no ability to defend myself if I’m attacked because I rely on the police and my reliance on the police is a dependency. You could say, “Look, Koppelman, this is destroying your character. You really ought to be more self-reliant and defend yourself.”

But I think that it’s better for my liberty to not have to think about the danger of being physically attacked because I got a reliable police force. Even people who are barely making it on their wages, who don’t have the resources to set aside a fund for their old age, provide for medical care for their old age, I don’t think that that destroys their character. I think that makes them freer. Now, there is a concern that you’ve raised that we do know that some programs have been counterproductive and have generated kinds of dependency that are counterproductive for the people who are the objects of the program, that some welfare programs meet that description and some don’t.

I go back to my claim that libertarians provide a useful function to the extent that they call attention to particular pathologies of particular programs. Sometimes they’re right. Sometimes welfare programs do create dependencies that are bad for human flourishing, but it’s just way too broad to say that this is true of government programs generally. The logic of that position does extend to the police force, and I like having a police force.

Rachel Lu:

Yeah, absolutely. I think that you actually do have some examples in the book that are pretty good for thinking through some of the forms of, you might say, nanny statism, that we plausibly want. One of the things that you point out in the book is that modern life is just extremely complicated. In many cases when you think about all of those complications, you do want to say, “Yeah, I think it’s actually fine for the state to have somebody figure out which toxins can’t be in my lake that I live by, which ones are going to poison my children and then send people out to test the water and make sure that those toxins aren’t there.” I’m not going to do that on my own. I don’t have the relevant expertise. So, sure, I’ll pay taxes for somebody to do that.

But what I’m saying I think is that a lot of us on the right think there are a lot more cases than Democrats want to consider in which it’s not good for us to have the state playing that role. I think a lot of us think that, yeah, programs like social security and Medicare have infantilized us in ways that have undercut our flourishing as human beings. They’ve really fundamentally changed our relationships to our own families and to our own communities. Even if there are some positives to that, there are also a lot of profound negatives to that that we’re really concerned about. So, to loop this back to your argument, what I’m saying here is I think your point that you want to make against Rand and Rothbard, I think you make it very effectively.

I would grant you victory on that point, but insofar as you think that you’ve won a victory against the entire political right and you’ve shown that the Democrats are the real Hayekian party and that the Republicans are off on some Randian protest against the world or something, it just doesn’t seem as convincing to me, because I don’t think that the motivations most conservatives have for protesting the growth of the state are fundamentally Randian. I think that they’re more rooted in these other concerns about moral responsibility, moral development, civil society, community and so on and so forth.

Andrew M. Koppelman:

Well, I think that the United States needs a responsible conservative party that is suspicious of the left’s proclivity, and the proclivity is certainly there to reach to the state for a solution to all problems. I think that people on the left have a tendency to be too optimistic about the state’s capacity to solve problems. This is an argument that we should be having at retail program by program. So, I think there is a valuable role for a responsible conservative party in American politics. I remember when there was such a party and I miss it.

Rachel Lu:

Well, do you think it’s possible? This is a question that I had for you. You have a brief flyby discussion of Aristotle in the book, and there are a few things that you say. I mean, there’s a couple places in the book where you basically just tossed to the side any distinction between killing and letting die for instance. Oh, not giving somebody medical care when you could is pretty much like murdering them or something. I mean, to a Catholic intellectual, that’s putting up a big sign that says, “Fight me, but I restrained myself a little bit.”

Andrew M. Koppelman:

That’s Locke. John Locke says that. I just quote him.

Rachel Lu:

Well, but even if that’s true, you’re quoting him with approval and you want us to apply that to present situations, right? I don’t think we actually want to spend the whole time talking about trolley car scenarios or things of that general nature. So, I haven’t gone that direction. But I do want to ask you, doesn’t it seem possible that many of the questions that we’ve been discussing here about the proper size of the state will only be answerable if we do have more detailed discussions of human nature and how it affects us as human beings when the state is playing a certain role in our lives? It seems to me that you don’t really want to do that very much. You mostly just want to say, “Oh, well, people should be able to pursue whatever life they want to have.”

But if you’re not prepared to enter more deeply into questions about human nature and what rural development requires and what healthy community and family life require, then it may be that a lot of the negative impacts of state programs on human life are just going to be invisible to you. You’ve already decided from the beginning that you’re not going to look at those kinds of problems or you don’t care about them or something, but then for somebody like me, that’s going to seem like a pretty see no evil approach.

All of the harms of state programs that I think are most significant and are actually seriously undercutting our thriving of human beings, you’ve just decided from the beginning of the book that you’re not going to talk about and that’s going to make a lot of it amiss with me.

Andrew M. Koppelman:

I don’t think that I’ve done that at all. I say repeatedly in the book that state programs can be counterproductive and destructive and they can have that effect, but once again, I think that you’ve got to think about that at retail. So, just the talk about the size of the state, you need to disaggregate the functions of the state. So, pollution regulation, for example, which you talked about, it’s just basic physical harm. I am making money by running a factory that dumps toxic chemicals into the river that children are going to drink. This is just basic harm prevention. But if you want to prevent that harm, you need an enormous scientific bureaucracy to figure out which chemicals are harmful in which ways.

You need a big state in order to provide this level of basic protection. Most of what the federal government does is Medicare and social security. We can talk about how to design those programs, but if old people are going to get a basic standard of living and decent medical care, you are going to need a transfer of funds on that scale. You think you can redesign the programs to make them more efficient. Hooray, I’m in favor of it, but the fundamental question is, are you going to do anything about that?

I talk about the earned income tax credit, which responds to the destructive dependency that the welfare state has produced by telling poor people, “Look, you get a job and you make any salary at all and we will supplement your income. So, that you have a decent standard of living, but you got to have a job. You got to work. You cannot be purely dependent on the state.” That’s the shape that the welfare state takes today primarily, and it does not in fact produce the kinds of dysfunctions that the older welfare programs did.

Rachel Lu:

So, suppose I say, “Well, one of my concerns about elderly entitlements is that it seems like they fundamentally undercut people’s incentives or inclinations to marry and have families.” The reason people used to do that is so that they would have people to care for them in their old age. But also, when generations are more connected by need, they’re just more aware of the relevance of family connection, of intergenerational ties, and so on and so forth. So, you say, “We have to do these calculations at retail.”

Suppose I’m looking at a young person who’s trying to decide what to do with their life, and I say, well, that person today thinks, “All right. Well, my parents are cared for by the state, and I will one day be cared for by the state. So, when I think about my personal goals, I don’t really see why new humans need to enter into that.” That person doesn’t go on to have a family. They end up pursuing some single life or possibly married childless lifestyle. Something like that is most appealing to them. Is that a retail level calculation when I start thinking about how that impacts people’s decision making or where do we fit that into the conversations we have about the appropriate role of the state?

Andrew M. Koppelman:

Well, there are today lots of people who have children because they want to have children, not because they are terrified of being destitute in their old age. I think that actually wanting to have children is a better reason to have children than financial considerations. Everything that we know about relations between old people and young people before social security, the relations of dependence weren’t sources of happiness on either side. We know that now. I mean, there are some people who live with their adult children, but in fact, the overwhelming preference of old people is to live separately and to not be in the same house as their children.

It’s not like they don’t have relationships with their children. They just want to live independently from one another. We have stories of the old people trying to manipulate and wheedle support from their younger children because they are financially terrified. I just don’t think that financial terror is a good basis for family relationships. I see members of my family who I don’t depend upon at all just because I love them and I want to spend time with them. That seems to me to be a better basis for family connection.

Rachel Lu:

So, clearly, I’m much more concerned about this than you are and I could bring forward a lot of further issues. So, things like these really sad articles you read sometimes from therapists who say, pretty much, my office is full all day long of people who either a parent or a child has just decided they don’t want to have a relationship with them anymore. It’s a one way decision. More often it’s the child who makes this decision, but it can go either way. Usually, the explanation is just, “Oh, I don’t like your political or religious or social views. I feel hurt that you’re not as supportive of my life choices as I’d like.” Whatever, something like that. It’s not some serious case of abuse, but relationships are messy sometimes.

Maybe the other person just said, “I don’t think I want to deal with this one anymore.” So, I’m a lot more concerned about those things than you. But instead of trying to solve that question, I just want to say my real question to you is, is there room in the parameters of your debate even for talking about questions like this? Because I think that is the type of concern that people like me have with the growth of the state. But when you keep coming back to the response, “Well, we just have to look at this at a retail level,” I’m going to be inclined to say, “Yeah, but what you consider to be retail level considerations don’t really seem to include a lot of the broader considerations that I have about human beings, how they develop, and how they’re most likely to thrive.”

It seems like both at the top theoretical level and then down at what you call the retail level, you have already decided that you’re only interested in looking at certain kinds of considerations that seem to screen out a lot of the concerns that I really have. I think many other traditionally inclined people would have. Where do we talk about this? Do we talk about individual dependence when we’re talking about Hayek and high level government considerations, or is this somehow supposed to be something that the policymakers deal with? Because I feel like that whole level of analysis just got squeezed out in your jump from political theory to “retail level” considerations.

Andrew M. Koppelman:

Well, one of the basic presumptions of liberalism is that if you give people adequate resources that the institutions of community and family that you care about are going to flourish, because people are going to make good choices with their freedom. That’s I think true of most people. I mean your therapist’s offices tend to be inhabited by people who are in some way dysfunctional and need therapy. They’re not a good sample of the population as a whole. I mean, this has been a problem for liberalism from the beginning.

If you allow people to make their own religious choices, some of them are going to choose false religions and should the state tolerate that. One of the basic presumptions of giving people freedom is that people are competent to decide what to do with it. I mean the fact that the state got out of the religion business in the United States has made the United States one of the most religious countries in the world. It turns out that people are attentive to these things if you just let them decide how to live.

Rachel Lu:

You know what I’m going to say here. We got to wrap this up, but it feels to me like we’ve come circled around to a place where you are being the tough luck libertarian now. You’re telling these people in the therapist’s room, “Look, this isn’t my problem. If you didn’t raise your kids right, then I can’t help you now.” Where I’m the one who wants to say, “No, we need to be making decisions at a higher level to help people have more fulfilling lives and flourish and feel real and important human needs.”

Maybe an interesting place to have gotten to. I feel like I should give you an opportunity if there’s anything in conclusion that we didn’t hit that you want to mention about the book or that you want readers to be attentive to. We have a generally classically liberal audience. So, if you want to make any pitch for why they should be interested in your book, now is the time to do that before we wrap up.

Andrew M. Koppelman:

Big takeaway of the book is that libertarianism comes in flavors. The reason why I wrote this book was because when I was writing about the healthcare case, I saw that it was being animated by a libertarianism. So, I tried to learn about what’s libertarianism, where’d it come from. That’s why I was reading Hayek and Rand. There was no good general introduction to libertarianism that was not written by an enthusiast.

So, I thought a good critical overview of what this set of ideas is, where it comes from, I thought was badly needed. So, if you are classic liberal inclined, I think the book puts some pressure on your views and tries to sort out what is alive and what is dead in that view. I think it’s better to be awake than to asleep. It’s better to reflect on your political views than not.

Rachel Lu:

Thank you so much for that. The book we’re discussing is Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. It is… I didn’t say this before so I should say it now. … a very readable volume and you don’t need to have a lot of background in either law or political theory to read it. It really just reads very nicely. So, anyone with an interest in that, I would encourage you to go out and check out Andrew’s book. Thank you so much for being on with us today.

Andrew M. Koppelman:

This was fun. Thank you, Rachel.

Rachel Lu:

This was fun. Yes, thank you so much.

Brian A. Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. Please visit our journal at lawliberty.org.

America's Economic Crossroads Dec 02, 2022

Veronique de Rugy joins host Samuel Gregg to discuss the state of classical liberal economic ideas in Amerca.

Brian A. Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org. And thank you for listening.

Samuel Gregg:

Welcome to Liberty Law Talk. My name is Sam Gregg, and I’m distinguished fellow in political economy at the American Institute for Economic Research, and I’m also contributing editor at Law and Liberty, part of the Liberty Fund Network. Thanks for joining us today. Classical liberalism and classical liberal ideas have long played an outsized role in modern American politics, especially on the right. Today, however, we seem to be living through a period of retrenchment, whereby, classical liberal ideas are under siege from the left, but also increasingly from the right. Economic nationalism seems to be in the ascendancy on the left and the right, and much of the American business world has lurched in the direction of what’s often called stakeholder capitalism. We even find parts of the American right seemingly willing to even embrace and use something that most conservatives have at least theoretically opposed, that being the administrative state. Some national conservatives insist that classical liberals have been in the driver’s seat of the American conservative movement for too long, and that it’s time for them to step back. So what’s happened to classical liberalism in America? Did classical liberals make mistakes in pursuing their limited government agenda? Is there a chance that the band, otherwise known as fusionism, might get back together? Are classical liberals now condemned to being friendless for a generation? What does it mean to be a classical liberal in America as the second quarter of the 21st century looms. Joining me to discuss these and related questions today is one of America’s leading classical liberal economists, Dr. Veronique De Rugy. Dr. De Rugy is the George Gibbs Chair in political economy and senior research fellow at the Mercatus Center at George Mason University. Her primary research interests include the US economy, the federal budget, taxation, tax competition, and cronyism. Her popular weekly columns address economic issues ranging from lessons on creating a sustainable economic growth, to the implications of government tax and fiscal policies. She’s testified numerous times in front of congress on the effects of fiscal stimulus, debt, and deficits, and regulation on the economy. She’s the author of a weekly opinion column for the Creators Syndicate, writes regular columns for Reason magazine, and blogs about economics at National Review Online‘s The Corner. Her charts, articles, and commentaries have been featured in a wide range of media outlets, including Bloomberg Television, The New York Times, The Washington Post, The Wall Street Journal, CNN International, C-SPAN’s Washington Journal, and Fox News. And I think it’s fair to say that she is the scourge of that most crony-est of outfits, the Export-Import Bank. Vero, welcome to Liberty Law Talk.

Veronique De Rugy:

Thank you for having me, Sam.

Samuel Gregg:

Vero, you’ve been involved in the world of classical liberal ideas in America, but also in Europe, particularly France, for a long time. And in the 1980s and 1990s, classical liberal ideas, especially about economics, I think, seemed to be in the ascendancy, right? At least at a rhetorical level. But now they are plainly on the back foot. So what, in your view, is the single biggest event, or the single biggest development that’s responsible for this change?

Veronique De Rugy: That’s a very good question. If I wanted to be utterly self centered, I would say that it seems that everywhere I go, classical liberalism loses, because obviously when I lived in France, it was not a classical liberal country, there’s still a communist party, there’s still a socialist party. I mean, command and control seems to be really the way people think about the economy, and the role of government, that most solution comes from the government. And I moved to the US hoping to leave all of this behind, not that I have any illusion that the US was perfect, but certainly, it looked so much better. And ever since, it’s been in decline. But that, I assume, is more correlation than causation. So to answer your question more seriously, I think, obviously, the most obvious answer is we have either not done our job properly, or we’ve been ineffective at making our case, or, and there is something easy and appealing to the case that the government can solve all of your problems. And we have failed, utterly failed, to present our ideas in a way that actually contradict this claim in spite of the evidence. I mean, we live in a world that is abundant compared to where… It should be obvious that a market economy is the way to go. But also, I think we have probably failed to emphasize and talk to people about their real concern. So maybe we haven’t talked to people at their level of concern, and we’ve stayed in this fear of, look, this is great, all is great, the economy is growing, we’re wealthier than we are. And we’ve not addressed people every day concern.

Samuel Gregg:

Well, let’s step back then and take a type of self reflective position, which I think is what you’re doing now. Do you think that classical liberals simply assumed that they had won the economic argument, and they weren’t paying attention to some major cultural shifts that have lent energy to those on the right and on the left, who perhaps were always skeptical about markets, and who never really gave up their faith in things like Keynesian economics, or the different interventionist options associated with things like industrial policy. So do you think that’s part of the issue that the assumption was, we’ve won the economic argument, therefore our major job of persuasion is over?

Veronique De Rugy:

Yes and no. I think this is true for areas like free trade and immigration for a while. But I think in the world that I’ve evolved in, Keynesian economics has always been much more potent and influential, for instance, than the more, I hate to say this, but more free market alternative. So I think it is true for some areas where we took things for granted, because there was a consensus.

Samuel Gregg:

You mean something like trade for example?

Veronique De Rugy:

Like trade. Yeah. And immigration to some extent. There were some things we took for granted, which we assumed we had made the case, and it was done. The thing, in my opinion, that is more puzzling about the last, let’s say 20 years, and what has happened, is that we see people, at least in my case, I see people who have been battling with me in the trenches against the left on central planning issues, on government intervention into their lives, on all sorts of things, who have now flipped their position, and are talking about how the free market is not the answer, or is it worth overriding the allocation of the market in order to achieve a common good? And they are sounding a lot like the people they used to criticize. That, to me, is the most baffling thing. It’s not that we had won, and we took everything for granted. There’s some of that, that’s part of the story. What I don’t quite understand is how you can have such a reversal in beliefs. Not everyone, but in a lot of people. I mean, it’s easy to say it’s opportunistic, that Trump opened the door for a political opportunity that a lot of people were actually were ever that principled, but were more in the business of winning elections, and trying to be in power, saw and jumped into. But I think there’s something more. I’m just not that cynical to think that that is all that is at play.

Samuel Gregg:

So are you suggesting that maybe the case for markets was not as widely accepted as perhaps we assume? That in fact, things like a more or less neo Keynesian outlook on the economy never really went away?

Veronique De Rugy:

Well, I think it… It’s obvious. Listen, even when I say that the case for free market, like free trade for instance was established, right? There were always some people who were skeptical of free trade.

Samuel Gregg:

Right. Pat Buchanan for example.

Veronique De Rugy:

Yeah, yeah. No, I mean, there were always people. Or I mean, if you remember the whole debate about NAFTA, right? I mean, they really opposed two sides very violently. Two sides that I think overstated their position. The outcome of, for instance, I do think… And you talk about this in your book. And I, really, where I said a lot of the free traders at the time probably overstated the impact of NAFTA. It’s not that it’s not a net positive, but it’s not this panacea that is going to make everything fine. And on the other hand, obviously the anti NAFTA people were completely wrong about how horrible it was going to be, and all this, and all that. So it’s not as if everyone wants a free trade, or it’s also not as if, I think, the way people understood the benefit of trade was ever the correct one. I think there was an understanding that was actually profoundly Mercantilist, or profoundly misguided, I’ll say, I don’t want to put a label on it, about it. Where we’ve always said, “You know what? Free trade is great, because it allows us to export more.” And we failed to actually… Because we were getting what we wanted this way, we were getting free trade agreement based on this premise, right? I think we didn’t do, maybe… I mean, I don’t want to blame people. But we have really, it seems, failed to actually make the case that actually the real value of trade is what we import. And in fact, from an economic perspective, from a domestic perspective, export as a cost, or even just making the case that if you want to export more, you need to import much more, right? And so-

Samuel Gregg:

We never really got away from, let’s call them neo Mercantilist arguments.

Veronique De Rugy:

I think the logic of the arguments as we were making them, as a matter of, listen, we’re getting what we want, which are free trade agreements, even though they’re not perfect, even though the logic is misguided, but we’re getting what we want, probably meant that we took things for granted that we shouldn’t have done because people did not fundamentally understand. Did not fundamentally understand what the value of trade truly is. So that’s an example to minimize how far we’ve fallen. I think we were doing great, but maybe not for the best reasons.

Samuel Gregg:

Let’s shift discussion now to an angle which I think you’re particularly competent to talk about with this, a discussion of what’s happened to classical liberalism and classical liberal ideas. You have been relentless, and I mean relentless, in your critique of corporate welfare and the cronyism that’s so widespread in the business sector of the United States. So is part of the challenge for classical liberalism today the fact that many business leaders don’t actually like markets, they don’t like competition? Because if that’s true, if it’s true that large numbers of business leaders are not really onboard with the case for dynamic markets both domestically, but also internationally, that means that an incredibly influential segment of America is not in fact onboard with market and classical liberal ideas. So do you think that this describes part of the challenge for classical liberalism today?

Veronique De Rugy:

It is. But I think our biggest challenge, right, is ultimately, we live in a world that is… Where politics plays a big role, and where the role of government is oversized, and the existence of government, and its ability to actually grant favors, unless we win, and we get some sort of, I don’t know, constitutional amendment that says that no government granted privilege for the private sector no matter what under any circumstances. I mean, it’s always going to be there. And I think if you marry this with the same issue as with trade, which is that people saw the benefit of, at least business leaders, right? They see the benefit of free market. But they actually don’t think about what actually makes it work. And that basically, when they’re given an opportunity to actually get a government granted privilege, meaning a subsidy, a monopoly grant, a tax break that the competitors are not getting, they take it. And they take it because they just… It’s beneficial to them, it’s available to them, they answer to their shareholders, and they maybe not at a fundamental level understand how this behavior in and of itself feeds a dislike for capitalism, for lack of a better word, a free market, for the lack of a better word.

Samuel Gregg:

Whereas, what really is operating here is a type of Mercantilist outlook.

Veronique De Rugy:

Yeah, I mean, it is. In fact, one of the most detrimental and problematic aspect, I think, of cronyism, corporate welfare, government granted privilege, however you want to call it, is precisely that because the government tends to benefit and grant privilege to larger more connected political companies, companies that may actually, in most cases, not actually need it at all but like it, because who wouldn’t want to have better terms for your loans? It feeds this idea, right, that the wealthy and the corporations are the enemy. I mean, if you think, if you go back to the Occupy movement during the Great Recession, I mean, these guys were way… They were right about sensing that there is a real problem of a government that is effectively letting everyone being crushed, but saving a bunch of big banks, having sheltered big banks for a while, and now they’re being saved, the airlines are being bailed out. And it gives this perception, right, that there’s this corruption going on. Of course, the things people mostly don’t see is that you don’t cure this kind of behavior with more government. Or more importantly, in my opinion, that these behaviors only exist because of the government ability to grant this privilege.

Samuel Gregg:

Right. Which is essentially Adam Smith’s point in The Wealth of Nations, in his critique of Mercantilism. So, Vero, we’ve been talking about the economic side of what’s happened with classical liberalism. And we’ve touched on some of the politics. Here’s a question for you which is a little different. And that is, do you think that there are things on the cultural side, cultural developments in America that classical liberals have neglected when they’re making their arguments about limited government, and markets, and all these sorts of things, is that, are there things on the cultural side that they’ve largely neglected to their cost now?

Veronique De Rugy:

Well, I mean, not just on the cultural side, even on the economic side. Actually, your book was, strangely enough, an eye opener for me. There’s this one sentence that I just actually wrote a column about, just this one sentence in your book, which is to actually remind people that economists really make a terrible case for the free market, for what the free market does. And we make it in terms that are as if the price system is the beginning and the end of absolutely everything. When in fact, what is actually beautiful about the free market is that is all the institutions that exist to support it underneath that are necessary, that are conducive too actually create cooperation between strangers, and good behavior really, between strangers. So that, I think, is an issue. Is we economists talk about the market, and the price system in ways that sometimes are counterproductive. Instead of talking about competition as this cut throat thing, what we should actually highlight, at the very least occasionally, is an incredibly cooperation that is enabled by the market economy. I think on the cultural side, I think we have… And I wonder whether it is because a lot of the free market movement is actually made of economists. And so the cultural aspect of this defense for a market economy just totally ignore the cultural side. And I think for instance, you and I have talked about this in the past, I think that we have utterly placed so much emphasis on the market that we have actually forgotten that as important are notion of communities usually underpinned by civil society, which is, civil society is the way that we help one another, basically, outside of the market, right? There is the market ways to do this, but there are also just… There are communities, and there are ways that people actually do good for one another, support one another, feed one another. I mean, the market helps, because it provides wealth to support these activities, but it goes way beyond. I mean, civil society is such an important thing that we should constantly be cherishing. And instead, I think we’ve overlooked it at great cost in my opinion.

Samuel Gregg:

So you think classical liberals should be saying more about the civil society side of things. So all these associations, communities, that are not state, but they’re also not economic associations either.

Veronique De Rugy:

And think about it this way, right? So again, I think that the fact that so much of our community are community of possible liberals are made of economist, I think basically puts forward this individualistic side of a market economy, right? It sure leads to cooperation, and even though no one plans it. At least let me talk for myself. I have neglected, for about two decades, the importance of communities and the role they play in people’s flourishing. And it’s not for lack of haven’t read… I’ve read David Beito, I don’t know how you pronounce his name, book on all these welfare institution that existed outside of the government. I mean, I should know better. I mean, I find stories like this incredibly inspiring. But I think in my own thinking, I haven’t focused enough on the importance of communities.

Samuel Gregg:

So we’ve talked about the past, and we’ve talked a little bit about the present. I’d like to now shift our conversation towards the future, and what might lay ahead for classical liberals, and classical liberal’s ideas. So this isn’t the first time in history, right, that classical liberal ideas have been somewhat marginal. I mean, imagine living in the 1920s, or 1930s as a classical liberal. I suspect it was a very, very lonely time. So what do you think might be the opportunities for classical liberals to advance some of their ideas in the current conditions? Are classical liberals, in a sense, are they basically condemned to wait for a crisis to come along and then seize the opportunity? Or are classical liberals looking for a more piecemeal approach? In other words, skirmishes, winning skirmishes here and there rather than waiting for a massive catastrophe to happen, to which they will then step in with solutions?

Veronique De Rugy:

So I don’t think that catastrophes are the way to go for us, because when people are scared, when people feel poor, they turn to the government. I’m not super optimistic that our moment is going to come about because of a crisis.

Samuel Gregg:

But that’s what happened in the financial crisis, right? Remember, everyone turned to the state, across the world.

Veronique De Rugy:

Yeah. No, I mean, it’s what’s happened during COVID. This happens a fair amount, and the government grows during emergencies. And the attempt to stay grow is, I mean, at least in the last 20 years I’d say, that’s definitely the case. I do think that our only way of doing this, first we need to regroup. I think we need to talk to one another more. The battle of ideas ultimately is going to be the solution to our problem. Besides, I don’t know what else we can do. And I think we’re going to have to take stock of what has worked and what hasn’t worked. And I was actually thinking about this, and I’m writing something about this right now, is I think we’ve overlooked the importance of economic growth in our lives. And I think we haven’t explained to people enough how ultimately it’s not just… Focusing on economic growth, it’s not just a sound economic case. But it’s actually an incredible case that with economic growth, you don’t just lift everyone out of poverty, especially poor people. But also, you actually promote a lot of the values that we want in society, like a liberal order, tolerance, peace, all of these things. And I feel like we have definitely grown much less, at a much slower pace in the last 20 years. And I don’t think we’ve been alarmed enough about that fact, because that is working absolutely against us. But I think ultimately, we need to make the case… We need to be very careful not to oversell a lot of our solutions. So I mean, I’ve mentioned NAFTA. We did probably oversell the benefit of NAFTA. I mean, I’m still a big supporter of NAFTA. I mean, there’s no question in my mind that it was extremely important and beneficial. I worry that there’s a trend in our movement to oversell the benefits of technology, and supply side reforms. They’re very important, right? I mean, I think they’re extremely important to produce growth. I think we all have to recalibrate and find a way to talk to people about what they really care about.

Samuel Gregg:

Right. Because when we talk about economic growth, we often talk about GDP, we talk about living standards, and things like this. All of which is good. But that’s also a quite materialistic way of approaching it.

Veronique De Rugy:

Yeah, but I mean, I think we need to focus on the moral aspect, the non-economic aspect. You get more safety, you get more clean environment, you get more tolerance, more peace, there are liberal values that do not. These liberal values just do not happen in stagnant economies. They don’t. They don’t. In fact, a stagnant economy, they breed resentment, they breed trying to look for a scapegoat, they breed the, a lot of what we’re seeing right now about the fear of others, blaming others. So I think we need to make a much better case to actually talk about all these things we care about, and put them in the context of things that actually really matter to people. And I think we need to do a better job. For whatever reason, it baffles me over… I mean, it constantly baffles me. Government fails all the time, a lot, at a scale that’s enormous. I mean, I don’t know if you read the story about the high speed rail in California.

Samuel Gregg:

Yes.

Veronique De Rugy:

Typical case of industrial policy, government intervention, hubris. Even the French bureaucrats, the engineers were like, “We’re leaving. We’re going to Africa to build a bullet train, because this is too politically dysfunctional.” This happens all the time. And yet, people fail to hold the government responsible, or actually to remember that maybe it should make us more skeptical about using the government for everything. And this is what baffles me the most about the New Right to use this…

Samuel Gregg:

The sheer degree of government failure we can point to. And yet, many people who describe themselves as New Right, or national conservatives, or whatever this new grouping is called, they don’t seem willing to acknowledge-

Veronique De Rugy:

But it’s…

Samuel Gregg:

That the government fails again and again.

Veronique De Rugy:

A lot of these people were our friends, fighting with us against government intervention, precisely because they understood government fails. So that’s interesting to me. But to their credit, I think they are doing what maybe we failed to do. And that is to actually point out that there are truly things that are not working. I mean, when you look at areas in the US where there’s high unemployment rate, low wage, and people are stuck there. And unlike what we’ve seen in the past, and these type of contexts, people would go, or they would train and get another job, they would leave, they would go somewhere else to find… People aren’t doing this anymore. I mean, there are groups. And we tend to actually talk in aggregate. Well, I’ll admit, everyone is better, I’ll admit, everyone is better. And it is true, I’ll admit, everyone is better, right? Even those people in the [bottom] they all have TVs, and iPhones, and all that stuff. But once you’ve said that, you’ve accomplished nothing, because those goods, and that level of wealth is your new baseline. So we are not talking about these specific problems, we’ve ignored them.

Samuel Gregg:

So you mean we need to move from the aggregate to the regional and local in a sense?

Veronique De Rugy: Yeah. And true, for instance, I look at these areas, and it’s heartbreaking. But I can’t name you 10 things that the government has actually done to get people stuck there, right? But I mean, if I don’t ever talk about these areas, right, then I’ve allowed basically the narrative of the market has failed these people to basically, to take over.

Samuel Gregg: Well, we’re getting close to the end of our conversation. And I’d like to conclude by asking you a somewhat different question. So, classical liberals, they have their pantheon of intellectual heroes. So in more recent times, they would be people like F. A. Hayek, Milton Friedman, James Buchanan, for example. But there are also others who go back a few centuries, and were, of course, primarily English, Scottish, and Western European. So my question for you, which we’re going to conclude is, who is, for you, the classical liberal thinker from the past that classical liberals need to be looking to today for inspiration? Now, I have some ideas. But I’d be interested in hearing, who do you think would be someone who can inspire classical liberals in the somewhat gloomy environment of today?

Veronique De Rugy:

Frédéric Bastiat.

Samuel Gregg:

Bastiat?

Veronique De Rugy:

I mean, there are many. By the way, you know why we’re so attached to people of the past, to scholars of the past, to intellectual of the past? And this is one of our challenges, because there are no new ideas. I’m always annoyed when people say, “Well, can you come up with new ideas?” Well, actually, there are not a lot of new ideas out there. Maybe there are different ways to do things. Right at the margin you can do things differently, you can have a different messenger, have a different message, use a different medium. But when it comes to the arguments for freedom, the argument for classical liberalism, honestly, all the cases have already been made. The one person who I think actually does a remarkable job with a lot of humor is Bastiat. Don’t get me wrong, I love Adam Smith, and I like… But some people can find it unbelievable boring, right? I think Bastiat has it all. And this is not any chauvinistic instinct that actually gets me to say this, because I will say, the first time I read Bastiat, I read it in English, because the French totally ignore Bastiat. But I think that we can take a page of the way he was fighting these battles, and he was… I mean, he was funny, he had always concrete examples, he was challenging people, the way they think, as well at the same time, making some incredibly profound arguments about the law. By the way, I mean, Bastiat, before Hayek, right, talked about the difference between legislation and the law, how these are two separate things. So I guess I want to put a plug for Bastiat.

Samuel Gregg:

Bastiat is, of course, as you know, buried in San Luigi dei Francesi in Rome. You can actually go, and stand there, and look at his grave. And the fact that he’s buried there, I think, is indicative of someone who thought very widely, obviously, about economics, and the movement for liberty, but also some of the deeper traditions, which he clearly believed.

Veronique De Rugy:

Yeah, and if I can add something, one of the things that we’re missing very often when we talk about these intellectuals of the past who are very inspirational, who have actually put out in books truth that are just… That we’re still using to this day, is we admit that I think the baseline for all of them was a standard for morality that may be actually different than the one we have today.

Samuel Gregg:

Right. They sort of believed in moral absolutes.

Veronique De Rugy:

So we pick and choose what we want, but we ignore that overall environment where the arguments were taking place. They were things that were taken for granted that we don’t take for granted anymore. And I think we tend to pick and choose. So I think this is a warning about using writers of the past selectively without acknowledging some of the most profound facts about them.

Samuel Gregg:

Dr. Veronique De Rugy, thank you very much for joining us.

Veronique De Rugy:

Thank you for having me.

Samuel Gregg:

You’ve been listening to Liberty Law Talk, in which we’ve been discussing what happened to classical liberalism with one of America’s leading classical liberal economists, Veronique De Rugy. This podcast is available here, at the Law and Liberty website, and all good podcast sites, like Apple Podcast, Spotify, and Podchaser. If you like what you’re hearing, please give us a five star rating to encourage more people to join us each month. I’m Samuel Gregg for Law Liberty Talk. See you next time.

Brian A. Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

Confucian Natural Law? Nov 13, 2022

James Dominic Rooney joins host James Patterson to discuss his recent Law & Liberty exchange on Confucianism, as well as political catholicism in the West.

Brian A. Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening.

James Patterson:

Hello, and welcome to Liberty Law Talk. My name is James Patterson. I am chair and associate professor of politics at Ave Maria University, a research fellow at the Center for Religion, Culture, and Democracy, faculty partner with the Jack Miller Center, and president of the Ciceronian Society. Today with me is Father James Dominic Rooney. He’s a member of the Order of Preachers, also known as the Dominicans. He’s an assistant professor of philosophy at Hong Kong Baptist University. He works primarily in metaphysics, medieval philosophy, Chinese philosophy, and the philosophy of religion. He has a recent book called Material Objects in Confucian and Aristotelian Metaphysics on Bloomsbury Press. But today we’re going to be talking more about a political discussion that occurred somewhat on Law & Liberty, also elsewhere. In fact, part of the reason why we’re doing this podcast is because I heard one of his interlocutors, Habi Zhang, on The Pacific Century earlier this month. I sent the podcast to him and then remembered that he’s actually already had this debate. Father Rooney, welcome to Liberty Law Talk.

Fr. James Dominic Rooney:

Nice to be here. Thank you for having me.

James Patterson:

The position that Ms. Zhang has taken is that Confucianism as a political doctrine or political philosophy is simply incompatible with any idea of freedom, at least as it’s understood in the West. In fact, she says that freedom has no real meaning in China until it encounters the West. What is it exactly about the view she took that you took issue with, and what’s the position that you take instead?

Fr. James Dominic Rooney:

Well, I should say I think Ms. Zhang’s position is a bit odd even within the world of Chinese philosophy scholarship. I would say it’s actually a very active debate, because there have been a number of people, basically, since the revolution, who have been arguing back and forth about the role Confucianism ought to play, does play, might play in a future political philosophy that is more liberal. There was actually a very good book by a Chinese philosopher from Rutgers, Tao Jiang. He argues in favor of Daoism being a philosophy of personal freedom. I actually think that’s a good initial response, that there’s nothing about Chinese philosophy in general that lacks a concept of freedom. I think that kind of Daoist view from Zhuangzi that he was talking about is one option, of course, if you just want to talk about freedom in Chinese philosophy as a whole. Now my area is Confucianism, which is I think what Ms. Zhang was attacking in particular. And there are quite a number of Confucian liberals, actually. It’s really not that unusual to hold a position that Confucianism might give us a grounding for something like a kind of liberal view of society. It’s not going to be the same thing as contemporary liberalism but for example, the sort of people that come to my mind are Joseph Chan and Sungmoon Kim, who teaches here at City U, right out my window. I’m pointing. He teaches here. But I mean, both of them here in Hong Kong are well known for defending positions about using Confucian philosophy to defend liberal positions about freedom. My position is a little different, because they’re more contemporary political philosophy. They’re more interested in other questions. Mine came from the position that I’m sort of working on projects right now that might come to fruition in natural law politics. I’m from the natural law tradition. I’m a Thomist and we have a long tradition from Cicero and Aristotle to Aquinas down through the Dominicans of the modern school like Cajetan, and de Soto, and Victoria. And the position we hold is very similar to the Confucians. That’s why I went into Confucian philosophy and my point against Habi Zhang was just to point out a lot of the Confucian republicans at the time of the revolution actually recognized the parallels with natural law thinking, with natural law, political thinking. And they pointed out that the motivations for Confucian political doctrine are pretty similar to those that motivated people like Yves Simon and Jacques Maritain to defend natural law sort of theories of democracy, and constitutional separation of powers, and all those sorts of things that we think of as liberal doctrines. And so I just defended that well, I mean if Confucianism can hold all the things natural law does and they’re relatively close, well, there’s nothing about Confucianism as such that requires it to be kind of authoritarian. And I think her arguments about that why what in Confucianism leads it to be authoritarian had a lot to do with the idea that government is aiming to work for good lives of its citizens, that that’s the purpose of government. She called it benevolent government. And I think one of my other interlocutors also pointed out this claim and said, “Well, it’s really about benevolent government,” but there’s nothing about benevolence in government that just is to say, right, perfectionism is what we call it in contemporary political philosophy, perfectionist political philosophy. There are perfectionist liberals around like Steven Wall, Joseph Raz. It’s not all that unusual for there to be perfectionist liberals. I think even from a natural law perspective, Confucianism shares a lot of the same presuppositions as natural law theory, and you can get to defense of these same liberal institutions through natural law theory. There’s nothing that stops you in Confucianism from getting there either.

James Patterson:

One of the choices she makes that I thought made the article both compelling but also perhaps subject to a certain amount of criticism is that of all the people she selects to offer a western account of human freedom is she chooses Hannah Arendt. And it sounds to me that Hannah Arendt wouldn’t really comprehend that. Not that she wouldn’t understand, but that her body of thought does not really overlap much with the natural law tradition. Is that the issue at work here or do you think it’s something else?

Fr. James Dominic Rooney:

Yeah, I mean, if I can put it bluntly, this is a very common strategy among people today to argue against kind of liberal institutions is they tend to say something like this. I was just looking at Habi Zhang’s article, and part of the point here by quoting Hannah Arendt is to make a claim that western philosophy, western theories of liberalism require some account of an autonomous self, that free people are disconnected from families and nation and it’s like, I don’t know, Sartrean or something, that we have no commitments to anybody else or to nature. Political authority is just oppressive. It can’t be natural. When you start off on this account of liberalism or what is required for freedom, I mean, of course natural law, Confucianism can’t accept that kind of individualistic atomistic self. That’s just obvious. But it’s certainly not the case that that’s required for things like democracy or separation of powers or popular sovereignty. I mean, Robert Bellarmine gives one of the famous arguments for popular sovereignty that the Catholic church accepted and he certainly doesn’t believe in atomic individuals and this kind of picture. It’s a very common strategy, anti-liberals use or aliberal people will use. And it’s rhetorically effective to some extent, but it’s just not true that in order to have and support liberal institutions, you have to accept this kind of completely individualistic picture of the self. Or another strategy is you have to accept Locke’s picture of liberalism. But of course there’s no reason to accept, I mean, there’s no reason if you think separation of powers, popular sovereignty is true, any of those commitments, there’s no reason you have to accept Locke’s account or Hobbes’ account even more. To me, it’s just a kind of non-sequitur that if you accept these institutions, you have to accept Locke or Hobbes or Hannah Arendt’s account of freedom. I don’t think you do.

James Patterson:

This is primarily for my benefit as well as maybe some of the listeners. There is something you allude to, you mentioned it but you don’t quite explain it, it’s this distinction about the legalists intervening in historical Confucianism. And as I was reading it, I made an association where there’s this emphasis on virtue and moral improvement in Confucius that the legalists just attempted discredit in favor of arguing in favor of some nearly totalitarian regime intended to keep the people in line. And when I was reading this, it felt very much like I was reading about the transition from medieval to modern political philosophy. Is this a fair analogy or are there some things that are missing in the account, the Chinese? I’m assuming there are, I was just wondering what they were.

Fr. James Dominic Rooney:

Yeah, no, certainly. Let me just to answer your question immediately, I think actually that’s a very good way to think about it. Although the Chinese version legalism or fajia is the school of law is what it sort of means literally. It’s one of the classical schools of Chinese philosophy and they’ve sometimes been called realists or different other kinds of terms, but actually, I think it’s got a very similar vibe to somebody like Hobbes. The basic viewpoint of these kind of people we can go to one of the more important people would be Han Fei Tzu. And these kind of theorists have a kind of, you’re right, a kind of totalitarian theory of the state. They are influenced by another earlier school called Mohism from Mozi and it’s a kind of consequentialist ethics. They accept a certain theory of the state that became influential in China because it influenced a number of leaders to crack down on philosophical pluralism because they thought philosophical pluralism undermined the state. It led to a famous burning of books and elimination of alternate thought because this was the ideal was in order to have a state that really is effective, you have to eliminate alternative perspectives, you have to shut down, right, philosophers that might have alternate theories of justice. Because that’s one of the things from the early Mohist Confucian school or the early Mohist school consequentialism, is that part of the problem in the state is different theories of justice because it causes disharmony in the state. The Legalists were famous for many of their sort, let’s say, taking consequentialism and practice and operationalizing it. They did all the things consequentialists get accused of today. They want vicarious punishments and very harsh punishments to dissuade people from doing bad stuff in the state. They were famous for these sort of implementing very harsh punishments, cutting out dissent, eliminating philosophical pluralism. And I think it’s pretty clear to me that those schools are actually closer to what Habi Zhang is talking about. In the history of Chinese philosophy legalism sort of took over during this warring states period. we’re talking around, I mean Han Fei Tzu is 240 BC around, and these schools are got prominent in China and influenced the way Confucianism was practiced in China and the sort of relation it had with the state because it became a sort of way of, it gave rulers a certain kind of perspective that the philosopher should serve the state, right? And they shouldn’t be allowed to be independent. And Confucianism ended up adopting some of the views. I mean we might call the state Confucianism of the time, adopted some of these views so that it wouldn’t get totally snuffed out. It tried to come up with of accounts the Confucians could support the state in a similar vein, although the Confucians always rejected the sort of legalist idea of vicarious punishment and these overly harsh punishments. The Confucians were always trying to moderate the punishments. And there were others. The basic sort of view of later Confucianism even was Confucianism was famous for something that the legalists would not, I think, accept which was the role of scholars in the government to remonstrate with the emperor. That was a very Confucian institution that shows you a little difference with legalism. The legalists thought the philosophers need to serve the state and need to be suppressed. The Confucians, even when they were serving the state, have the idea, if we might put it this way, that the Confucian institutions, the scholars were really independent and were supposed to act as a moderating influence on the emperor. They were supposed to educate him and then if the emperor did something wrong, they were supposed to write memorandum to the emperor to correct him. And this generates a sort of theory that looks pretty, it’s not separation of powers, but it represents… It was supposed to be a check on the autocracy of the emperor because the Confucian theory was always that the moral law, justice, stands higher than the state that is definitely 100% central to the Confucian doctrines. If you look at the first chapter of The Mencius it’s anti-consequentialist. It’s one of the kings of the time talking to Mencius about how Mencius can profit the state, which is let’s say a very, this is before legalism proper, but would be a very legalist kind of way of thinking. And Mencius says, “Why did you ask about profit? You should have asked about righteousness and then you would’ve asked the right question.” And that kind of perspective has always been the Confucian perspective. Justice stands higher than the state. There’s a higher moral standard that the state cannot violate. If the state violates it, the state becomes unjust and illegitimate to the extent to which it violates the standards of justice. The Confucians, I think definitely did not share that kind of legalist perspective, but you can see that this kind of legalist perspective very much influenced some of the practices of China. I think Habi Zhang is sort of associating some of that, this sort of legalist consequentialist understanding of the state more with Confucianism than it ought to be.

James Patterson:

You actually referred to another interlocutor and it was, I believe David Schneider, he makes a great deal of use out of the understanding of heaven or the idea of pietas versus, what is this? You say xiao? And how these are, that these are not sufficiently parallel ideas, but heaven and Confucian sense and versus a Christian sense or pietas and xiao and that this is a confusion that you’ve encountered. Is this a accurate assessment of your position or does he perhaps miss something here?

Fr. James Dominic Rooney:

If I can try to summarize the position as I understand Dr. Schneider, his position is, as you say, how is a virtue that is akin to, it’s translated in English as filial piety. Xiao Is the virtue basically of sons to fathers. And I mean sort literally that’s what it is, sons to fathers. And then it gets applied by a sort of analogy to any hierarchically subordinate person to the superior. Xiao is a virtue also of servant to minister is a kind of xiao. I think pietas is a good translation in a good analogy in the western tradition because piety is about the same sort of thing, gratitude to God, gratitude to your parents, gratitude to your government and your nation. I mean you find that in Cicero you find it in Aquinas. But the difference that David Schneider tried to claim is that in xiao, in the Confucian tradition, we might say, “No inferior person has a right to oppose the person in a superior position.” That’s sort of David Schneider’s claim. Now in fact, I think that’s false. I mean, I think even in the Confucian tradition. Because in fact you can find in the, I already mentioned the institution of remonstration with the emperor, which is certainly the Confucians thought that was possible. But in particular too, it’s also just I think not quite true to say that xiao requires the inferior person always to do whatever the superior person tells them to do. The obvious case is in the Confucian canon there are clear cases where in the analect and in I believe The Mencius as well, you find clear statements that sons are not to follow the commands of their parents if their parents command them to do what is evil. I think that’s a pretty clear statement, that there’s something wrong with the view that no inferior person ever has a right to disobey his superior, because that’s precisely when you can disobey is when it’s against the moral law. We could go into more detail, but my basic claim was I think David Schneider’s view just takes inspiration from, again, the same sorts of things. There is among Thomists, I’m going to go in a little bit now to the West. There’s among Thomists exactly the same sort of argument that in classical Thomism, right, charity and justice are about normative relationships, natural, natural kinds of roles and duties we have to each other. For example, Alasdair MacIntyre makes the same argument that there’s no such thing as human rights in Thomism, there’s no such subjective natural rights that individuals have under Thomism and the natural law tradition. But I think that’s just false and there are lots of people that argue that that’s the case because it turns out right objective, right is right relationships between people. That’s in the Thomist’s natural law tradition. It’s the same among the Confucians, like righteousness or xiao is about right relations between people and there are wrong relations between people. And sometimes that can mean, right, it’s indistinguishable from a kind of subjective natural right. For example, if the son doesn’t have to obey when the father commands something that’s immoral, it looks to me like that’s just indistinguishable from saying there’s a kind of subjective natural not to obey when it’s a certain kind of command. You have a right not to obey under certain circumstances. I think there are other things, for example, the Confucians clearly believe there are certain actions that no person, not even the government can command you to do that we might say intrinsically immoral. There are absolute moral prohibitions on Confucianism just as there are in the natural law tradition. If there are absolute moral prohibitions, then you get something like human rights right out of it. Because if the government can’t ever torture you, then torture is wrong and you have a human right not to be tortured just in virtue of being human you have a subjective not to be tortured. You can get that out of, I think that’s one of the things you could get out of absolute moral prohibitions. If the government can’t do something or no human being can do it to you, then I think you can derive these kind of claims diirectly. I think the harder question that David Schneider brought up has to do with separation of powers. What I argued is this, in the classical tradition in China, there’s not been much consciousness of the need for separation of powers. There’s not been much consciousness of the need for it or how to do it. There are some people, there are some sort of hints in the tradition where people thought about it. There are some more modern Confucians that sort of came up with claims about this. I’m forgetting this one Confucian’s name, but I was just reading, I’m forgetting. It’s called the Brightness of the Dawn or something. He was like 17 18th century Confucian. But he argued for reforms that would bring about a kind of limitation, constitutional check on the authority of the king, of the emperor on the authority of princes. And I just don’t think there’s anything in Confucianism that requires you to deny it, that requires you to deny the legitimacy of something like separation of powers or the possibility of holding individuals in the government, including the emperor to some standard. I just think there’s, even though it might have been the case that Confucians in fact criticize this or didn’t come to a claim about separation of powers, I mean, it took people in the West a long time to do that too. It just takes time. There have to be certain kinds of circumstances. The question is whether Confucianism is incompatible with it, and I just don’t think it’s a persuasive argument that Confucian ethics or politics requires us to deny something like the goodness of separation of powers. And I think you can give arguments for it just as you can in the natural law tradition.

James Patterson:

Well, we should move on. People who are listening to this may know about our encounters with a revived concept about the relationship between church and state, and that is what’s called integralism, I sometimes call it neointegralism, but we’ve both had work that we’ve done on this. I know that one of the things that you’re doing to take on maybe the broader issue that integralism’s brought up is that you have a book coming out called Beyond Classical Liberalism. But before we talk about that book, maybe talk about some of the things that you’ve done concerning integralism and where you stand on it.

Fr. James Dominic Rooney:

Yeah, so the Jihad lives. I am very dedicated to the claim. I think there’s something very deeply wrong with integralism. I should say, I mentioned to you before the show began, there are lots of noxious political views in the air. The ones that concern me as a Catholic priest and theologian and philosopher are those that claim that Catholic doctrine requires them to be true. I have some papers I’m working on at the moment about problems, injustice, individualism that concede certain claims that I think they make that are clearly false. Integralists tend to claim that there are certain commitments from Catholic theology that require you to be an integralist. For example, our doctrine of grace, or Thomas Pink is the famous philosopher who argues there’s a certain kind of privilege that the church has in relation to the state that the church is in, has an intrinsic right from God to civil penalties of the state. That’s part of the church’s power, it’s indirect power over the state. He gets this idea from Francisco Suarez, who he’s a very famous Thomas Pink is a very good and famous scholar of Francisco Suarez. he gets the idea from him. But in fact, in Catholic theology, that position on the indirect powers is terribly controversial. There are quite a lot of people that have rejected that claim. The most notable I think is John Henry Newman and Joseph Raz clearly reject. I think there are actually lots of people in the tradition that reject this claim. I think the Dominican tradition rejected some of these claims. But leaving that aside, I think that the deep problem with integralism is even if you concede this controversial claim about the church’s power, let’s just pretend it’s true. I don’t think it follows integralism. If I put it this way, my account of integralism, I got this formulation a little bit from Kevin Vallier, so I’ll give him credit for it. But I think the idea is it’s a theory about the ideal political arrangement. The ideal political arrangement. And the claim is something like this: the state has the obligation or the mission of advancing the temporal common good, the church has the mission of advancing the supernatural common good. And the integralist thesis is this, that there is the ideal political arrangement is one on which the church can mandate the state to directly advance the supernatural common good. That’s basically the thesis, and you need to unpack it a little bit, what I mean by directly. I think the idea is right, if the state advances good things, like they prohibit murder, right? That’s a natural good, right? Prohibiting murder. That advances the supernatural common good indirectly, right? Cause you can’t be a saint if you murder people, right?

James Patterson:

That is uncontroversial.

Fr. James Dominic Rooney:

Yeah, I know it’s a controversial thesis, but directly advance, directly advancing the supernatural common good means that the state can use its power under mandate or delegation by the church or something like that in order to, for example, punish heresy, right? Cause heresy is a supernaturally, it undermines the supernatural common good of the church. The idea is from Thomas Pink, for example, that the church does teach, you’re not allowed to coerce people who are not Catholic. You’re not allowed to directly coerce the unbaptized to become baptized, we think. But perhaps we could use the state or we have an ideal arrangement on which the state could be holding Catholics to their baptismal promises through coercion, right? If you are baptized as a kid as a Catholic, we can punish you, put you in prison for heresy or something. If you’re not Catholic, we can protect the Catholics from you, right? We can stop you from building synagogues, right? Cause that’s bad for Catholics, I guess. I don’t think so. I think that’s a little weird. But anyway, that’s the idea.

James Patterson:

That’s one word for it.

Fr. James Dominic Rooney:

We’re going to keep the bad Protestants away from the Catholics and all the atheists. We’re going to put them under dhimmitude or something. My objection to this theory is pretty simple, which is the thesis is it’s the ideal political arrangement. I think there’s no such ideal, I don’t think it makes any sense what the grounding is for this ideal, why it’s ideal. And I think if you try to work out what those grounding is, it leads you to accept something intrinsically unjust, whatever explanation they give. There are lots of different explanations, but the basic claim is going to have to be something like this. You can do it of one of two ways, but the idea is going to be, I should say the first thing integralists are always going to retreat to is they’ll say, “Well, once we have a legitimate constitution for a Catholic confessional integralist state, well nobody, there might be non-Catholics living in the state, but as long as the constitution is just, right, why do the Jews worry about us using state power to advance the supernatural common good of the Catholics? If the constitution is justified?” Well, my problem is of course the justification of the constitution because that’s where the ideal political arrangement comes in, is to say that the constitution for this kind of integralist estate is ideal.

I admit that it could be legitimate for the state to advance the supernatural common good under some circumstances. Maybe there are circumstances under which the state could legitimately do that. If we have a majority Catholic population, maybe if there are certain ways in which I think, here’s a good example. I buy Kevin Vallier’s convergence theory of public justification. There can be things that we can agree with Jews about, that we can publicly justify the state doing things that I think advance the supernatural common good. Here’s something we might want to do.

We can pass a federal law to preserve Sunday as a public holiday of rest. This advances the supernatural common good, I think, right? And it’s something state power does, and there might be other things that the state can justify that I don’t think have anything to do with integralism that I think maybe the state can advance those things. And I don’t think there’s any reason we can’t do that. But when you try to justify this ideal constitutional arrangement, I think you end up having to say things like this. You have to say something like, “Well, what non-Catholics think about the constitution of our government doesn’t count.” The integralist has to say either one of two things, either that non-Catholic objections to a constitution in which we exercise this kind of church power over the state, either non-Catholics are just not publicly reasonable. a lot of integralists, I know, just think the objections of non-Catholics to government power being exercised by the church are just, we might say publicly unreasonable in contemporary political philosophy. We just disregard them. They’re not important. We could pass the constitution anyway. We had a constitutional convention to pick what our constitution is for our country. We could just leave the non-Catholics right out. They’re not admitted.

The problem with this is pretty clear, I think why it’s unjust, because it seems to me that it would just say, for example, we could set up integralist states in other countries like colonies, right? Because the natives don’t matter if they’re non-Catholic, their objections don’t matter. It seems to me to entail pretty obvious injustice. A lot of integralists I think just accept that conclusion. But I point out my Dominican confreres, Bartholome de las Casas and Victoria, have some very strong words against the claim that right non-Catholics have true dominion or that the integralist state could somehow override the natural rights that they have of dominion. I think that’s a problem.

James Patterson:

Does this tie in to the project where if classical liberalism needs us to go beyond it, part of that might be because we have a sense that there’s something inadequate about its present argumentation that perhaps integralism a symptom of it’s sort of resurfacing? Is that part of the cause for you to write this book?

Fr. James Dominic Rooney:

I’ll just say there are other ways people could ground integralism. I think they’re not going to work. I think they’re basically going to be circular. They could say, I think there’s a tension in integralism, but I’ll just put this, sometimes they say, and they generally do say you need a majority of Catholics for an integral state to be justified, but in fact, and in principle, they end up treating non-Catholics as if they have no duties toward them in this constitutional convention kind of moment. In terms of the constitution’s legitimacy, they own nothing to non-Catholics. Well, that’s a pretty clear tension. Is the 50% or more of Catholics, how does that require true legitimacy? This is what one of my articles is about, is there’s a tension here that’s really serious, and I don’t think the integralists seem to care, but in fact, I think it’s just very clearly is going to either lead you to say, “Well, either the integralist state is not the political ideal or injustice. There are no rights for non-Catholics of the right sort.” They tend to think non-Catholics should just be excluded from citizenship. I think that’s the center point for the injustice of integralism. Now to the point on the Beyond Classical Liberalism. I certainly think this view is a symptom of a certain kind of problem. I’ll just say what the problem is right out. I gave a talk this summer where it was the failures of liberalism. I think here’s what happened.

Liberalism is very much a sort of strategy for toleration and it tries to go to minimal principles like John Rawls’ kind of position. We’re trying to find terms of cooperation that everybody can agree to. He was inspired by Kant, I think Kant had, there are some things of course that Kant said that were right, but a lot of Rawls and Kant, what they get has now become very controversial, I think, because they, they want to give a certain definition of reasonability. Then I think once they reject metaphysics, once they reject the sort of rich moral basis for these things, it becomes impossible to see why their account of justice is anything but question-begging. They’re accepting. That’s things that from the Christian tradition, from the natural law tradition is what they’re doing. Those are the parts I agree with, but they don’t give it a correct foundation and they sort of empty it of everything. It becomes a very formal account without the right kind of grounding in my opinion. I think this is what has happened is liberalism had some bits from the Christian natural law tradition that were right, and they tried to put them on a weird foundation that isn’t able to support them.

And now what we have is this rise of authoritarianism is basically lots of people haven’t been given moral reasons, strong moral reasons to support things like liberal institutions and respecting the rights of non-Catholics or other people. And it’s a sort of breakdown we’re looking for. There’s lots of ways in which the liberalism might be breaking down, but I think liberalism is really a justification. It’s not really the institutions. The institutions have their own problems, but the problem for the problem that I see from liberalism is really our ability to mount a moral defense of the institutions. And I think that is what you find today is people are grasping at straws and they’re buying into really bad authoritarian theories and undermining what I think are real moral imperatives. I mean, I think the sort of culture we have, free speech, respect of other people, respect for Jewish citizens and other non-Catholics in America. I mean, I think our respect for people on the other side of the political aisle is a moral duty. I mean, I think that’s why we should care about liberal institutions is because these things instantiate moral duties we have to our fellow citizens. And when we violate them, we’re violating moral duties. When liberalism says we’re being intolerant or whatever the hell else, I mean, that’s weak sauce. And then we just use liberal language as a kind of moral virtue signaling to sort of exclude people we don’t like. And there’s no criteria for saying who’s really intolerant or tolerant, and that’s why it gets bandied about so much these kind of liberal terms, like tolerance or.

Anyway, that’s sort where I come from is I think what we really need is kind of the deep, rich moral tradition to defend precisely these kinds of liberal institutions against the onslaught of really bad stuff that could be around the corner and is happening in some countries. Like I was in Myanmar, some of the brothers, or mean, some of the brothers from this province that I’m living with or in Myanmar. And that’s bad news. That’s bad news. And what kind of moral criticism can we make? The UN, I think is totally toothless in regard to this. And this kind of contemporary shallow human rights language is totally useless in criticizing the government and the abuses of government in places like Myanmar. That’s what I’m concerned about. I think liberalism has deprived us of the ability to think clearly about what’s wrong with places like the junta in Myanmar taking over and killing lots of people. I think if I can put it this way, a lot of these integralists like places like Hungary, because they see these, I think they’re suckered in by certain kinds of things that they think are beautiful. Support for families. Now. In fact, my family’s from Hungary.

James Patterson:

Oh, I had no idea.

Fr. James Dominic Rooney:

I live in China right now and in Hungary I know what the policies are like, and I know I think they’re in fact intensely romanticizing what is actually occurring in these countries. In fact, I think there are lots of problems. I mean, for example, they have horrible problems with supportive family life. I mean, there are incredibly low birth rates. Now these countries recognize there’s a problem. And I think there’s a sort of romanticism here that I think Beyond Classical Liberalism, my book is going to try to address by bringing together a lot of different people to present alternatives. Let’s look beyond classical liberal thinking to what kind of views could we give from a classical perspective, from different classical perspectives? Can we work together with other people who are, for example, I’m having Jews and Protestants, I’m having feminist, perfectionist political philosophers, civic republican, people that like civic republicanism. How can all these classical traditions kind of come together and can we advance and see ways to restructure our liberal institutions, to defend those liberal institutions on a moral basis and restructure them so that we can think better? How can we use them to advance family life to advance the kinds of policies we care about without going into the weirdness, without going into the strangeness and the authoritarianism of the integralist theory? I mean, the problem with integralism is not that they like families, nobody, I mean, very few people are going to think that’s a problem everyone’s going to think keeping Jews from being citizens is a weird problem, a weird hangup. But I think the question is, and I think it’s a real question, is if you think the point of government is to make people’s lives good, who gets to say what the good life is? How is that position compatible with the view that we’re self-determining? That we’re living in democratic liberal societies where not everybody thinks the same thing? Well, actually I think they are compatible. I think they’re very compatible. And I think in fact that’s the best way forward to advancing the things we care about. Because of course there are lots of people, the integralist and the authoritarian survives on painting other people as enemies that are totally unreasonable. You can never talk to the Jews, right, Just too different and they undermine the common good. Well, I mean, in fact, right. There are lots of things we agree with, even with atheist liberals, there are lots of things we can agree about to advance the common good. And a lot of the time it’s just that we haven’t formed the right kinds of alliances, right? I mean, I think this is sort of the problem today. Anyway, that’s where I am is I think a lot of these alliances with other groups, there are lots of bases, there are lots of topics on which we can agree, for example, to support families better within democratic society. We just need a good moral defense of it that is able to bring other people together, I think.

James Patterson:

Yeah, the problem with the friend-enemy distinction is that we are called to love our enemies. It doesn’t really seem to work that we would want to engage in such antagonism or to dominate. But I guess on that, we agree. Thank you so much for being generous with your time, Father Rooney. We have the name of the book Beyond Classical Liberalism, and what’s the name of the metaphysics book in case anyone wants to get really technical, I’ve lost it.

Fr. James Dominic Rooney:

Material Objects in Confucian and Aristotelian Metaphysics. I’m a metaphysician. I just play a political philosopher on television.

James Patterson:

You’re quick study, Father. Thank you so much for coming on. It’s especially important because last time I had a Jesuit, so I had to make sure to keep things balanced, fair and balanced, only on Liberty Law talk.

Fr. James Dominic Rooney:

Well thank you James for having me on.

Brian A. Smith:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

The Inalienable Right to Religious Liberty Nov 03, 2022

Vincent Phillip Muñoz joins host Samuel Gregg to discuss his new book, Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses.

Brian A. Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org and thank you for listening.

Samuel Gregg:

Welcome to Liberty Law Talk. My name is Sam Greg and I’m distinguished Fellow in political economy at the American Institute for Economic Research, and I’m also a contributing editor at Law and Liberty, part of the Liberty Fund Network. Thanks for joining us today. Religion and religious liberty seem to be major points of contention today across the United States. Whether the issue is school prayer, religious exemptions from healthcare mandates, or the degree to which legislators, even presidents allow their faith to shape politics and policies. It’s very hard to escape debates about the place of religion in the public square today. Overshadowing all this is the fact that a concern for religious liberty was at the forefront of the minds of many American founders. This was eventually given expression in the First Amendment, but what did the founders really think about religious liberty? Did they think of it as a natural right and therefore connected in some way to natural law, or was the securing of religious liberty essentially focused on securing social peace?

These and many other questions are discussed in a new book entitled Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses published by the University of Chicago Press. I’m very happy to be joined today on Liberty Law Talk by its author, Professor Vincent Phillip Muñoz. Professor Muñoz is the top field associate professor of political science and concurrent associate professor of law at the University of Notre Dame. He’s the founding director of Notre Dame Center for Citizenship and Constitutional Government. His scholarship has been cited multiple times in church-state Supreme Court opinions most recently by Justice Alito in Fulton V City of Philadelphia 2021, and by both Chief Justice Roberts and Justice Thomas in Espinoza V Montana 2020. He’s widely published having written several academic books as well as articles on topics like religious liberty, the idea of natural rights, as well as the American founding. He received his BA at Claremont McKenna College, his MA at Boston College and his PhD at Claremont Graduate School. Philip, welcome to Liberty Law talk.

Vincent Phillip Muñoz:

Thanks for having me.

Samuel Gregg:

Today in America, Philip, we often think that it’s hard to imagine a topic more controversial than religion and religious liberty. I suppose that’s because religious liberty touches on questions ranging from Constitutional interpretation to the more generic place of religion in American society. Now you’ve been writing about the nature of religious liberty, its connection to ideas about natural rights as well as its Constitutional and wider political implications for many years. So tell me this, why did you decide to write this book at this particular time?

Vincent Phillip Muñoz:

Yeah, that’s a good question. Thanks again for having me on. I’m a fan of the show and listen to it regularly, so it’s a pleasure and a treat for me to be on it. Why did I write the book? Well, I suppose I thought, every author thinks, that I saw something or see something that others don’t see, and I think that’s the natural rights foundations of religious liberty in American constitutionalism. In our jurisprudence and in the scholarship, people don’t talk about natural rights that much. And I think by ignoring natural rights, because we don’t really understand natural rights, we don’t really understand the founder’s thinking. And I think that leads to misinterpretations of the First Amendment.

Samuel Gregg:

Now, I noticed in the title of your book, or more precisely let’s say the subtitle, that used the word words, the original meanings of the First Amendment religion clauses. So not original meaning in the singular but rather original meanings in the plural. Now I take it that you are indicating here that to speak of original meaning in a singular sense is somewhat of a mistake. Am I right in supposing that or did you have something else in mind?

Vincent Phillip Muñoz:

Yeah, no, I think that’s exactly right. I think there are a different meaning for the establishment clause and the free exercise clause, but it’s even more complicated than that. One of the chapters in the book, I think it’s the four chapter is titled something like “How the Founders Agreed about Religious Liberty but Disagreed About the Separation of Church and State.” What I’m trying to show is that there was an agreement on the natural rights principles, but at the same time still disagreement about public policy questions about church and state. So the founders are more interesting and more diverse than I think scholars have realized.

Samuel Gregg:

Now, was this something that you came to a conclusion to before and then you wanted to find out if your summation was true or was this something that you came to conclude after reading through some of the texts that are obviously very important for this conversation?

Vincent Phillip Muñoz:

That’s a really good question. I think the light bulb went off when I read a correspondence. I can’t even remember. It was George Washington writing to someone and I just can’t remember whom right now. And he is talking about Patrick Henry’s proposed funding law, a bill for Christian education or education in Virginia. This is right after independence. There’s a debate between Patrick Henry on the one hand and James Madison and Thomas Jefferson on whether religious ministers will be funded in the new state of Virginia.

And George Washington in the letter, again, I just can’t remember, it’s in the book, I just can’t remember to whom it is addressed, says he was originally in support of Patrick Henry’s proposal. So here was George Washington on the one hand, supporting Patrick Henry, a patriot on public funding of religion, and James Madison and Thomas Jefferson on the other side. And I was trying to figure out what all the founders had in common, and they do have something in common. But then it was just obvious, well, they disagreed too. And of course they did. They do have natural rights principles, but what those principles mean in practice, just like we disagree about things, they disagreed about things.

Samuel Gregg:

Well, in light of what you just said, I’d like to quote something that you wrote on page 89 near the beginning of chapter four, which is entitled “The Founder’s Disagreement.” And you write the quote, “While the founders agreed that religious liberty is an inalienable natural right, they began to disagree when they moved beyond the core right to worship according to conscience.” End quote. The natural question to ask I suppose is why did they disagree once they move beyond this essential point?

Vincent Phillip Muñoz:

I don’t know if all listeners that this will resonate with them what I’m about to say, Thomas Aquinas says, “When you move away from the first precepts of the natural law to more secondary considerations, what the natural law dictates becomes a little less clear.” And I think it’s an analogous to that. The founders agreed, what I say is an inalienable right, their language was an unalienable natural right. And they agreed that means the government has no authority to tell you how to pray, prohibit you from praying, tell you where to worship, mandate worship. So there’s a core agreement. But when it comes to questions like funding, can government fund religious schools? The question in Virginia was, can government fund religious ministers? In the argument, Patrick Henry’s argument was because religious ministers provide education for the citizenry, there’s no public schools at the time. So it was about education according to Patrick Henry. When it comes to these secondary questions, there’s just disagreement about what the natural rights principles dictate. Doesn’t mean that there’s a right answer and wrong answer, just you have to wade through their differences and try to figure it out.

Samuel Gregg:

So you mentioned public education on funding for religious education. What are some of the other, let’s call them policy areas that the founders disagreed about once they moved beyond this core agreement about this right to worship according to conscience as you describe it?

Vincent Phillip Muñoz:

Sure. Another example is can you use religious tests for office? We think of this as a core element of the natural right of religious liberty. It’s actually not so core. In the argument for the pro religious tests for office is something like this, and the context here is let me just use Massachusetts, to be a governor in the state of Massachusetts under its first Constitution, you had to be a Protestant. And that was not uncommon. Other states had religious oaths for office that effectively eliminated Catholics or Jews or non-Protestants. It varied state by state. And the argument that the proponents of the religious tests used was, “Look, we need virtuous office. We need men,” it was all men at the time, “We need men of good character.” This is why we have age limitations. You must be 35 for president or 30 for Senate. And that’s an indication.

The age is a substitute for maturity. Well, they said, “Well, we can use religion as a substitute for virtue.” And it’s clearly a legitimate public purpose to have a limitations on office holding that will foster good character. Religion, some founders said, can be used in that way. And that’s how they justified religious limitations on office holding with the idea that religious liberty is a natural right. And they said, “Yeah, you can worship however you want, but we can use religion as a means to further public purposes such as virtue and office holding.” That’s one side. The other side was no religious affiliation should make no part of the government’s considerations, like a colorblind constitution, race should not be part of the government’s considerations. And so civil rights should not be conditioned on religious affiliation. That’s a second area of disagreement.

Samuel Gregg:

So obviously you’re pointing to considerable ambiguity about the public policy implication of the First Amendment, at least based upon reading what different founders said about these things and the way that they disagreed about these things. So if there is this ambiguity, what does this mean for originalist approaches to the First Amendment today? Because if there is this ambiguity then that suggests that in many cases it’s not immediately evident what the original meaning of the establishment clause and the free exercise clause is, at least as it pertains to public policy questions. So what does this mean for the originalist project of Constitutionalist interpretation, at least with regard to the First Amendment?

Vincent Phillip Muñoz:

Okay, let me just preface my answer by saying it takes me about a hundred pages to answer this question in the book. So I’m going to give you the short version. The first thing we should, just because one founder said something doesn’t mean that’s the founding position on church and state. And you see this in jurisprudence, a citation to Jefferson or Madison. And because Madison said this, usually this is misinterpreted, but that’s another problem because Madison said this, then therefore the First Amendment means that. And that’s just a lazy way to do jurisprudence. And look, both sides do this. Conservatives do it. Liberals do it. It’s just irresponsible, to speak candidly. Okay. The other thing it indicates, the founders disagreements, if you are aware of the disagreements when you go back and read the historical record, the historical record starts to make more sense. They disagreed about the proper relationship between church and state.

One of the ways we deal with disagreement at the time of the founding, less so now, but at the time of the founding was federalism. So part of my argument was the establishment clause and the odd language, respecting an establishment. Congress shall make no law respecting an establishment. One of the purposes, not the only purpose, but one of the original purposes was to say, “Hey, we disagree about these church-state matters. We will leave them with the states.” And that’s how knowledge of the disagreement starts to shed light on what they were actually doing when they drafted the First Amendment.

Samuel Gregg:

So given that’s the case, what role do you think that the idea of natural rights has in terms of constructing a coherent originalist interpretation of the First Amendment in light of the fact that the founders clearly did disagree about some very important questions regarding religious liberty that are still playing out today? So what does the natural rights approach to this suggest in terms of how one should construct an originalist approach to the First Amendment?

Vincent Phillip Muñoz:

Okay, so let me just start on the level of you’re a good faith legislator trying to understand what your constitutional power is or judge trying to interpret the First Amendment. What would this knowledge of natural rights, how would it help you? Well, first of all, I talked about the establishment clause already, let me talk a bit about the free exercise clause. The First Amendment says, “Congress shall not prohibit the free exercise of religion.” Well, what is the free exercise of religion? It’s not a term of ours. There’s not a clear meaning of the free exercise of religion. So you have to go beyond the text. You can’t just, “Well, the text is obvious.” Text is not obvious at all. Well, how did the founders conceive of the idea of the free exercise of religion? If you go back to what they wrote about religious free exercise, you see they called it an inalienable natural right.

Well, what’s an inalienable natural right? Again, this is a whole chapter in the book. An inalienable natural is a right over which we do not give authority to government. That’s why it’s inalienable. That term is actually very important. It refers to social compact theory. We don’t give a certain degree of authority to the government over our religious exercises according to the founders. I’m going to make a big jump here. The core of that right was the right to worship, the right to worship according to conscience. What that means in practice is government has a jurisdictional limitation. It has no authority to tell you how to worship, to make legislation saying, “You must worship in this way at this time in this church.” So the question was what does the natural rights, or what does the knowledge of the founder’s natural rights philosophy do for constitutional interpretation? It gives us a way to understand the terms they use, the free exercise of religion, how they would’ve conceived those terms.

Samuel Gregg:

So you say it in the book, you say you’re offering a method of interpretation that I quote, “Does not correspond to any existing jurisprudential approach.” So tell us about how your approach differs from the primary ways in which the Supreme Court has approached First Amendment cases and how your approach might yield some different decisions to what we’ve been seeing coming out of the court in say, the past 10 years on these first amendment issues?

Vincent Phillip Muñoz:

Okay, sure. I’m going to group, I hate doing this, but it’s just for convenience, I’m going to do it. There’s I’m going to call it, a liberal approach and a conservative approach. I don’t actually think those terms are really appropriate, but nonetheless, that’s how people think about these things. So the liberal approach says, “Thomas Jefferson erected a wall of separation. That’s the understanding of the establishment clause.” And then they take off running. What does a wall of separation mean? Now they say all of this is originalist because Thomas Jefferson erected the wall of separation and that’s how we get the lemon test, the endorsement test, and other subsequent tests that impose the strict separation of church and state. I don’t think any of this is really originalist. They don’t really understand what Thomas Jefferson said. They take one metaphor, just for the record, Thomas Jefferson had nothing to do with the drafting of the First Amendment.

He advocated a Bill of Rights, but he was in Paris at the time the first Amendment was drafted. He had no direct connection. The wall of separation comes from a letter he wrote in 1802. So to even use Jefferson is a little bit specious. But that’s a different problem. But they take this idea of a wall of separation and run with it. Conservative judges do something a little bit different. They don’t know what the text means either. They recognize the text is ambiguous, so they go to traditional practices.

Did the first Congress allow chaplains? Yes. Well then chaplains must be okay. Did the first Congress support religion? Well, in some ways they did in the federal territories, the northwest ordinance. So I guess that means support of religion is okay. So they look to traditional practices, especially the practices of their early founders. That’s a common way of doing jurisprudence. There’s much to be said for it, but that’s not how the founders talked about religious liberty. It’s not really originalist. When the founders talked about religious liberty, they used natural rights language. So if you really want to follow the founders, now it’s a different question of whether we should, but if you really want to follow the founders, you have to understand how they conceived what they thought religious liberty was.

Samuel Gregg:

So you’re arguing in a sense for a more philosophical approach to this rather than, let’s call it a historical approach to understanding what the original meaning means?

Vincent Phillip Muñoz:

That’s exactly right. I find that compelling because I think it reflects actually the founder’s understanding. You could say there’s an interesting historical question. How do we understand the founders? By what they did or what they said? And that’s a rich historical question. I think we should understand the first amendment by what they said and then the philosophy behind it, not simply by their actions.

Samuel Gregg:

That brings me to the next question I wanted to ask you, very naturally actually. So you make it very clear that the founders by and large understood religious liberty as an inalienable natural right. Now this idea obviously did not just pop out of nowhere. So where did that understanding in your estimation come from? Is this a straight translation from say, Locke’s letter on toleration or is it derived from older natural law sources like Protestant natural law theorists like Hugo Grotius or even medieval natural law thinkers or some combination of these sources? Or was there something distinctly American in the way that the founders talked about religious liberty as an inalienable natural right?

Vincent Phillip Muñoz:

Yeah. Good. That’s a difficult question. Let me tell you what I try to do in the book and then give a fuller answer to your question. What I try to do in the book is just simply present the clear evidence that they talked about religious liberty. This way it’s very easy to show. You just go to the early state constitutions. There was a great period of constitution making between 1776 and 1791 in America, mostly at the state level. Obviously we made the federal constitution as well. In these early state constitutions, there are declarations of rights, and these were not law per se, but they were statements of political principles. And when you go back and read those declarations of rights, what you see is they all say the same thing about religious liberty. It’s a inalienable natural right or it’s a natural right. So that’s the evidence that the founders conceived religious liberty as a natural.

What I then try to do is explain using Isaac Backus, one of the most important Protestant ministers at the time, a Baptist minister, Thomas Jefferson, who’s my representative of secular enlightenment philosophy, John Locke in particular. And then James Madison, who’s interesting—he’s really unique, his natural theology. I try to show how through the traditions of secular philosophy, protestant theology, and natural theology or natural philosophy, how the founders themselves conceived the natural right to religious liberty. I don’t trace the intellectual heritage of that thinking. That’s a different project really beyond my expertise. Certainly you can see elements of Locke in Jefferson’s thought without a doubt. You can see elements of Locke in Madison’s thought. But Locke, as far as I know, never uses the language of inalienability. That’s a maybe uniquely American conception, consistent perhaps with Locke, but different than the language he uses. And then of course there’s a rich Protestant tradition. We tend to oppose in light of philosophy or lacking in philosophy with Protestantism, but the founders didn’t and I tried to show the harmony in their own thinking.

Samuel Gregg:

So is that where you would identify something distinctly American in the way that the founders talked about religious liberty as an inalienable natural right? It’s a combination in a sense of Protestant thinking about this particular question as well as obviously enlightenment ideas about toleration that were becoming much more widespread in, let’s call it the North Atlantic world at this particular point in time?

Vincent Phillip Muñoz:

Yeah, I think that’s right. And if you really push me, though this will make my integralist friends go crazy, I think you can even find at least the preconceptions of a distinction between church and state and the makings of the beginning of an idea of a political right or civil right to religious liberty. And even the thought of Thomas Aquinas, that’s a different podcast. But I think you’re right to see, and what I’m trying to show is there are both theological and philosophical influences that the founders draw upon, but I just try to explain the founders as they presented themselves.

Samuel Gregg:

Well, you won’t be surprised to hear me say that. I think you’re right about Aquinas and I read other scholars who’ve suggested in this regard that you can find a type of argument for religious liberties and natural right in medieval canon lawyers. But as you say, that’s a different discussion for a different podcast. I’d like to move towards the end now, but I’d really like to shift the discussion in a different direction. And it concerns part of your book that at least I found especially interesting, and that’s perhaps because it’s the area that I knew the least about before reading your book. And this concerns something you mentioned before, which is the way that different states and different state constitutions treated religious liberty. In fact, on pages 58 to 59, you list all the different provisions of the different states about religious liberty of and from worship between 1776 and 1786. So this leads me to two questions. First, what influences, if any, did these texts have upon the first amendment? Second, what were the starkest differences between the various state provisions for religious liberty?

Vincent Phillip Muñoz:

Let me start with the second question because that will help me address the first, the starkest differences I think are the state of South Carolina’s 1778 Constitution of South Carolina. And then the Virginia Constitution as drawn out or filled in by Jefferson’s Virginia statute for religious liberty. So the 1778 South Carolina Constitution, it’s the one founding era state that actually established a religion.

Samuel Gregg:

Only one. Because you often hear people talking the states.

Vincent Phillip Muñoz:

Everyone says six or seven states established a religion. They say that because Leonard Levy, famous scholar, not always fully truthful scholar, famous scholar said six or seven states had established religions. The reason Leonard Levy said that is because he said, “If a state funded religion, it had an establishment.” But he was imposing a definition of establishment. He was taking a mid-20th-century jurisprudential category. If you fund religion, you have an establishment and reading it backwards. The founders did not associate, at least not all the founders funding a religion with establishment. And that’s one of the things I try to show. The language on whether you could or could not fund religion was separate from language concerning an establishment. So you have the South Carolina constitution that says, “We have an established religion.” What that meant is certain religions, you had to be Protestant to be incorporated.

The state constitution prescribed articles of faith. It prescribed how ministers were selected. The state had authority to limit how much a church could raise every year. The state delegated taxing power to churches. This is all part of an establishment.

On the other hand, if you go to the 1776 Virginia Declaration of Rights and then the 1786 Virginia statute for religious Liberty, Madison and Jefferson said, “No one’s civil rights should be affected, both positive or negative according to religious affiliation.” That’s the range. That was your first question.

How does this all impact our understanding of the First Amendment? Well, as I alluded to before, because there are real differences, there was a real motivation to keep these questions at the state level and you see that in the respecting an establishment. If we said, “Federal government should make no law respecting abortion.” We would immediately understand it. Oh, because that’s a state question. I don’t want to repeat what I said before. At the same time, the natural rights philosophy gives us an indication of the substance of the free exercise class.

Samuel Gregg:

So here’s my last question and it’s very much directed to contemporary circumstances. What does your message about religious liberty and the way that the founders understood it, what do you think the most important message is on the one hand for those who take a, let’s call it liberal approach to questions of the First Amendment? And what does your approach say to those who take, let’s call it a conservative approach to the First Amendment?

Vincent Phillip Muñoz:

Yeah. Well, I should say, I’m not trying to advocate my approach, I’m just trying to set forth the founders’ understanding as best I understand it and as clearly as I can express it. So if you don’t like the argument of the book, blame the founders, don’t blame me. I’m pretty candid in the conclusion. I try to assess it. My voice comes out in the conclusion. I say, “This is what I see as the strengths of the approach. This is the weakness of the approach.” So I’m just trying to operate as a scholar here. If there’s one thing I’m trying to show, it’s that judges have abused the founders and misused them. They’re really rewriting the First Amendment.

Samuel Gregg:

And you mean judges who would self-describe themselves or be described as liberal and conservative on these issues?

Vincent Phillip Muñoz:

Yeah, more so the liberals, but also the conservatives to be honest. Now whether this is malicious or accidental, I think it’s pretty obvious when it’s malicious. It’s maybe less obvious if it’s accidental. But either way, they’re rewriting the First Amendment and that’s one of the things I’m trying to show. Now we might like that rewriting or we might not, but let’s have an argument about it. To have an argument about it, you first have to see what’s been done.

Samuel Gregg:

And that seems like a good point to end our discussion. Professor Phillip Muñoz, thank you very much.

Vincent Phillip Muñoz:

It’s a pleasure. Thank you.

Samuel Gregg:

You’ve been listening to Liberty Law Talk in which we’ve been discussing Professor Phillip Muñoz’s, new book, Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religious Clauses, published by the University of Chicago Press and available at Amazon, as well as all good bookstores. This podcast is available here at the Law & Liberty website and all good podcast sites like Apple Podcast, Spotify, and Pod Chaser. If you like what you hear, please give us a five star rating to encourage more people to join us every month. I’m Sam Greg for Liberty Law Talk. See you next time.

Brian A. Smith

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. And please visit our journal at lawliberty.org.

Men (Not) at Work Oct 31, 2022

Why are so many prime-age men checked out, neither working nor looking for work? Nicholas Eberstadt discusses his book Men Without Work and a hidden employment crisis with host Samuel Gregg.

Sam Gregg:

Welcome to Liberty Law Talk. My name is Sam Gregg and I am Distinguished Fellow in Political Economy at the American Institute for Economic Research, and I’m also contributing editor at Law & Liberty, part of the Liberty Fund Network. Thanks for joining us today. It’s long been known that work has major economic significance, but also a great deal of significance for human’s social and even moral development. Of all the creatures in this world, humans alone work. Animals don’t work. Plants don’t work. Minerals don’t work. That alone should tell us that work is something fundamental to who we are as humans. It should also tell us that when people work, where they’re paid or unpaid but can’t work or don’t work, we can expect many negative consequences that go beyond work’s economic dimension. America’s long prided itself on its relatively low unemployment rate compared to, for example, western European countries, and at this present moment in time, unemployment is extremely low in the United States. Yet, we also know that many Americans, especially young American men aren’t working, and in some cases are choosing not to do so. One reason we know that is because of the research conducted into work and employment patterns in the United States economy by our Liberty Law guest today, Dr. Nicholas Eberstadt. Dr. Eberstadt holds the Henry Wendt Chair in Political Economy at the American Enterprise Institute, where he researches and writes extensively on demographics and economic development generally, and more specifically on international security in the Korean Peninsula and Asia. Domestically, he focuses on poverty and social well-being. His many books in monographs include Poverty in China, 1979, The Tyranny of Numbers, 1995, The End of North Korea, 1999, The Poverty of The Poverty Rate, 2008, and Russia’s Peacetime Demographic Crisis, 2010. He has a PhD in Political Economy & Government, an MPA from the Kennedy School of Government, and an AB from Harvard University. In addition, he holds a master of science from the London School of Economics. In 2012, Dr. Eberstadt was awarded the prestigious Bradley Prize. Today, we’re going to be talking about his latest book, or more precisely, his updated new book. Originally published in 2016 as Men Without Work: America’s Invisible Crisis published by Templeton Press, Dr. Eberstadt’s book cast a spotlight on the collapse of work for men in modern America. Rosy reports of low unemployment rates and full or near full employment conditions, he contended, “We’re overlooking a quiet continuing crisis.” That is Depression-era work rates for American men of prime working age, between 25 and 54. The grim truth he’s stated at that time was that over 6 million prime-age men were neither working nor looking for work. “Conventional unemployment measures,” he said, “ignore these labor force dropouts, but their ranks had been rising relentlessly for half a century.” Now, republished and with a new introduction as Men Without Work: Post-Pandemic Edition, again published by Templeton Press, Dr. Eberstadt now says, “Six years and one catastrophic pandemic later, the problem has only worsened. Moreover, it’s seemingly spreading among prime-age women and workers over 55.” In a brand new introduction, Dr. Eberstadt explains how the government’s response to COVID-19 has exacerbated the flight from work in America. From indiscriminate pandemic shutdowns to almost unconditional unemployment benefits, “Americans,” he says, “were essentially paid not to work.” So, just today, despite all the vaccines and all the developments that we’ve had in combating COVID, inexplicable numbers of working-age men, but also women are sitting on the sidelines while over 11 million jobs go unfulfilled. That means that our current low levels of unemployment are grievously misleading, and the truth is that fewer prime-age American men and it turns out women are looking for readily available work, than at any previous juncture in our history. Nick, welcome to Liberty Law Talk.

Dr. Nicholas Eberstadt:

Sam, it’s a pleasure. Thanks for inviting me.

Sam Gregg:

Well, I’d really like to begin where I begin with most conversations of this nature, which is when you began exploring this topic, which I think it’s fair to say is on a lot of American’s minds now, what was it that originally attracted you to this subject? What was it that first alerted you to this problem, which you suggest was essentially and least originally a problem with American men?

Dr. Nicholas Eberstadt:

Well, Sam, I think that what laughingly passes as my career is looking at problems that are hiding in plain sight. Whether it’s the mismeasure of poverty or social crises and what was once the Soviet Union, I kind of stumbled onto this by recognizing that I was hearing an awful lot of happy talk around 2015 about unemployment levels being at almost historic lows, that we were at near full employment back in 2015. It seemed to me that this was contradicted by the evidence of my senses, not the least of these being that almost half of the American public back in those days was saying that we were still in a recession, the kind of subjective impression. I’m certainly not now, nor have I ever been a labor economist, but I’m a pretty good trespasser, so I started getting into some of the data indicators, and all of a sudden I realized, gee-whiz, guess what? Working-age men between 25 and 54 were suffering employment rates that were more or less mirroring the tail end of the Great Depression. So, in 2015, 2016, prime-age men, as they’re called, the 25 to 54 group, were reporting work rates that were more or less the same as the rates in the United States in early 1940 when the national rate of unemployment was about 15%.

Sam Gregg:

We weren’t that far away from the depression.

Dr. Nicholas Eberstadt:

Yeah. It was the tail end of the depression. It wasn’t the depths, but it was part of the depression. So, the reason that we were getting these happy talk numbers on unemployment is because one factor in the whole tableau was being omitted, the men who were not in the labor force to be either in the numerator or the denominator. The original unemployment rate was constructed in such a way as to do unemployment over workforce. It was inconceivable by the people who put together the unemployment rate statistics back in the late ’30s that able-bodied men would be sitting on the sidelines, yet by 2015 and 2016, more than 10% of the civilian prime male workforce was checked out, neither working nor looking for work.

Sam Gregg:

Well, one issue, which I suspect is on the minds of many Liberty Law listeners, is the degree to which this phenomena that you’re talking about, in the pre-pandemic era, how much was this a question of some of the cultural change, for example, that started manifesting themselves say, in the late 1960s as part of which I might call the general questioning of what many people would call traditional American ideals, including the ideal about work, and how much do you think this owes to specific policies implemented by different administrations over time? So, what’s really driving this? Is it culture? Is it policy, or is it some combination of both?

Dr. Nicholas Eberstadt:

The conventional wisdom then, and I think still today in academic and policy circles, is that the retreat from the workforce by prime-age men is mainly driven by economic and structural change, which is to say declining demand for less skilled work, decline in manufacturing, share of the workforce, China’s entry into the world trade order.

Sam Gregg:

Arguments that we hear today, right?

Dr. Nicholas Eberstadt:

Yeah, exactly. I mean, it’s the same, I think, received wisdom more or less today, and obviously globalization, offshoring, all of that. Obviously, there’s plenty of truth in that, but it’s not the whole story and it’s not even, I think, most of the story. If you look at the data, which is sometimes helpful, you can see that from 1965 to 2015 and actually onto today, you can trace out an almost straight line in the proportion of men who are no longer in the workforce. I mean, between us nerds, if I say that the line has got an R-Squared of 0.96, you’d know that, that’s a social science straight line because human beings are a little bit untidy, but it’s practically a straight line, which would be 1.0. And we don’t see any shock. We don’t see the economic shocks, the recessions, the China entry into the WTO, or any of the other things that you’d expect from this demand-driven received wisdom. What is causing this? Well, of course, culture is always the last refuge of scoundrels, and when we can’t describe anything convincingly in economic terms, we’ll say it’s culture. So, I won’t go there quite yet, but let me say this first, what we do know is that for years and years and years, if you ask in surveys, as the government does, men who are not in the labor force, why they are not in the labor force, only a tiny minority of them say this is because they could not find work, only a tiny minority. There are many other reasons that are given. The surveys are a bit procrustean that they only give you eight options. You’ve got 7 million lives and eight options, so it’s a little bit awkward. But lack of employment opportunities is not a big factor according to the men who are dropped out of the labor force. So, what we have seen over the period since ’65 were a couple of big changes. We’ve seen a revolution in the family, of course, and it has always been true that never-married men and men without children at home are less likely to be part of the labor force than married or counterparts with kids under the same roof. That’s certainly part of it. We’ve also seen the explosion of social welfare benefits that began with the war on poverty and the Great Society. Our friends in Europe and other OECD countries say that we’re painfully stingy in our social welfare benefits, but that doesn’t necessarily mean that the incentives and disincentives have some influence on our activities in the workplace. We’ve also seen a big explosion, a new wave of immigration in the United States. We, Americans, think of ourselves as a nation of immigrants, but from really the ’20s until the 1960s, we were at a very low ebb in accepting newcomers. We’ve had a big surge of newcomers since the ’60s, and that’s affected all of these patterns as well. Finally, there’s been an explosion of crime and punishment since the 1960s. It started with the crime spree that began in the ’60s. It continued in the ’70s, and into the ’80s. And then, a few years later, there was a wave of punishment, and this wave of punishment has meant that we have now well over 20 million adult Americans with a felony conviction in their CV, so to speak.

Sam Gregg:

And that rules them out for work in some cases, in some forms of employment.

Dr. Nicholas Eberstadt: They are invisible in most of our government statistics and our national statistics, but that does not mean that they are not disadvantaged in the workplace, as you just mentioned. So, we had all of these trends in conjuncture moving together, and certainly, it’s reasonable to surmise that these had a major impact on some of the outcomes that we’re discussing today. I cannot go into the blank pages of paper that I look at with all the decimal points on it and divine culture out of that, but I think we can tell a story that is consistent with a change in mentality about family, work, meaning in life, and other things like that.

Sam Gregg:

You mentioned the word invisible, and I’d like to focus on that a little bit because in the 2016 edition of Men Without Work, in the original introduction, you wrote, quote, “The collapse of work for America’s men is arguably a crisis for our nation, but,” you added, “largely an invisible crisis.” Now, when I first read that, the thought that sprang to my mind was, “Why invisible?” Is it because Americans simply don’t want to talk about it because it starts to raise questions about how faithful we are to certain American ideals? Is it because talking about it would spark some awkward questions, or is the invisibility to do with the fact that it was affecting a segment of American society that we simply aren’t used to thinking about as experiencing a major problem, in other words, men, particularly say, white men, for example, or is it some sort of combination of these things, or is it something different altogether that accounts for this invisibility phenomena?

Dr. Nicholas Eberstadt:

That’s a really good question, Sam. I think it’s a number of different factors, some of which you’ve already mentioned. I mean, quite obviously, many of these invisible men missing from the workforce and really from society were getting ready for deaths of despair, not deaths of rage and anger. We didn’t see rioting in the street by these men. We’re more likely to see opioid overdoses. So, because they were not a public menace to society in quotes, they didn’t come into the evening news, in the way that crime blotter activity so often does. So, that made it a little bit more easy to ignore. But I think also, as you intimate, our preconceptions were in play here as well. I mean, in the academy, of course, working-age men are not a privileged victim class. They’re going to be overlooked when one is talking about disparities. They’re kind of the baseline against which one judges disparities, and it’s certainly also true that more or less, since the beginning of civilization, working-age men have naturally been regarded as providers, rather than as a vulnerable dependence.

Sam Gregg:

Making a sense of shame, if you’re not working or if you don’t seem to be supporting people through your work.

Dr. Nicholas Eberstadt:

Shame and stigma, that may also lead to quietude. Though, for all of these reasons, I don’t think that the general public or even well-informed readers, policymakers were prepared or predisposed to recognize this problem. So, for actually about two generations, they didn’t.

Sam Gregg:

That’s fascinating. I mean, another word that comes to my mind, and you’ve alluded a little bit to this in some of your previous comments, when it comes to this invisibility and the particular demographic that this was affecting… We’re going to go on and say more about how you’re arguing now that this phenomena is starting to affect other demographics, but one word that came to my mind when I read your book was the word, alienation. Now, when many of us hear that word, we think of course of Karl Marx, who wrote a great deal about how work for particular people and particular economic settings produced what he called, alienation, by which he meant a sense of distance between ourselves, our work, and the product of our work. Now, I happen to think that Marx was wrong about that, but he was pointing to us a certain type of… Let’s call it experience. But your book pointed, and the new version of course also points to a different type of alienation, the alienation that’s experienced by not working when you can and perhaps should be working. So, how would you describe the type of alienation that Americans today experience from being nonworkers, even if they don’t even use the word alienation to describe the experience?

Dr. Nicholas Eberstadt:

Well, I should confess that there was a time when I would’ve called myself a Marxist-

Sam Gregg:

I never knew that.

Dr. Nicholas Eberstadt:

… but I knew I’m kind of bilingual because of that, so I’m not going to give you a whole thing about the labor versus labor power, the consequences of Marxian alienation here. I think we’re kind of talking more about Émile Durkheim than Karl Marx in this particular circumstance. So, really, I think the best portrait comes from the self-reporting of the people involved to the US government, from the Bureau of Labor Statistics’ Time Use Surveys. The BLS asks all adults for reasons of their own, “What do you do between the time you wake up in the morning and the time you go to bed, and how long do you spend doing it?” And the picture which prime-age men, who are neither working nor looking for work, paint through their self-reporting is not just troubling. It’s kind of horrifying. According to self-reporting in these surveys, these men who are neither working or looking for work, and let’s add another layer, and not in training or education, about a 10th of the men who were out of the workforce or full-time students getting ready for another job-

Sam Gregg:

You’re talking about people who are not even preparing to go into the workforce.

Dr. Nicholas Eberstadt:

I think over on the other side of the ocean, they call it NEET, N-E-E-T, neither employed or in education or training. If we look at that group, which is not a small group, well over 6 million, they basically don’t do civil society. Almost no time invested in either worship, or volunteering, or charity work. Although you might think they have practically nothing but time on their hands, they do surprisingly little help around the house with other people, other family members, or with housework, a lot less than employed women with kids, who are more or less the most time-scarce, time-poor people in America. They don’t even get out of the house that much. They’re getting out of the house less and less according to their self-reporting. What they do is they spent a lot of time in front of screens. Now, these clunky surveys won’t tell us what they’re watching or what sorts of devices they’re watching, but they’re reporting, spending about 2000 hours a year in front of screens. Now, for many people, that’s like a full-time job. And when we bear in mind that other reports indicate that about half of these men say that they’re taking pain medication every day… I mean, not necessarily prescription or illicit, over-the-counter, maybe in some cases, but half of them are taking pain medication every day. We’ve got this vision not just of people spending all day playing World of Warcraft or Call of Duty. They’re doing it stoned, and it’s a kind of picture of life in limbo in purgatory. It’s miserable, and certainly, these are not the sorts of skills that are going to get you back into the workforce. They’re going to make you much more likely A, a long-termer, and B, possibly a candidate for deaths of despair.

Sam Gregg:

Well, you’re really talking about people. Their alienation is their living outside reality.

Dr. Nicholas Eberstadt: Increasingly detached from family, certainly detached from work, detached from the community or at least from one of the apertures that many involved themselves in the community, and the volunteering and charity, and worship, and so forth. One of the things which I don’t think we do very well in modern economics is talk about poverty. We’ve got all of this emphasis on lessons learned, and very little on lessons forgotten. When we talk about poverty, we’ve forgotten all of the lessons the Victorians knew. And one of the things the Victorians took as obvious was that there is a distinction between poverty and misery, and what we’re describing here are people who, in any other sort of historical era, would be seen as fairly well off in a material sense, but living in this life of degradation and misery.

Sam Gregg:

And deep unhappiness, I suspect as well.

Dr. Nicholas Eberstadt:

In many cases, perhaps.

Sam Gregg:

So, one aspect of the problem, of course, that you addressed particularly in the first version of your book, is you focused very much upon the demography of the unworking American man. Now, I know you’ve worked a great deal on questions of demography throughout your entire career, especially for example, the very real problems associated with population decline, but in the 2022 edition of Men Without Work, you point out, and this is where I started to get very worried, that the unworking problem is now going beyond that demographic of American men. It’s now working its way into other demographic sectors, particularly, I thought this was interesting, prime-age women and older workers. Now, is this something that you believe reflects the pandemic or more particularly government responses to the pandemic, or did you suspect that at some point, these trends were going to emerge anyway?

Dr. Nicholas Eberstadt:

I think it’s too soon to tell how deeply embedded new mores are being felt about work and working in the rest of the American population. I think that we’ll only know that in the fullness of time, but we’ve had at least a shock in the wake of the pandemic, and we may also be experiencing a shift. The evidence that we’ve had something big occur is screaming on the headlines in the business section every day, the 11 million unfilled jobs in the United States. We have a piece-time labor shortage, unlike anything we’ve ever experienced in the history of our country before. And the number of unfilled jobs has shot up by 4 million and more since pre-pandemic times, and by some fascinating twist of fate, our labor force in the United States is about 4 million or so shy today of where it would have been on pre-pandemic trends. So, the upsurge in unfilled jobs, mirrors and almost matches the slump in workforce availability that we have in post-pandemic America today. What is striking about this is it’s not just the continuation of the old men without work story. I mean, that’s there, but we’re now seeing a whole new face on the flight from work in post-pandemic America because prime-age men account for only a very small minority of the 4 million or so shortfall that I just mentioned. I mean, depending on how you calculate it and what your baselines are, 10%, certainly under one-sixth. The overwhelming majority of the shortfall is men and women 55 years of age and older, and the rest is mainly prime-age women, women 25 to 54. Now, the 55-plus group is one of the few good news stories in the United States labor market before the pandemic. Work rates and labor force participation rates for the rest of the population were kind of heading south from the turn of the century until the pandemic. It’s only the 55-plus whose rates were going up, but those were shocked by the pandemic, and bizarrely, they have stayed at their summer of 2020 levels for a couple of years now.

Sam Gregg:

Wow, that’s fascinating.

Dr. Nicholas Eberstadt:

Despite the rollout of the vaccines.

Sam Gregg:

Right. Right.

Dr. Nicholas Eberstadt:

And despite everything else. So, explaining and understanding what has caused this enormous setback for our silver workforce is kind of important. And then, there’s the question about what’s going on with the shortfalls for prime-age women as well.

Sam Gregg:

So, looking ahead then, there’s an issue I suspect is on many people’s minds, which is what are likely to be some of the long-term consequences, if these trends that we’re talking about today are not slowed down, let alone reversed? We’re going to do a little bit of crystal ball gazing here. I don’t know if it necessarily guarantees low unemployment forever, but I suspect it might have some productivity implications. So, what do you regard, first of all, as the most serious economic consequence, and second, the most serious social consequence of these trends? I appreciate that we’re speculating now, but on your understanding of the data and your study of this very complicated question, what do you think of the long-term economic consequences and long-term social consequences?

Dr. Nicholas Eberstadt:

The long-term economic consequence I think is the risk of stagnation and division in our society. If you take a look at any sort of growth accounting in any way you want to do it, you’ve got to have growth of capital, growth of labor, growth of productivity. If you’re going to get economic growth, then you can kind of divide up a growing pie. We may not divide up a growing pie the way that everybody would like, but if you have a growing pie, you can at least have a debate about this. Since the turn of the century, America’s per capita growth rate has been not much over 1%. Okay. That means that we’re on a path right now to doubling our incomes or output per capita about every 70 years. So, that means that in one’s working lifetime, one is likely to have to scale back expectations a lot. Not likely to see a doubling of one’s own incomes with that sort of pace of growth. You may not even really see much improvement for your kids. You have to wait until you see it for your grandkids. I mean, that’s-

Sam Gregg:

That’s depressing.

Dr. Nicholas Eberstadt: That’s a pretty depressing tableau, and of course it will lead, I think, in any sort of open society, with the sorts of history and expectations that we have, trying to figure out how you’re going to increase living standards otherwise, and I think the way you do it otherwise is through government and redistribution. So, you end up fighting over a stagnant pie. I think that’s a pretty grim prospect, and that may also be the answer to the social side of your question, but the notion that living longer and working longer is not something that’s part of a fulfilling life. I think it gets us into some territory in which we’re going to find a lot of trouble. It’s very hard for me to imagine how the traditional historical American optimism squares with that. We’re going to be a more… There’s nothing that we can do to stop becoming a grayer society. So, putting that into the tableau, I think, is pretty sobering.

Sam Gregg:

Yes. I mean, I often think about the productivity implications of this, and of course, you mentioned government redistribution, et cetera. Of course, that has its own implications for productivity of its own nature. We’re getting near to the end of our own conversation, and I think the obvious place to end is the question that Americans, ever pragmatic as we are, the question that a lot of Americans will ask is, what can we do to reverse these trends? Is there in fact anything that we can do at this point, and if so, is it a culture-first approach? Is it about altering incentives, or are we primarily looking to lower-end legislation to tackle certainly what you describe as a very complicated and intertwined set of social, economic, and cultural issues?

Dr. Nicholas Eberstadt:

Well, in policy research, one is supposed to exclude magic wand solutions. Right? You’re only supposed to be able to talk about the buttons you can push on the dashboard. So, I have to exclude the magic wand solution of fixing the family in America, and I have to exclude the magic wand solution of restoring the profile of religious confidence and belief to say, Circa 1960 levels. Those we have to leave out. On the dashboard, improving educational skills, in particular, what we’re not allowed to call vocational skills. I mean, that phrase is no longer politically correct. It’s a scandal that so many people graduate from high school in the United States without a skill. College isn’t for everybody. We know that. But everybody who goes through a US education should have a skill that they graduate with. By the way, maybe the worst thing about the policy response to the pandemic was the irresponsible and arbitrary shutdown of schooling for kids in the United States. People are going to have a lot to answer for on that one, and the long-term costs of that are going to last with us, not just for decades, for generations. So, there’s the education portion. There’s the question of, I hate to say, rethinking because it’s kind of pompous, but we have to, I think, really reinvent our entire disability insurance system because the system now is kind of a sprawling, incoherent archipelago based on good intentions, but now very largely incentivizing helplessness and dependence.

Sam Gregg:

And probably designed for a different time, I imagine is where-

Dr. Nicholas Eberstadt: For a completely different time. Absolutely, Sam. I mean, in our social welfare system as a whole, we need to think about the virtue of a work first principle. I’m not the guy who thought of that. It’s the Swedes up in Scandinavia. After they ran out of other people’s money, they thought about it. It probably will cost more than our current system, but its social benefits I think would be much greater than our current system. We’ll want to cast a spotlight on the tens of millions of invisible Americans who are ex-cons. I don’t know that all of them can be rehabilitated, but many, many, many of them can and can be reintroduced to society, to family, to the workforce. Because they’re invisible, we can’t have the evidence that we need for evidence-based approaches to this. It’s preposterous. It’s kind of disgraceful. And then, there’s something which I don’t think government can do at all here, but we as citizens can, and that is to kind of commit truth, to recognize the obvious importance of work to a healthy, robust, optimistic society. It’s far beyond economic, the virtues of work. It’s moral. I mean, employment is a service to others that helps to complete oneself, and if one does not recognize that, one misses an enormous amount of the virtue and the benefit for a virtuous open society.

Sam Gregg:

I was going to say the word, virtue, actually with myself because when we work, it’s not just a question that we’re shaping the world around us. Right? We’re also shaping ourselves. We become more industrious. We take risks. We are more patient. We have to be prudent, et cetera.

Dr. Nicholas Eberstadt:

We’re helping to complete ourselves, just the same way that family does, just the same way that being engaged in society does. It’s a fuller life. I mean, to people who don’t take this as self-evident, it may be hard to explain, but it is true. It has the virtue, the small-

Sam Gregg:

The truth.

Dr. Nicholas Eberstadt:

… but important virtue of being true.

Sam Gregg:

Well, thank you, Nick. That’s a great place to end. I’d like to end by reminding our Law Liberty listeners, we’ve been listening to Dr. Nick Eberstadt and discussing his new post-pandemic edition of Men Without Work: Post-Pandemic Edition, published by Templeton Press, and available at Amazon, as well as all good bookstores. I’m Sam Gregg for Liberty Law Talk. See you next time.

Markets in America Oct 18, 2022

Law & Liberty‘s editor Brian A. Smith talks with Samuel Gregg, about his new book The Next American Economy.

Brian Smith:

Welcome to Liberty Law Talk. I’m the editor of Law & Liberty, Brian Smith. Joining me today is my friend Samuel Gregg. Sam is a Distinguished Fellow in Political Economy and Senior Research Faculty at the American Institute for Economic Research, as well as a contributing editor for Law & Liberty. He’s the author of numerous books, including the subject of our discussion today, and has just released The Next American Economy: Nation, State, and Markets in an Uncertain World. Thank you for joining me, Sam.

Samuel Gregg:

Brian, it’s always good to be with you, and good to be on the other end of the podcast.

Brian Smith:

Yeah, I thought you might enjoy that. So longtime Law & Liberty readers might already know the answer to this question, but I wanted you to talk some about what led you to write this book.

Samuel Gregg:

Well, as the title suggests, The Next American Economy: Nation, States, and Markets in an Uncertain World, America is very much at a crossroads right now when it comes to its future economic direction. We have a choice, I think, really between what on one hand I call a type of state capitalism, which is essentially extensive government intervention in the economy via protectionism, industrial policy, et cetera; or, we have a choice of moving in a free market direction. And by free market, I mean more than just markets. I mean all the institutional and cultural underpinnings of that type of economic system, which I think has assumed a particular form in the United States. So there’s that big choice, I think, that is increasingly laying before us. At the same time, as you know, there are many debates about this that are occurring on the left and on the right, and between the left and the right. Traditionally in much of American politics, these debates have fallen more or less along left/right lines. But one of the interesting things about this particular debate is most of the heat and lies about this debate that is occurring is occurring on the right, which is an interesting phenomenon, because at least since the 1980s, up until I would say around about the mid 2000s, the right in America was more or less behind the case for free markets. Now that is no longer the case. On the right you have people like myself. We very much believe in the case for markets and why they’re important; not just economically, but politically and culturally for the United States. And then you have others who are arguing in favor of using a very big state to intervene in the economy and specific sectors of the economy to try and deliver economic outcomes that would be different than what would otherwise be delivered by markets. The wider context of all this is that these economic debates are occurring in a context in which it’s not the 1980s anymore. We’re living in a very different set of geopolitical and domestic political arrangements. Those of us who believe in markets and those who read the book will discover that while I recognize some of the problems that people on the other side of this debate are pointing to, I think their diagnoses are often wrong, and I think certainly their solutions are very wrong. It’s very clear to me that those of us on the free market side cannot talk and act and think as if we are living in the 1980s. So much has changed since then and up until now. The free marketers don’t adjust the way they argue, not so much the content, but the way they argue, and the narrative they present their arguments for markets in will lose this very important debate, and I think America will be worse off for it. So that’s why I wrote the book. The first part is really trying to set the political scene, then go on and explain why protectionism and industrial policy, but also this phenomena of stakeholder capitalism, which we’ll probably say more about later, why these are very bad alternatives for America. Then I try and outline what I call a creative nation, a competitive nation, and a nation that’s a trading nation as the alternative. But again, wrapped up in a particular narrative that I think goes back to the American founding in the American experiment, because if these arguments are not made in this type of way with this type of context and with that narrative, the case for markets will increasingly lack legitimacy in the United States. So it’s not just a series of economic problems we’re dealing with; we’re dealing with some serious political challenges as well.

Brian Smith:

So speaking of politics. I mean, I agree with you completely that all of the really interesting stuff being said right now is on the right about this, but what I’d like to hear is your story of how conservatives got here, conservatives here understood as national conservatives. Where did that movement and its associated industrial policy advocacy come from? And what do you think the best case on their side is? Clearly, you disagree with it, but one of the things I thought was interesting about the book is how you tried to unfold some of the ways they fell into this position. So why don’t you tell our listeners about that and sort of unfold this narrative. Where do you think this came from?

Samuel Gregg:

One of the things I’ve tried to do is to give as fair a case to the other side as possible because I don’t like producing straw men and tearing them down, because frankly, that’s what the other side do on these topics for the most part. But what I think if one is going to give the best sort of analysis of how this happened, how we saw so much of the right move in the direction of economic interventionism, I think it goes back to, first of all, the 1990s when we saw people like Pat Buchanan come to the fore and start arguing that free trade and trade liberalization had had deleterious social effects upon the United States. Many of the arguments we’re hearing today were made by people by Buchanan in the 1990s. And remember, he ended up basically derailing George H. W. Bush’s hopes of a second presidential term. So there was a sense within much of the country, particularly on the right. Many people started to view markets and economic globalization as not being in America’s long-term interest. So that’s one background. Another background, which is an even deeper background, is that trade issues have been part of American political debate right from the very beginning of the republic. I think we often forget that. But in the 19th century, slavery of course was the biggest political dividing point in the American body politic, but tariffs and trade policy came a close second after that. Differences about trade policy split North and South. It split parts of the North, parts of the West, parts of the East. It was one of these dividing points that split the country regionally, sometimes even within particular states, and even within the major political groupings that crisscrossed the country. So in many respects, we are going through the same types of debates that we’ve had in America for a very long time, and that precede Pat Buchanan and his outbreak, if you like, of economic nationalism in the 1990s. Fast forward a few years, and what do we find? Well, I think if one is going to look for a breaking point, for many people on the right when it comes to the case for markets, it’s the same breaking point that affected a lot of other Americans, and that was the 2008 financial crisis. Now, I could give you lots of reasons here why I think that crisis had far less to do with the private sector and far more to do with bad regulation, regulations that incentivized people to behave badly, excessively low-interest rates from the Fed for too long, the government essentially having a type of pseudo monopoly of the housing market, et cetera, et cetera. We could go through all that, but unfortunately, that doesn’t matter.

Brian Smith:

Because they’re government failures.

Samuel Gregg:

They’re government failures, but the problem is that the narrative that, one, was that this was a crisis of capitalism, of American capitalism, that there was something fundamentally wrong with the economic system that many people identify as being quintessentially American. In fact, we know that people in powerful positions in China watch this crisis very closely, and they concluded that the capitalist model was flawed in some fundamental ways and that China needed to avoid some of these problems, which is precisely when China started moving away from what had been a relatively limited economic liberalization, much more back in the direction of a state-centric economy, which is more or less, I think, what modern China is now today. So that, of course, I think the financial crisis really shattered a lot of people’s confidence in the long-term benefits of markets. Many conservatives looked around and said, “Well, we need to rethink the role of the state in the economy. And we’re also not sure whether economic globalization has been as beneficial as people had hitherto supposed for the United States. There must be other ways.” When you add to that a good number of conservatives concluding that the administrative state is here; we haven’t really done much to take it down. Maybe it’s time we should start using it for pursuing what we believe is in America’s best economic interests, and that means using state power to try and achieve that, which I happen to think is more or less moving in the direction of how progressives think about America and the role of the state, et cetera.

Brian Smith:

Which explains things like Compact Magazine in some ways.

Samuel Gregg:

It explains many things. It explains the shift away from markets that you see on the part of a good number of hitherto market-friendly magazines. You mentioned Compact, which of course is a new magazine, but you can look at others such as First Things for example, which now I think it’s fair to say takes a more skeptical view of the role of markets. Another thing which I think is also driving some of this is that America clearly has some serious social and cultural problems, whether it’s drug addiction; whether it’s things like young men who won’t work, don’t want to work and won’t work; whether it’s things like declining birth rates; whether it’s concerns about the implications of immigration for national sovereignty, et cetera, et cetera. All those social and cultural problems, and some of them are actually real problems. The fact that young men are not working is a real problem. The levels of drug addiction, levels of family breakdown, these are real problems. There’s no doubt about that. But many conservatives have apparently concluded that the causes of these problems are primarily economic. They often associate these things, for example, with trade liberalization, which they would argue has emptied out manufacturing and created rust belts, et cetera. And I happen to think that’s all false, but that’s the narrative that has established itself on large parts of the right and parts of the left as well. Many people on the right have concluded that this is primarily an economically caused problem, and therefore we need to use the state to engineer economic solutions that will fix these problems. Now again, I happen to think that that’s a highly economistic explanation of these problems. I think the economy has relatively little to do with these things and much more to do with the social and cultural changes that flowed from the 1960s, as well as things like the disaster otherwise known as Lyndon Johnson’s Great Society programs.

Brian Smith:

Yes.

Samuel Gregg:

So the idea that the state can fix these problems through raising tariffs or introducing industrial policy strikes me as fanciful. But nonetheless, these social problems, I think, are what are driving many conservatives in this type of direction. The last thing I’ll say about all this is that I think free marketers’ responses to many of these questions has been inadequate. What do I mean by that? I mean that the response of free marketers has been to focus heavily on the economic problems associated with the economic arguments being made by people on the right who want protectionism and want industrial policy. Free marketers have gone very hard, and I go very hard at them as well, about they don’t understand trade, they don’t understand basic elements of things like comparative advantage, trade-offs, the damage that protectionism does to an economy. They either don’t know or they ignore the very real systematic and epistemological problems with something like industrial policy. And that’s all fine, and that all needs to be said, but if free marketers are basically saying, “Look, these other things don’t work. They’re inefficient. And what we have to offer you is efficiency and effectiveness,” well, that’s fine, but that’s not a compelling narrative at a time in which politics heavily revolves around questions of identity. Who am I?

Brian Smith:

Correct.

Samuel Gregg:

What community do I belong to? What is my nation? Who is my tribe? Et cetera. If free marketers don’t understand that they need to move their arguments so that they invest them with a narrative that is cognizant of just how much the center of debate has shifted, then they lose. No matter how good the economics arguments are, if you don’t have a compelling narrative that goes beyond the economy and touches upon things that Americans care about, you lose. And that’s one of the things I spend a lot of time in the book trying to do, is to show, look, free marketers have to be very clear that they love America. That you can be in favor of free trade because you love America. And you have to disassociate yourself from the likes of Klaus Schwab and the World Economic Forum who don’t care about America. You have to be very careful in how you make your arguments. You shouldn’t go around claiming that free trade automatically brings peace and harmony in its wake. That’s not true. Adam Smith, by the way, didn’t believe that was true. Neither did David Hume. So in other words, free markets-

Brian Smith:

Or Alexander Hamilton.

Samuel Gregg:

… well, lots of these people really didn’t believe that. Smith is very clear about this, that free trade does not necessarily lead to greater harmony between nations. I think free marketers made a mistake when they started rolling that argument out in the 1990s and early 2000s. George W. Bush used this argument. Bill Clinton used this argument. And to many people it was compelling at the time. It also fit this wider narrative of Francis Fukuyama’s End of History and the Last Man. So we’re all at the end of history; markets and liberal democracy for everyone. This is inevitable. Well, nothing, my friend, is inevitable. And that is another thing.

Brian Smith:

Right. But the other thing which I think you picked up on in this book, which is really fascinating, is the degree to which if you began taking political economy or globalization politics courses in the early 2000s, it was almost spiritual. This understanding that the world was moving in the correct direction because of these free markets, which invariably were defended solely on these utilitarian grounds. I think you’re absolutely right to suggest that it is a persuasive failure on the free markets balance sheet that we have not developed arguments that point out these alignments between trade and a strong…

Samuel Gregg:

America.

Brian Smith:

Yeah, basically it’s failed to identify trade with American excellence. It’s failed to show the ways in which, or create compelling arguments in which morally, trade is the right way to go. It seems that we’re in want of great moral arguments for trade in this respect. This is not a morality of why trade is good; you’ve done that in other books. But it does do this incredibly important element of persuading people why trade and American nationhood are, if not actually just compatible, more than that. They’re absolutely vitally linked together, but we’ll get to that. I also really like the way in which you laid out this sort of course, the 1990s. But one of the things I wanted to draw our attention to next is that you give a lot of examples of industrial policy failures in the book; ones that you will not hear in ordinary discussions right now on the right, I think, generally. But which of your examples do you think best illustrates why industrial policies don’t deliver as promised?

Samuel Gregg:

Well, that’s a hard question, because there’s so many of them. The one I’ll talk about is Japan. I’m old enough to remember at the end of the 1980s, early 1990s, I remember being in high school, going off to college. And I remember that we were all told in the western world that Japan was the future. That Japan, because of its specific economic model, which involved a considerable amount of industrial policy, was going to supplant the United States as the world’s biggest economy. This was reflected in literature.

Brian Smith:

Mm-hmm. I remember reading Rising Sun.

Samuel Gregg:

Rising Sun, right? The film, and that was turned into a film. Or remember the first Die Hard film?

Brian Smith:

Right.

Samuel Gregg:

The Nakatomi Tower, right? So this was a whole narrative of Japan, because it had deployed industrial policy, was going to be extremely successful, this is why Japan was successful, this was why it was going to eclipse America, et cetera. Well, lo and behold, within two or three years, Japan slips into 20 years of sustained stagnation. There are many reasons for that, including bad monetary policies, the effects of the population decline started to have an effect, many other things. But it’s very clear that industrial policy was part of the problem. And what’s more, the Japanese finance ministry in 2002 publicly admitted this. Something along the lines of, “Industrial policy was one of the major reasons why we started to fall backwards in terms of economic progress and development.” Why Japan had slipped into this very long period of economic stagnation. And so when you go back and you look at the post-war history, post World War II history of Japan, you quickly discover that industrial policy was targeted. Those parts of the economy was targeted; it invariably didn’t work. That those parts of the Japanese economy that were incredibly successful were precisely the parts that did not have industrial policy. It’s also very clear that industrial policy in Japan, like all forms of industrial policy, became heavily cronyistic, heavily linked to the ruling liberal democratic party. And where government subsidies and different forms of industrial policy went, tended to go to where particularly powerful politicians wanted them to go, rather than whatever they were saying was going to be the best dollars spent and the best part of the economy. So the more you look at the Japanese story, the more you realize that all the reasons why industrial policy fails are manifest there. Whether it’s the knowledge problem in the sense that governments and technocrats cannot know what is the most optimal place in which they should intervene in the economy; whether it’s the cronyism that is endemic to all forms of industrial policy; whether it’s the ways in which it results in opportunity costs. Because if you direct money in one particular direction, it means you’re not directing money in other directions. I go on and on in one of the chapters about this, and I say that the Japan example is full of warnings to us as to why we should not go down this path. And today, what do we see? We have some people on the right saying, “China is the future. The Chinese model is how we should be proceeding,” at the very moment where if you look carefully at the Chinese economy, it is now really starting to run into some significant problems. It’s partly because of their self-created population problem, but it’s also got a lot to do with the extensive use of what we would call industrial policy throughout the Chinese economy, and the wheels are starting to come off the cart big time. So the parallels between the ’90s and today in terms of Japan and China are extremely striking. What’s interesting, I find, is that when you raise these pretty well-established points of historical and economic evidence, the people on the other side of this debate frankly don’t have answers.

Brian Smith:

No, it’s fascinating.

Samuel Gregg:

They don’t have answers.

Brian Smith:

One of the things that was striking as you were talking, I was remembering the great shift of Tom Friedman away from being a staunch, pure globalism advocate to writing fanboy articles in his op-ed page at The New York Times saying, “We should be more like China.” This happened around the financial crisis in a big way, and the drum beat just never stopped after that. But it is fascinating, the difference between China and Japan here. The one that admitted failure was the regime more like us, and yet we can’t take them admitting the failure of these policies as a piece of evidence. It is pretty striking. But I wanted to shift to the left a little bit more for a moment, because you do spend, and I suppose that the way I take it in the book is, the place where there is the most intellectual energy right now on the left in these economic issues strikes me as the environmental, social, governance movement.

Samuel Gregg:

Ah, ESG.

Brian Smith:

How do you think those imperatives threaten our prosperity, and sort of create a parallel or aligning with the right’s industrial policy advocates to threaten prosperity?

Samuel Gregg:

Well, ESG, DEI, diversity, equity, inclusion, and the broader stakeholder capitalism agenda, which is largely driven from the left these days, although interestingly, some people on the right are saying, “Well, we should have our own version of stakeholder capitalism,” which again, mimicking bad problems from another source. There’s so much one could say about this. One is that when you go down the path of saying, “Profit and shareholder value are not the primary objective of business,” whether it’s a privately owned company or a publicly traded company, when you start going down that path, then I think you start to disrupt in a very bad way the telos to use an Aristotelian term, of what business is supposed to be about. So families exist to raise children. Militaries exist to fight wars. Business exists, its defining characteristic is to produce profit and shareholder value. Otherwise, it’s not a business; it’s an NGO or it’s something else, but it’s certainly not a business. ESG and stakeholder capitalism and DEI all reflect attempts to relativize profit as the purpose of business. We often talk about that the latter as shareholder capitalism. So when then presidential candidate Joe Biden during the, I believe the 2020 election campaign, called “for an end to shareholder capitalism,” what he was really pointing to was not so much socialism or something like that. He’s really pointing to stakeholder capitalism, which deploys tools like DEI and ESG to try and fundamentally change the nature of business, so that business is about serving a range of stakeholders. Now, there’s one way in which you can talk about stakeholder capitalism in a very sensible way. I mean, every business that goes into any community has to assess who are the primary stakeholders in this community? Who do we have to work with, who do we have to deal with if we want to have a productive presence here and we’re able to make money? No business can ignore those sorts of things. But that’s very different from saying, “We actually have to include all these groups and peoples in our decision making process so that we can realize all these other goals besides just profit.” ESG and DEI are the tools that are typically used to do this. The effect is, I think, to try and fundamentally change the nature of business. You end up with businesses becoming and acting and sounding like left wing NGOs. And this of course is infuriating. It infuriates me because it is fundamentally destroying the telos of business. Destroying the telos of business as profit is makes no sense. It’s like saying, “Well, we’re going to turn the family into a business.” I mean, particular organizations have their telos, and things get very messy and bad when you try and move them away from that. The left, I think, see this as a way in which they can basically transform American capitalism from within. So you keep boards of directors, you keep CEOs, you keep the management structures. But the people you employ, the characteristics that you ascribe to them, that you say you want from them, the stated goals of the business, all that changes in a very negative, in my view, a very negative way so that businesses are not behaving like businesses; they’re behaving like NGOs. That is bound to have some very serious economic effects. It’s also going to have some very negative political effects. Because the other side of politics, the right, will say, “Well, okay, if business is in bed with the left, then why should we care about free enterprise? Why should we care about protecting business from excessive regulation? Why should we care about those who tell us we shouldn’t be using state power to try and deal with these types of problems?” Now, I happen to think that using direct intervention or even antitrust law to try and deal with this problem coming from the left inside the American business community is a very bad idea. But much of the business community has set itself up now for being a target from some people on the right. And, they’ve been set up in this position by people on the left who, by the way, have no particular interest or concern for markets and capitalism. They’re not doing this because they’re trying to forge some sort of new consensus in favor of markets. No; they’re trying to change the nature of American capitalism so that it’s not really American capitalism anymore. Instead, it looks much more like a 1970s European social democracy. Over, which of course, is laying a fair amount of what would be called corporatism, the idea that you had government, business, and it used to be unions working together to sort of decide, make all the decisions, to make all the requisite policies that they decided are needed. Which, of course, leaves lots and lots of people out of the political equation, pushes people out of markets, and creates all sorts of very negative consequences for the economy and the society as a whole. But that’s the sort of mentality, I think, that’s driving some of the stakeholder capitalism. And it’s profoundly anti-market. It’s profoundly anti-market, and it’s profoundly limited government. I think some businesses have gone down this path because they think, “Well, if we don’t do this, it’s going to get regulated for us, so let’s preempt it.” Well, guess what, corporate America? You are already starting to be regulated along these lines. The SEC has moved in this direction. Numerous government agencies are moving in this direction already. So if you thought you were protecting yourselves from potential regulation, you’ve made a serious misjudgment and you’ve let the enemy inside the castle, which leaves you in a much weaker position to fight back.

Brian Smith:

One of the things that strikes me is all roads, in this sense, are leading back to stronger corporatism, which shifts all the incentives in the market in ways. And of course, it’s still sort of a market, it’s just a market with very uneven rules for people sort of outside the corporatist game versus those inside of it. Now, I wanted to quote one thing that you said in the book and ask a question about it. So about midway through, you write, “Individuals can be entrepreneurial in many spheres of life. That includes bureaucratic empire making or securing privileges from governments. Many crony capitalists are superb entrepreneurs in so far as they see opportunities for regulatory capture that others don’t.” And so the question that’s right before us, I think, is what do you think it would take to shift folks that are, or have been brought up in, a corporatist environment into seeking genuinely entrepreneurial creative endeavors? Now obviously there’s probably a policy piece, but are there other pieces that can shift things in a more beneficial direction?

Samuel Gregg:

Well, let’s talk first of all about the policy piece. It seems to me that this is partly a question of incentives and regulation. If the incentives in a given economy line the direction of cultivating favor with legislators and governments so that you get what you want and you get to block out potential competitors and potential entrepreneurs, if all the incentives lie in that direction, it’s highly probable that more and more American businesses and people of an entrepreneurial mindset will move towards those incentives. What that tells me is that we need to change those incentives so that we shift incentives back in the direction of satisfying consumers, providing consumers with goods and services, and away from engaging in capturing parts of the economy that you then rigorously defend with your friends in the government from all potential competitors. How do we shift the incentives in this regard? Well, it seems to me that that corporatism depends very heavily upon a big state, lots of regulation, lots of intervention in the economy. The more you wind back the capacity of legislators and governments to offer business leaders goodies, so to speak, the more incentive there is for them to start looking back at the people that they should be serving, who of course are consumers. What’s needed in policy terms is a restoration of consumer sovereignty. Consumer sovereignty. This was Adam Smith’s key point when he was critiquing the mercantile system of his time, which operates very, very much like a sort of cronyist set of economic arrangements. Adam Smith said that the purpose of the economy is consumption, which means you have to satisfy consumers. Because it can’t be production. You don’t consume in order to produce; you produce in order to consume. And when you make production itself the end of the economic exercise, then you end up with lots of inefficiencies. You have businesses that operate because they’ve just operated this way for a long time, and they have friends in government who help them and protect them, et cetera. That’s a very negative situation to be in. So we desperately need to restore consumer sovereignty, and we do that by reducing the size and scope of government and regulations, so that you shift the incentives of businesses back to satisfying consumer wants and needs. But you’re pointing to something beyond policy, though. You are talking about really the normative case for these things, and why we should care about markets and present markets as being much more than just the most efficient economic system. There’s all sorts of things we can do in that regard. We can talk about the different types of freedoms that commercial liberty gives us, the ways in which a market economy allows people to use their creativity in particular ways that serve other people rather than those who happen to be well connected, et cetera. But certainly in the case of the United States, I think free marketers really need to show that the case for the market, it’s about efficiency, it’s about effectiveness, but it’s also because it’s good for the United States. It’s good for 330 million Americans. It’s good not just because it’s economically good, it’s also part of who we are as a people. And that’s one of the things I’ve tried to do in the book is to show just how deeply woven into American sense of at least the founding and the American experiment in ordered liberty, just how deeply connected that is to the type of economic system that we have in the United States, which is very different in many respects from similar manifestations of capitalism in the rest of the world. That’s the message I keep hammering away at to my fellow free marketers. If we don’t change the narrative, if we don’t make it very clear to Americans that the free market is not about this sort of opaque, no borders, a borderless world utopia, everyone trades freely, endlessly. It’s not about that. Trade is wonderful. Free trade is good, domestically and internationally. But if you are interested in winning hearts and minds, you’ve got to think about how you argue these things. My hope is that this book will help a lot of free marketers to understand how we can do this better.

Brian Smith:

I wanted to finish up by pointing directly to this. You conclude, as you say, by pointing toward this new way of thinking about things, but it’s actually an old one, as you point out in the book. Now, “A lot hinges,” you say, “on framing our rhetoric around convincing people that America needs to be understood as a commercial republic.” Can you expand just a little bit more on this point? Why is it important that we understand ourselves in this way? What are a couple of the key touchstones that ought to animate the way we talk? And by we here, I mean journalists, educators, people who are engaged in forming citizens. What are some of the key touchpoints that would do this?

Samuel Gregg:

Well, there’s a lot. So first of all, it’s very important, I think, if you go back and you read key founders, key documents that they wrote, speeches that they gave, it’s very clear that most of them thought that America’s future lay as a commercial republic. Now, there was a debate. We should remember that.

Brian Smith:

Absolutely.

Samuel Gregg:

There was debate in the founding about, let’s call it, the future political economy of the United States. There were people, Thomas Jefferson is maybe the most well-known, who wanted to see an America in which the economy was essentially focused around agriculture, small farms, sort of yeomen farmers, et cetera. That’s sort of Jefferson’s view, because he saw this as reminiscent of classical Greece and classical Rome. He was worried that commerce could be corrupted. But then there are lots of other American founders, and you find this particularly in The Federalist. This is what I found particularly interesting. If you go through The Federalist Papers, the vision that emerges is of America as a commercial republic. By republic they mean certain forms of government, self-government of individuals, self-government of the nation. But they also had virtues in mind, that there were certain virtues that were very important for being a good person, obviously, but were also beneficial in terms of how one went about acting economically. So America is a republic of a particular type, and the adjective commercial that informs that republic tells us a great deal about what people care about, what they do, how they preoccupy themselves, what they think is important, et cetera. A commercial republic is very different from an agricultural type of polity. It’s very different from a mercantilist type of political economy. It’s certainly very different from the type of economic systems that were very prevalent in continental Europe and south of the border, so to speak, that were very prevalent throughout the world at that particular point in time. A commercial republic is one in which people are entrepreneurial, in which competition is everywhere, and people are trading everywhere. And here’s the interesting thing about this. It turns out that commercial republics are not sort of enfeebled by their involvement and immersion with commerce. The argument of many founders, including George Washington in his farewell address, which is where I think you see this vision of a commercial republic particularly well spelled out, for them, commerce was a source of strength for the republic. It bound the people together. It also caused them to look outwards, to look for opportunities, for trading opportunities, for engagement with other nations on the basis of trade. They were very conscious that an economically strong and powerful country would be very hard to take down in geopolitical terms. And that, it turned out of course, to be true. I think one of the reasons why the United States played such an important role in winning World War I and World War II was just the sheer strength of its economy. So this is a very different way of talking about political economy, this idea of a commercial republic. But it’s also important because it chimes with the vision that emerged from the founding of the type of political economy that America was going to have. That matters, because in America, what gives something legitimacy is really how much it can be traced back to the ideals and texts that we associate with the founding. The scholar who I think is very good on this subject is Professor Gordon Wood, a very well-established American historian. Not a conservative; more or less, I’d say, a sort of modern liberal in the way that he looks into the world. But he makes it very clear that the founding contains the ideas and texts that give things legitimacy in America. That’s why things like socialist America or American socialism ring very strangely to us, because it just doesn’t fit the history of the country as it unfolded after the period of founding. The idea of a commercial republic is, I think, a very powerful way for those of us who think that free markets are the most optimal economic set of arrangements to frame the narrative of what we are about. It’s a very attractive one, because it takes good economics seriously, but understands the importance of rooting these things politically and culturally in who we are as a people. Because Americans don’t take their identity from their skin color or from myths that go back hundreds of years. We take our identity from the founding documents. This is one of the things that Gordon Wood talks about all the time. That’s where we find the source of our identity. And in an age in which identity is driving politics so strongly, in many respects, those of us who believe in markets have no choice but to think about how we link our belief in markets and limited government with who Americans are as a people.

Brian Smith:

Well, and I think that’s a really excellent point on which we can conclude. Thank you, Sam, for joining me on the show. You can pick up his Next American Economy in bookstores anywhere.

Samuel Gregg:

And Amazon.

Brian Smith:

And Amazon. So, thank you for coming.

Samuel Gregg:

Thanks, Brian. Always good to chat with you.

Reading the Hebrew Bible Oct 18, 2022

Law & Liberty‘s editor Brian A. Smith welcomes philosopher and pastor James Bruce to the podcast to discuss Robert Alter’s magisterial translation of the Hebrew Bible and Bruce’s research on Christian faith, justice, and equality.

Brian Smith:

Hello and welcome to Liberty Law Talk. My name is Brian Smith, the editor of Law & Liberty. With me today is my friend Jay Bruce. He is a professor of philosophy at John Brown University, where he directs the University Center for Faith and Flourishing. He is also associate pastor of Covenant Church in Fayetteville, Arkansas, and the author of Rights in the Law, an exploration of the thought of Francis Turretin. He’s currently working on a second book on the links between Christianity, justice, and equality, which we’ll talk about a bit later. Jay, thanks for joining us.

James Bruce:

Thank you, Brian. Longtime listener, first-time caller.

Brian Smith:

Jay’s most recent piece for us, “The Godless Bible,” is an exploration of Robert Alter’s complete translation of the Hebrew Bible. Jay spent a long time on this piece for us, and this led me to wonder about his mental state. Many times during the project, he tells me he took about 20,000 words of notes, among other things. It also made me think about Alter’s general approach. People talk a lot about translation styles, literal versus more poetic and the like. Jay, how would you describe Alter’s approach to translating the Bible? Does he have a well-developed philosophy regarding biblical translation?

James Bruce:

In a phrase, it’s very good, commendable and, I think, ultimately, extremely persuasive. He wants the translation to sound like the lofty Hebrew prose and poetry it is. In each of the volumes, it’s three volumes, and in each volume, he actually recapitulates the themes of his translation philosophy. A major handle for me, in terms of understanding Alter, is that, to make a translation overly accessible, is actually to dumb it down and to step away from the text as it was written. For example, word choice. Rare words in Hebrew get rare English words in his translation. “Song of Songs,” chapter three, verse nine says, in the Alter translation, “A palanquin, did King Solomon make, from Lebanon wood.” I, of course, being so learned, had to look up. I had no idea what a palanquin was. Hopefully, his commentary does have the definition that a palanquin is what rabbinic literature understood the Hebrew word to mean. He says, “Or, perhaps less grandly, a sedan chair.” The point being that, if you try to make it too accessible, you actually don’t arrest people with the technical vocabulary that’s being used. We want an exalted style, it’s not Time magazine. Also, as I think you mentioned, it’s literal. This fits nicely with his desire to make the translation style be lofty.

The word-for-word literal translation actually requires something of a reader. The Hebrew word for seed is often translated as a seed like you throw on the ground, or even descendants, or it can also mean semen. What Alter does though is he always keeps it seed, trusting that the reader has the requisite knowledge and expertise in order to discern the word’s use in its different context, just like in the Hebrew. I also can’t help but think that this makes the scriptures loftier, as they should be treated. That there’s a respect, a curiosity that interests us when we confront things that we don’t know. One last example on the word choice. In Ruth chapter four, Boaz has to confer with Ruth’s kinsman redeemer, who chooses not to redeem her. Of course, he’s a deplorable character. I love how Alter playfully translates Ruth chapter four, verse one, as, “Turn aside. Sit down here, so and so.” Translating the Hebrew that way to make you say, “This guy is not even worthy of recognition in the text.” He’s also very sensitive to syntax and in the way that the Hebrew is playful. In Job, he is just a master of artful translation. Job chapter eight, one of Job’s friends says, “For we are but yesterday unknowing, for our days are a shadow on Earth.” In the same passage, he’s deploring people who aren’t trusting in the Lord. He said that, “Whose faith is mere cobweb, a spider’s house his trust.”

He is really sensitive to the rhythm and the internal rhyming structure of the Hebrew. His sensitivity to dialogue, Brian, absolutely is just a work of genius. Even when he’s commenting on various passages, he’s so careful to help you realize this is what you’d expect with Hebrew, this is what you get, and you’re supposed to feel the difference. He repeatedly says, throughout the Hebrew Bible, the first phrase or phrases that someone speaks is supposed to cause you to anticipate who that person is. It frames the person in a way I don’t think it does for me as an English reader. It means that, when he’s commenting on 2 Samuel, Chapter 11, when Bathsheba says to David, “I am pregnant,” Alter writes, “Astonishingly, these are the only words that Bathsheba speaks in this story.” Her big statement is, “I am pregnant.” Really arresting. I could keep on going, but that’s a flavor, I hope, for your audience, of just how magisterial and sensitive Alter is as a translator.

Brian Smith:

It sounds like he’s almost created the feeling one has when one enters a truly majestic piece of religious architecture. Your eyes are cast up to the Most High as you enter a cathedral or a really magnificent church. It sounds like something like that has been accomplished in this translation.

James Bruce:

That’s right. I can say that he goes for extremes, that when the language is lofty, it really is the cathedral. In Job, when Job’s adversary has a second dialogue with God, whereas before he talks about, “Hey, the Lord says, ‘Have you seen my servant Job? Et cetera, et cetera,'” in the second dialogue, the adversary picks up the pace and just says, “Skin for skin.” Alter is really good at the lofty, but he can also do the pungent as well, so it’s really impressive.

Brian Smith:

It’s really interesting. What did you find least compelling about this translation though?

James Bruce:

I do mention it in my review, the published review, that I think he’s right to translate the Tetragrammaton as LORD, in all capitals. Then, having made that move, he wants to make the reader feel the antiquity of the text, and so he says things like, “For hand upon Yah’s throne,” or “El, the God Lord.” I think that Yah, God, would abide. I don’t think that, when I said I’ll assume that the speaker’s intoxicated in my review, I was actually thinking, and I’m not trying to be blasphemous, but El Yah, sounds a lot like a cockney person saying, “Hell, yes.” His defense is that he wants to say, “I’m getting the antiquity of the text. I’m exposing the strangeness of it.” Having already made the decision not to try to transliterate the Tetragrammaton, and just keep it as Lord, I think that he shouldn’t have done that. That was clunky. Then, of course, I have my whole ABJ, anybody but Jesus, shtick. Which somebody, and probably it’s my fault if I didn’t make this efficiently clear, but I didn’t expect his translation to be Christian.

What struck me about the translation, Brian, was the fact that there were passages like Ezekiel chapter two, verse one, where the text says, “Son of man, stand on your feet and I shall speak with you.” Alter translates it, “Man, stand on your feet.” He says that he avoids the translation, because the term son of man has Christological Jesus connotations. I actually think that he should have stuck to his guns and his methodology and done word for word, trusted the reader. From my perspective, he should have said, “I’m going to trust the reader to come to his or her own conclusions about the text as it stands, as opposed to glossing over that.” There is one instance where… I’ll finish here. I don’t mean to ramble on, but I do it well. There are instances where, very few, where he just, I think, contradicts himself. Perhaps for polemical purposes, but I wouldn’t want to impune a motive to him. In Ruth chapter one, when Ruth says to Naomi, “Your people is my people and your God is my God,” Alter places God in lowercase. He says that one shouldn’t imagine that Ruth has become a theological monotheist. That’s his commentary on Ruth chapter one. Then in his introduction to Ezra and Nehemiah, he actually talks about Ruth, who naturally accepts the God of her new home, capital G, God of her new home. There, I think, he just has a different polemical purpose. There are instances where you’ve got to decide if it’s volume three, page 804, and you’re a run-up to Ezra and Nehemiah, it sounds like she believes in capital G God and is a monotheist. Then let that reflect in Ruth chapter one, or vice versa.

Brian Smith:

Is this just a confusion that comes from what you call his, at one point in the review, the embrace of the God of Baruch Spinoza?

James Bruce:

Yeah. It could be. I’d hate to have me read me for consistency. I think it would be a horrible experience. Multi-decade life adventure, this grand achievement. I, of course, am consuming it all at once. Well, over three years. Not all at once, but over three years. I think that there could be instances of getting to a new book and looking at Ezra and Nehemiah and having Ruth in your rearview mirror. I do think that it was most helpful to me to understand him as thinking that the water could ripple with spirituality, but not the God of Abraham, Isaac, and Jacob.

Brian Smith:

There’s also this sense that, I think, is coming through with what you’re saying, and certainly, what you wrote in the review, that Alter seems to approach each individual book of the Hebrew Bible as a separate text, which is quite different, I think, than both any rabbinical commentators and the way, of course, Christians would undertake a reading of this.

James Bruce:

Yes. That actually exactly correct. It almost became comical. Because, if the author or authors leaned in a Spinozistic direction, then Alter’s heart strangely warmed to the text. I knew that the Job poet was just going to be a genius, before I even began reading anything that he wrote about Job. Then there are other books that, like Ezekiel. He hates Ezekiel. The animus is on the page. I do think that’s an issue. Yet, there are times when Alter is incredibly sensitive, even though I don’t think that he would be sympathetic. He’s nevertheless sensitive. It took me so long to review the books, that my title ended up being different. My initial working title, I don’t think I’ve told you this, Brian, was “Reading the Bible in the Time of the Coronavirus.” Because, Alter offers this comment on a passage in Leviticus. I think I teared up, because he said, “This passage, it’s hard to understand what exactly is going on, but I think that this is… It’s, ‘Cover his mustache,’ or something.” He says, “I think that people are draping cloths and creating, basically, these face masks.” He’s so sensitive. I got a little teary-eyed. Because, of course, we’ve been in face masks forever. Just the beauty of it, that some things don’t change. Some guy has got a crazy cough, don’t let him cough on people. There were definite instances. Then also Proverbs, which he doesn’t particularly like. He’s really good at translating the Proverbs, so I have to give him a lot of credit there.

Brian Smith:

Tell me more about this he doesn’t like the Proverbs bit, because this is interesting. In that, I feel like, if you ask a random person, what is my go-to passage when I need to grapple with human concerns, a lot of people, Christian and Jew, are going to open up to Proverbs. What is his animus there?

James Bruce:

This is too glib, but what’s comforting to many people is exacerbating to Alter. What’s comforting to many people is the message of do good and the Lord will bless you. Times are tough, but soldier on and trust in the Lord. Lean not on your own understanding. In all your ways acknowledge Him, and He will guide your path. He’ll make your path straight. This is very comforting to people. I think, for Alter, it’s cheap, moral platitudes that gloss over the harsh realities of life. For that reason, so I think the very reason why it’s comforting to many is to him disingenuous.

Brian Smith:

That’s a nice segue though into… Let me stop you, because I think this will lead well into what I definitely wanted to bring us to talk about. Which is, you mentioned Proverbs 29:2, “When the righteous are many, a people rejoices, but when the wicked man rules, a people groans.” You say that he ignores this passage, that he thinks it simply platitudinous. As you mentioned, this was a really important passage for the American founders. You mentioned that Dreisbach has an entire chapter in his book on this. Is it just another case of this is a platitudinous proverb, or does he have some additional explanation of that point?

James Bruce:

Not really. He just said, “This proverb, like the next one and several others in this chapter, is no more than a formulation and verse of a platitude.” I think that Dreisbach, in Reading the Bible With the Founding Fathers, he devotes a whole chapter to it. I think that people need to be reminded that there’s a character of a nation that can bring happiness. That individual liberty and individual virtue brought together in community can cause a people to flourish. Oliver O’Donovan talks about Augustine’s redefinition of a Republic, from the Ciceronian definition, that Augustine and O’Donovan’s words says that a Res Publica, a Republic, is defined by their common objects of love. I think Proverbs 29:2 says, “If your common objects are love of love, are the good, the true and the beautiful, then life is going to be, in the midst of all sorts of hardships, the people will rejoice.” It also is an important caveat to that, which is that a wicked man can really ruin a nation. That wickedness can… Just a handful of wicked people. I think that on the cusp of the American Revolution, with the founding fathers thinking about, in their mind, being delivered from a tyrant, that they were groaning under the tyrant. Then also, at the same time, the people don’t get off the hook by repelling the wicked man ruling over them. They have to do the hard work of living a righteous and holy life, so that there can be true flourishing for the community.

Brian Smith:

This makes me wonder if this is partly a product of Alter’s treating each individual text completely separately. Because, if you think about, God, make us other people, give us kings, versus judges, who are often likened to Republican magistrates, there’s a lesson there for why a passage like this one from Proverbs is so important. I’m a little surprised at incongruousness of these two things.

James Bruce:

Yeah. Alter has the best, let’s see if I can quote it verbatim, the ad hoc military leader is his definition of a judge. I think that’s the best definition of a judge that I can come up with. Yeah. I think that in for Samuel get this concern about kings and that they’re going to do all these horrible things. What we see is, they do all these horrible things. The people… I just like it, because Proverbs 29:2, you’ve got somebody to blame the wicked man, but that doesn’t get you off the hook for being unhappy.

Brian Smith:

Or having a lack of virtue.

James Bruce:

Yeah, exactly. No, that’s right. Again, I just to emphasize that two quick points. Number one, you’re right, that he is going to see Proverbs as this collection of moralizing things will work out sentences, over and against what, I think, he would say is the really interesting stuff of Job and Koheleth, which is Ecclesiastes, and that sort of thing. Then number two, just to emphasize, again, that though he doesn’t seem to have a lot of emotional or mental energy for the substance of the Proverbs, he’s a masterful translator of Proverbs. Because, he really, again, to go back to the first question about translation style, he wants to get the pithiness of the Hebrew. It’s beautiful to read.

Brian Smith:

It’s such a fascinating dichotomy though. I think you’ve partially answered this. I want to go to the line that you wrote about the passage from Proverbs. You say, “The single verse may easily contain a cure to the contagion that is contemporary American political life.” I wanted you to just elaborate more on that, because it’s left hanging as a piece of food for thought in the essay. It strikes me that there is a political teaching here. I just want to hear it elaborated.

James Bruce:

Sure. Everybody thinks that everybody else is the problem. Their little group, their little tribe, they’re the true Americans, Brian. Everybody else is just, they’re the enemy of the people. When the wicked man rules, a people groans. If your wicked man is Biden, or if your wicked man is Trump, or if your wicked man is somebody else, your governor, and if your wicked man is a woman, well, sure, the people groan. That doesn’t give you the road ahead. The road ahead has to be when the many are righteous. I think that we need to do a lot more critical self-examination of the people in our camp. It is incredibly difficult, because I think that people are always testing whether or not you’re part of the tribe, it is incredibly difficult to create any kind of room for self-reflection. We need to be courageous. We need to be willing to say, “No, of course that person aligns with me politically, but I don’t like what she said,” or, “That’s not how we should… I don’t like what he said.” Then work on personal virtue. People are rewarded for all sorts of wickedness. To recognize that this has not been a new phenomenon, it is something that every generation must fight against.

Brian Smith:

That’s good. I suspect it has something to do with your book project. You’ve never actually told me very much about this, so I would like to hear more about this forthcoming book of yours. What’s your current thinking about its relation to our present political disasters?

James Bruce:

Thank you for asking me about it. I really appreciate it. At Casa Bruce, I would joke about my never-ending Hebrew Bible book review. I also joke about my never-ending book project. It was conceived as a University Press book. Richard, your predecessor, he actually encouraged me, “No, this is a book that’s worth reading.” My hope is that… I’ve been going through all these different drafts. My hope is that eventually, I’ll get a serviceable draft that I can shop for a literary agent and try to get a big publisher. If you work for a big publisher listening to this contact, please feel free to reach out. Basically, the thesis of the book is that there’s certain understandings of the relationship between justice and equality that undermine the Christian faith.

People adopt an understanding of justice, and its relationship to equality, without realizing how it could affect their Christian faith, until really it’s too late. I think that the parallel could work with Judaism. I’m too ignorant of Islam to comment on whether or not it would work with Islam. I stick to Christianity, which I am a Christian, but also it’s an important religion, especially in American political life. The example that I give, which the most, I think, straightforward is, if you think that justice always requires equality, then you have to give up on hell. Because, it’s strict to quality of outcome, you have to give up on hell. Then I like to joke that, if everybody goes to hell, why go to church? There really is a big framing question. I try to handle three pairs of ideas and work through those. The biggest obstacle to, and I think I’ve turned a corner, of asking questions like, “What’s wrong with the world?”

My thought is that people choose either nature or choice to describe the wrongness of something. It’s a violation of nature or I broke my agreement. Then how does God respond to what’s wrong with the world? If I think that sin is related to, is not connected to nature, the nature of the thing that God has made, i.e. me as a person, but is instead connected to what I’m choosing, a violation of choice, then I’m going to see sin not as law-breaking, as is consistent with the Christian tradition, but instead as some kind of brokenness. How does God respond to that choice? With healing or with judgment. I try to work the reader through. Basically, somebody pointed this out to me a couple months ago, that it’s a hundredth anniversary, I think, next year, of J. Gresham Machen’s Christianity and Liberalism.

In some sense, what I’m trying to do is an updated… The Machen book is magisterial. I love it. Perhaps more technical. I’m trying to make it really accessible. Because, one of the things that I do is I work with the philosophers and all their different theories, and then show how it permeates to all the different theologians. I do have some kind of smoking guns where, well, everybody has to have an equal opportunity for salvation, because God is just. It would violate distributive justice if God didn’t give everybody an equal opportunity for salvation. This is basically John Rawls smooshed into New Testament language. That would be an example of where you start believing things that aren’t in the Bible, but they’re consonant with your political beliefs.

Brian Smith:

That reminds me a bit of the end of The Screwtape Letters. The addition I have has something called “Screwtape Proposes a Toast,” where Lewis has his character, the Devil, Screwtape, talk about how equality has been this great Soporific elixir of modern man and corrupted their thinking in many different areas, but particularly with respect to their faith.

James Bruce:

Your audience will know, if my book ever comes out, that when I reference Screwtape, if I don’t have a little footnote saying that I owe this to you, then shame on me, because that’s a great quote.

Brian Smith:

It is. I have loved that book for a long time. Thank you for joining me on the podcast.

James Bruce:

It was my pleasure, Brian.

Brian Smith:

Thank you all for listening to Liberty Law Talk, which is a production of Law and Liberty at Liberty and Liberty Fund. You can visit us at lawliberty.org and libertyfund.org. Thank you. Have a good day. Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts. Please visit our journal at lawliberty.org.

Aquinas's Common Good Sep 16, 2022

Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening.

James M. Patterson

Hello and welcome to Liberty Law Talk, a podcast presented by Law & Liberty and supported by The Liberty Fund. My name is James M. Patterson, and I’m an associate professor and chair of the politics department at Ave Maria University, a research fellow at The Center for Religion Culture and Democracy, President of the Ciceronian Society, and faculty affiliate of The Jack Miller Center. Today, our guest is William McCormick. He is a contributing editor at America Magazine, a visiting assistant professor at St. Louis University in the departments of political science and philosophy.

He is a Jesuit scholastic or seminarian of the Central and Southern Province of the United States. He studied politics at Chicago and Texas, and has published in History of Political Thought, The European Journal of Political Theory, and the American Journal of Political Science. We will be discussing his recently published book on Catholic University of America Press, The Christian Structure of Politics: On the De Regno of Thomas Aquinas. Bill, welcome to Liberty Law Talk.

William McCormick

Thank you so much for having me. I’m looking forward to this conversation.

James M. Patterson

Outstanding. Well, you know this is quite an impressive book. I was very fortunate to have read it, and I want to start off by asking you to tell us a little bit about who Thomas Aquinas was. From what I remember, he was described as corpulent, but there may have been a few other things about him that may be worth discussing besides the polite way of saying that he maybe had a little too much cheesecake.

William McCormick

I certainly hope so, or else my book wouldn’t have much to offer. Thomas Aquinas was a 13th Century Italian priest and theologian and Dominican, and he was one of the greatest theological lights of his time. And for centuries thereafter, he was regarded as an important name and influence in theology and philosophy in the Catholic church. But certainly, often more in spirit than letter. Often he was invoked as an authority and not studied very seriously.

So, the 19th and 20th, and now 21st Century, it’s been a really great pleasure to see a renewal of interest in his work, and especially the actual texts of his work as opposed to through the manuals and commentaries. Lot of wonderful commentaries written about him, a lot of wonderful manuals written about him, but to get back to the primary sources, this has been, yeah, just one of the fantastic intellectual achievements of Catholicism since the mid 19th Century, and Aquinas still has a lot to teach us today.

James M. Patterson

So, one of the interpretive devices you bring to thinking about Aquinas is the Augustinian, the Aristotelian and the Ciceronian. And I really like these three, but explain what they have to do in particular with De Regno, which is a bit of a curious work in Aquinas’ repertoire.

William McCormick

Well, I’m in the presence of someone who knows a great deal more about Cicero than do I, so I tread lightly, but I think one of the central puzzles of political philosophy, and one certainly to which Catholics have attended carefully is what does it mean for the human person to be naturally political? And in what sense does political community fulfill critical ends of the human person, in what way are human beings made whole, excellent, good, through political community? And some of the greatest thinkers in politics have addressed themselves to that question in one way or another.

And of course, we, I think, probably most familiar with the idea from Aristotle that human beings are naturally political, and that to be most fully human, they need to live in human community. And that’s how you develop the virtues, the different facets of human excellence that make us so good. And that Aristotelian idea is indeed in, I was going to say in my own book, it’s indeed in Aquinas’ texts, more importantly.

And I think that from a Christian perspective, the challenge, of course, is that… or, one challenge, is that because of the fall and the tendency of human beings to sin, it sometimes can seem that actually political community exists more as a corrective to fallen human nature. It might be even a punishment for fallen human nature, and that’s one interpretation often offered of the great thinker, theologian, and bishop Saint Augustine of Hippo that he was proposing politics as primarily a remedy against political community, primarily as a corrective to sin.

It’s hard to pin him down on that, and I’m not so inclined to think that he’s so… Augustine was an Augustinian, but it’s certainly there. It’s certainly there to be had, and there’s no question. And Aristotle recognizes this, too, that political community often has to restrain the wicked, as you might say. That there are people who are vicious, and many people, whether they are generally good or not who could do bad things. And political community has to restrain those kinds of crimes.

Cicero has an ambiguous role in this conversation, and it’s in the work of the great medieval historian of political thought, Cary Nederman, that we really see Cicero come to play. In De Regno, he suggests that Cicero is a via media between Aristotle and Augustine, and there are indeed places in Aquinas’ work where you might think yeah, I think that’s true. I think it’s true that there’s something Ciceronian going on in this work.

And it matters for a number of reasons, but the first one is that some people get frustrated with the political thought of medieval and ancient thinkers because modern thinkers might think that this political thought is just too metaphysical, that it just presupposes that these structures and institutions just sprout out of human nature. But all of these thinkers know that politics is very hard work, and it’s not magic, and indeed the attainment of virtue is an act of perseverance for a person and for a community day in and day out.

And part of what Cicero is emphasizing, or what you might think he’s emphasizing for Aquinas, is that yes human beings are naturally political and authority is really important. That the development of healthy forms of authority in a community are an achievement. They’re not simply something that you can take for granted. There’s a lot more I could say about that, but I think I’ve said quite a bit already, so…

James M. Patterson

So, one thing that’s part of this tripartite interpretive device, from what I understand you’re saying is that the readings of Augustine, Aristotle, and Cicero are a little schematic, right? They’re not quite fair to the authors themselves, but useful for organizing our understanding of what Aquinas is doing.

And also, one of the things that is part of your reading of De Regno is that only one of these figures is actually a Christian, and this corresponds to the fact that much of the political regime that Aquinas talks about is rooted in our understanding of nature, and not necessarily of grace or revelation. But, we’ll leave that to the side just for a second, because one of the things I think people overlook about De Regno is that it is not like a lot of other things that Aquinas writes.

And this has an impact on the way Aquinas writes this book, that I think people tend to misunderstand. For example, Aquinas seems to be very pro-monarchy in De Regno. Was he a monarchist, and if so, what do we make of what he has to say about the mixed regime being the best regime in The Summa?

William McCormick

Those are fundamental questions. Because Aquinas is writing for a royal audience, we expect him to have positive things to say about monarchy. Not in the sense that he’s committing flattery or lying, but in the sense that I think he’s going to want to take seriously the advantages of the regime to which he’s responding. There’s no question that for much of human history, monarchy was the primary form of politics, the primary regime form in many places. In times and places in Christendom, monarchy was uncritically accepted in the way that many people today would uncritically accept democracy.

And that’s really important to say. I think it’s safe to say that in De Regno, as well as in The Summa that Aquinas first and foremost is going to want to affirm the legitimacy of a variety of regime forms. And this is something that you have to keep hammering home to a modern audience that actually there are many different forms of legitimate government. There might be a best one, but the best one might not always be the one that’s most practical.

As you know, as well as I do, that Aristotle and Cicero too, and Plato, in their own ways spent a lot of time asking what kind of regime forms are good for different kinds of countries and regimes? So, today we would just say, oh, democracy is the best for every country, end of story. But, you might think that given the varied fortunes of democracy today and certainly since ’45, even if you loved democracy, you might say, “Yeah, there are places where it works and places where it’s more aspirational.”

So, I think it’s fair to say, I think you can argue that Aristotle sees really good aspects to monarchy and nevertheless, the mixed regime is much more plausible and much more effective for most settings. Also, bearing in mind that I think for Aquinas, the distance between monarchy and the mixed regime is not as great as it is for us, because he’s not talking about the absolutist monarchies of the 17th and 18th centuries, which could never have existed without the… well, for one thing, without the nation-state, and without the absolutism that went with the post-reformation dispensation.

So, he’s talking about monarchies that are heavily constrained, conditioned, and formed by other social bodies, and by norms and unwritten constitutions and in some cases different ethnic and tribal groups. These are not absolutist monarchies. So, there is a distinction for him between a monarchy and the mixed regime, but it’s not as great as I think for him, as it is for us.

James M. Patterson

So, there’s a sense in which Aquinas is not really recommending a sacral kingship. You talk about towards the end of the book where that the person responsible for the political operation of a monarchy has their authority directly ordered from God, and therefore cannot be questioned by any institutions beneath that order, right? That’s not the kind of monarchy that Aquinas is contemplating?

William McCormick

No, there is no whiff of divine right monarchy here. Certainly monarchy and all political form is blessed by God and can be blessed and supported by the church, but you don’t need revelation to know what good governance looks like at its most fundamental levels. And that’s why I think why it’s so important that Aquinas has so much use for non-Christian thinkers.

Again, he’s not a Baroque Era, or Romantic Era thinker who thinks Christianity turned everything upside down. In fact, that’s why I can’t recommend enough the work of my mentor, the late great Jim Shaw, who was constantly asking, “What does Christianity have to say to politics?” And he would often put this in provocative ways like, “Read the New Testament, read the gospels. How much politics is there? How many times did Jesus call for the overthrowing of regimes?”

In some ways, you can say Christianity is a lot less obviously political than Islam and Judaism, although I’m not an expert in either of those, so I don’t claim to have much more to say about it than that. I leave that to Remi Brague and others. But I think it is fair to say that yeah, at the very least I’ll just say there’s no divine right monarchy here.

James M. Patterson

Yeah, I think that’s right.

William McCormick

Stop where I started.

James M. Patterson

Yeah. That’s right. So, another thing that is an odd contradiction in De Regno is that he’s not a fan of tyrannicide in De Regno, but in the earlier, very young Aquinas and the Commentary on the Sentences seems to favor it. And we’ve already gotten a hint of why you would want not to endorse tyrannicide given that De Regno is written for a king.

You don’t necessarily want to sign his death warrant when writing him something. But then again, the reason why that’s interesting is because as you really stress in the book, Aquinas is very interested in describing tyranny. Why on earth would you even talk about that to a king?

William McCormick

It is a really surprising topic to bring up, as you say. And again, it’s another place where genre is so important. This isn’t a treatise. It is a letter written to a king, a specula principum, A Mirror of Princes. And so, to bring up such a delicate issue to a royal reader would seem to be… well, anyway, surprising. It’s incredible too, that Aquinas distinguishes between mild and excessive tyranny in the work, and he suggests that mild tyranny is not altogether uncommon and it’s reformable.

So, apparently taking from Aristotle’s discussion of politics, in the Politics, he says one of the ways to preserve a tyranny is actually to convert it into a just regime, is to divert it back to the proper ends of politics. And I think part of the emphasis, there’s so many reasons why he brings up tyranny, but I think part of what he wants to emphasize throughout this work is something that’s pretty boring, that would never make any newspaper headlines, would never get you a journal article, and that’s that politics is really hard work.

It is very hard work, and the day in and the day out are far less attractive than the glory, the riches, the Twitter fandom of politics today, or 800 years ago. But that’s what he’s asking the king to turn his attention to, the daily work of politics. And so, there’s a way in which Aquinas wants to comfort the king to say it’s very difficult, and you will fail frequently, and he wants to confront arrogant, proud political elites with their frailty and their limitations. And he wants to do so, I think, in careful ways, but I think he also needs to make that clear.

There’s also a really fun implication of all of this, which is that if politics is really hard work, then in stagecraft is a difficult task to which kings can only barely pretend to have any competence in, then how much less can the king claim power over the church? How much more ridiculous is the notion of civil religion?

And we see later in De Regno that that’s exactly where Aquinas takes that line of thought. But yeah, if politics is really hard work, and I don’t think you can say that enough, because in most times and most places, I do think leaders rather avoid leading and would rather… well, whatever their generation’s equivalent to Twitter is, that’s what they would want to do.

James M. Patterson

Joust, I don’t know.

William McCormick

Well, that’s… yeah. Games, bread, and circuses. That, yeah.

James M. Patterson

Yeah. So, what is the role of the common good here? That seems to be very vital to the distinction between a monarchy or a good government by the one, and tyranny, which is the evil government of the one. And its significance I guess can’t be overstated considering that tyranny is the worst regime. Most cases, I think you say that at some points, Aquinas maybe contemplates oligarchy might, but we’ll wait for that answer, I guess. What is the role of the common good here?

William McCormick

Well, the common good is everything. I mean, the common good obviously as you know probably better than I do, is a multivalent term, and certainly what Aquinas is trying to point to in part of the common good is that the common good just is the actualization of the being, the perfection of the citizens in their harmony, in their proper orientation. And the common good isn’t just a set of conditions that allows each person to flourish in his or her own ways. It’s not just an extrinsic good yeah, that the community pursues, but the common good really does mean that human beings can be properly human.

And that has maybe a paradoxical or a counterintuitive implication, which is that politics really needs to know its limitations, and politicians need to know that they are not God, and that they are not churchmen for that matter. Precisely because if politics is going to serve the common good, then it has a negative task of not offering a totalizing vision of humanity, of the good of the human person that stamps out those legitimate ends.

And this is where you get into all kinds of questions about whether Aquinas was a Whig, or was he some kind of liberal, and obviously those are difficult questions, because there’s so much anachronism and baggage in those conversations.

James M. Patterson

Absolutely.

William McCormick

But there’s no doubt that Aquinas is in favor of a limited government or constitutionalism in the broad sense of those terms. Obviously, again, those are anachronistic, but the government is directed and limited and formed according to him by the common good of the human community. So, it’s the most important thing and the least important thing, because you have to flesh out what that means. And again, that’s where he’s going to want to say what are the virtues, the concrete virtues, that a regime is cultivating in its persons, in its citizens?

James M. Patterson

One way to get at the limit there is in this distinction that you set up earlier in the book between the Liber and the Servus. I was taught classical pronunciation, so I never know how to do the church Latin pronunciations.

The idea of there being people who were free in some sense, and those people who are servants or slaves of some variety, in which case a person who is free somehow has a superior place in society in part because they’re more capable of securing for themselves a good that is not just for themselves, but most especially the common good. So, is that right reading of that distinction, or how would you rephrase that, or what do you make of that use in terms of describing the common good in Aquinas?

William McCormick

Oh, it’s very good and it’s very important. I think that today, of course, we primarily think of freedom in terms of a negative freedom, a freedom from. And that’s very important. There are a lot of negative factors, actors, in the world that you want to be free from. Free from hunger, free from poverty, free from unjust domination, but of course on the other hand, there’s a notion of positive freedom, which is a freedom for, and people probably know the great Dominican Servais Pinckaers has done amazing work on this distinction.

And for Aquinas, the Liber, the human person who is free, the human person who is free is free fundamentally if he or she is able to become who he or she is meant to be. If they can really become excellent. And so, a Liber, the free person, so Liber as in Liberal or free, that’s the agent who can participate in the cultivation of his or her own good, and as you say, in the good of other persons.

And that’s another aspect that divides a lot of modern from pre-modern notions of freedom, of course, is that freedom in this rich sense of excellence, often draws you closer, into closer association with other persons. Because we are, as McIntyre would say, rational, dependent, animals. We can’t perfect ourselves by ourselves, and there’s so many reasons why that’s the case. But so the kind of autonomy or freedom that would cut us off from other people, that’s not what Aquinas is about. And the Servus… I was also taught classical Latin, by the way, so it’s an occupational hazard.

You out yourself with your Latin pronunciation. On the one hand, I think they’re important historic questions about what Aquinas thought about slavery, and what he thought about natural slavery and those debates take you back to Aristotle but also take you forward to debates today. But, I think it’s very possible to abstract these considerations and say yeah, that there are people who are, because of social circumstances, political circumstances, are not able to actualize their freedoms in the rich sense here. That they’re not in a good place, in a good position, to be free for excellence.

And I think today, we would say that’s unjust. There’s nothing natural or good about that. Again, I’m not a expert on Aquinas on slavery, but the Liber/Servus distinction is, I think, very important for getting… yeah, for drilling down to what Aquinas means by the common good and how the Liber is called to participate. And again, this is 13th Century stuff. This is not John Locke, this is not Thomas Jefferson or Isaiah Berlin. So, you’re seeing some of the wonderful medieval roots of the best, I think, of the Anglo-American tradition here.

James M. Patterson

One of the things that appears to be part of the Liber category is the king himself. And the significance for this distinction of Liber and Servus is that what makes the king a Liber in this case is that he’s actually a servant of God.

In this case, it’s not to be understood that he’s a servant of God because God ordains him directly in some kind of unique sacral description that we had before, but one of the problems you see Aquinas address, as you describe in the book, the Christian structure of politics, is that why should a king govern at all, let alone govern well? So, what is the king’s reward?

William McCormick

It’s a great question, and it’s so powerful rhetorically in the book because Aquinas is very aware, as with many great medieval and ancient philosophers, that whatever Aquinas thinks about virtue, many political leaders are not ruling so that they can become more virtuous. So, you have to do a pretty thorough-going critique-

James M. Patterson

Unlike today, right though?

William McCormick

Well, there’s that. I think that Aquinas, like Aristotle, like Cicero, like Seneca, like so many great pre-modern authors, confronts what are often taken to be the great rewards of politics. Riches, honor, glory, and the pride and vainglory and arrogance that go along with that. And so, when Aquinas poses this question of the reward of the king, it comes after he’s detailed some of the great difficulties of ruling, and so you’re expecting that there would have to be a pretty amazing reward for the king for it to be worth all of this. And it’s true.

It is the case, and not only is it not riches, honors, glory and other things that are passing, it’s something eternal. Something everlasting, the beatific vision, happiness with God. And what’s striking, of course too, is that Aquinas argues that the end, the reward of the king, is not actually different from the reward toward which the king is hopefully shepherding his people.

But just as the citizens, all human persons are called to be in union with God to contemplate God on that last day, that the king himself, that his vocation as the king is to move in that direction as well. So, it’s not something its own little path, its own little diversion from the universal call to holiness as we might say today, but it really is the end of every human person.

James M. Patterson

This is a vision of governance that differs pretty profoundly from the modern vision as you mentioned. But also, one of the problems with the modern treatment of the common good, we see this, at least in my view, with some of the more recent criticisms of liberalism, surface seen among conservative Catholics today, is that because the common good is precisely common, it’s ordered to coming prior to any private good, right?

So, the idea of civil peace would come prior to, for example, the ownership of a particular car. How is it that Aquinas avoids turning the common good into something totalitarian, right? Something that makes claims on all forms of personal liberty, thus reducing everyone to a Servus rather than a Liber?

William McCormick

I think there are people who have definitely thought about this question more than I have, and I think it’s an important question to address to Aquinas, partially because I think he’s less concerned with totalitarian political projects than we are, and certainly the 20th Century was one of the saddest centuries in modernity for this issue. This issue, obviously it’s more than just an issue. But, I think one of the constant refrains in this book, which is quite powerful, is that the king is not God.

And Aquinas is clear in this, particularly in Book Two, but in other places as well, that God creates and His part of creating, of course, is to set ends for created objects and created persons. And the king, like all humans, all he can do… and it’s a pretty significant task, but his job is within that order of created goods. He orders them, governs them towards the end that was set by God.

In other words, there is a pretty definite vision here of how God has set up creation, and the king is fundamentally unjust, and any person is fundamentally unjust if they somehow seek to direct those creatures away from their God-appointed ends. Which is very important, because there are so many totalitarian visions of politics we know that build a whole quasi-religion out of what the point of a human life is and how the community is to be ordered.

And somebody like Mussolini, of course, trying to cover the state in glory and trying to fundamentally idolatrous vision of politics. So, I think that for Aquinas, one of the main limitations on politics is precisely that the king is not God, and that to try to set himself up as God is the worst… it’s heresy, it’s blasphemy, but it’s idolatry in a really practical sense. You think of John Milton’s Satan. “Evil be my good,” that’s precisely what Aquinas says a king cannot do.

James M. Patterson

So, as you said a little earlier, and as you do a wonderful job of explaining in the book, this is a specula. This is a Mirror of Princes, and for many readers, and for many listeners to this podcast, they’ll be more familiar with another specula, and it’s unfair, because it was a subversion of the genre.

And this, of course, is Machiavelli’s The Prince. And one of my favorite parts of this book was your discussion of how Machiavelli and Aquinas differ in their treatment of a figure of great importance to both of them, and that is Moses. So, I think this ties closely to the question that we just had about the king and the common good. So, what do we see here in this discussion, and tell me more about it?

William McCormick

Moses is one of the most fascinating figures in the history of political thought, and I think a lot of people are surprised to see how often he’s invoked by Aquinas, how often he’s invoked by Spinoza in very [inaudible 00:30:00] ways.

James M. Patterson

This is true.

William McCormick

And certainly Hobbes. Thomas Hobbes has, obviously, no use for Moses even though he’s deeply envious of him in a pathological way. And Machiavelli admires Moses for the same reasons.

James M. Patterson

I want to apologize to listeners who are fond of Hobbes, but I cannot get enough Hobbes bashing in any way possible, so I am only encouraging this.

William McCormick

You’ll find no love for Hobbes in my corner. I think he is very profoundly, interestingly wrong. He’s never wrong in a yeah, in a boring way. When he is wrong, he is really importantly wrong. Anyway, we can get into that later.

James M. Patterson

Different podcast.

William McCormick

Machiavelli’s The Prince is such an engrossing text, and the treatment of Moses is incredible, because Machiavelli says, as many know, he says he’s not going to treat on Moses, because obviously Moses was a prophet and a man of God. And that really is Aquinas’ point of departure, that Moses was such a brilliant leader because in a really privileged way, he saw the ends that God had set for the Hebrew people. And indeed, there was a covenant. It wasn’t just the general ends from creation, but God had entered into a covenant with His people, and Moses faithfully shepherded them within that framework.

That sounds like a legalistic term, but Moses sought to help them be faithful to that covenant. But Moses gets a different treatment in Machiavelli, and Machiavelli is so fascinated in what he calls unarmed prophets. Probably because Machiavelli was hoping to become an unarmed prophet of a sort. For Machiavelli, Moses is so fascinating because he thinks of Moses as one of the greatest charlatans and frauds of all time. He came up with this kooky religion, and he was able to use it to control the people very effectively.

So, he wishes somebody like Cesare Borgia could have done a better job in that direction. But, you couldn’t see a greater contrast in their treatments that… and it really reflects how they understand virtue, that to be, for Aquinas, to be godly, to be virtuous, to be just, is to follow God’s commandments, is to obey his creative, or to conform yourself toward it. And it’s not a bad thing. It actually makes you more of who you’re called to be. But, for Machiavelli, as you know, virtue is a euphemism for… well, it can be many things.

But it often just means a crafty strength that can be used for what’s sometimes understood as good, and sometimes for what’s good is evil. Machiavelli thinks that distinction between good and evil matters, because appearances can be used to influence and control. But yeah, for Machiavelli, Moses really is this crafty charlatan who’s able to manipulate the masses. And it’s a really disgusting picture of Moses. It’s deeply anti-Semitic of course.

James M. Patterson

Sure.

William McCormick

Yeah. But the contract between The Prince and De Regno are fascinating. I’m glad you brought it up. I had to cut so much of that stuff out of the book, so I’m hoping to put it somewhere else someday.

James M. Patterson

Well, I would be very excited to read the… I did not know that you had to cut stuff from there. But as I was reading it, I was wanting more, so clearly I should not be editing these books. Right? Because I’d be like, “Oh, digression on Moses? Yes, please.”

William McCormick

Thank God for good editors. They save academics from themselves every single day. Every single day.

James M. Patterson

It is true. It’s true. I don’t know how they do it. So, we’re coming to a little past 30 minutes, and so we should start looking towards a bigger picture before we close, which is why De Regno? Have I been saying… you say De Regno, and I’m wondering I’m saying this… am I saying this right?

William McCormick

No, no. It’s fine. The gn in Latin is sometimes pronounced like the gn in Italian by people more in medieval studies or more ecclesiastical circles, but you’re saying it just fine.

James M. Patterson

Okay. That’s always that problem with students, right, where the students have read more than they’ve said?

William McCormick

Exactly. Right.

James M. Patterson

So they’ll start saying words incorrectly. So, let’s just go with me just being a brilliant student.

William McCormick

Please. Please. It’s a good problem to have. It’s a great problem to have.

James M. Patterson

So, why write this book in the year of our lord 2021 and 2022?

William McCormick

Well, I think the short answer is that Aquinas has a great deal to teach us, and I think that the vision of politics were sometimes handed down, that said to be from him, coming from the Treatise on Law, or the Question on Law. It’s really beautiful, it’s really important, but I think that De Regno offers a far more supple vision of politics coming from Aquinas. Certainly we live in times when all of these categories, every single major concept we discussed, they are contested. And so, some of them really should be.

I mean, the history of politics is littered with the really egregious invocations of these terms. But I think that there’s still so much to be said about the classical notions of justice, of right, of law, of the common good, and what those aren’t straight jackets that conform us to very narrow visions of politics. They actually are congruent with a very ample vision of prudence, with a very ample application across a variety of different regimes across different circumstances in which humans find themselves acting politically.

And I’ll just say this, I mean to go back to what I started with, we’re in a really strange moment in the 21st Century, and maybe we have been for much of late modernity, I don’t know. We’re suffering from a lack of confidence in our political institutions and in our norms and values, and so I’m one of those people who suggest that there’s a great deal to be learned from the past.

And if nothing else, this is an act of ressourcement, as it were. Trying to uncover some of the tradition that we don’t need to reinvent the wheel. I think everything we’re saying has already been said a couple of times, but we certainly need to be reminded of them regularly, apparently.

James M. Patterson

That’s right. At least he gives us the right questions. I happen to be pretty sympathetic to the answers, especially as you interpret them in your book The Christian Structure of Politics: On De Regno of Thomas Aquinas. There’s my reformed pronunciation. Thank you so much for this wonderful conversation, and the next time you’re going to be on here, it’s going to be on that article that’s going to come out on the Treatments of Moses. Look, that’s coming out, right? I’ll see it done.

William McCormick

Well, with this kind of encouragement, I think I have to. It’s moving to the top of the to-do list. Thank you.I appreciate that encouragement, and yeah. Thank you so much for having me. This was delightful.

James M. Patterson

Thank you so much.

Adam Smith's Jurisprudence Aug 26, 2022

Samuel Gregg:

Hello. Welcome to Liberty Law Talk. My name is Sam Gregg and I am distinguished fellow in political economy at the American Institute for Economic Research, and I’m also contributing editor at Law & Liberty. Thanks for joining us today. 260 years ago in 1762, a middle-aged professor at the University of Glasgow was delivering as part of his normal teaching load you might say a series of lectures on jurisprudence. And in that audience a number of students were busy taking notes as any good student, I suppose, does even today. One set of those notes, however, was discovered in 1895. So over 130 years later. And it had come into the hands of an Edinburgh lawyer. Now, normally discovery of this type would be neither here nor there, except for the fact that these notes were from lectures delivered by Adam Smith, the great Scottish enlightenment thinker whose Wealth of Nations was a book that literally changed the world.

That book, as well as Smith’s other writings including the book we’re going to be discussing today, Adam Smith’s lectures on jurisprudence, have all been published by Liberty Fund. And I think it’s fair to say that lectures on jurisprudence is perhaps the least known of Smith’s words that have come down to us today. So joining me to discuss lectures on jurisprudence, it’s my great pleasure to welcome to Liberty Law Talk today professor James T. Otteson. He is the John T. Ryan Jr. professor in business ethics at the Mendoza College of Business at the University of Notre Dame. He specializes in business ethics, political economy, history of economic thought, and 18th-century Moral Philosophy. Previously professor Otteson taught at Wake Forest University, Yeshiva University, Georgetown University, and the University of Alabama.

Some of his books include Adam Smith’s Marketplace of Life, 2002. Actual Ethics, 2006. Adam Smith, 2013. The End of Socialism, 2014. And The Essential Adam Smith, 2018. And his forthcoming book, Reexamining The Ethics of Wealth Distribution. He has a BA from Notre Dame and he also has a Ph.D. from the University of Chicago. He’s also, in my view, my humble opinion, perhaps one of the world’s leading Adam Smith scholars today. Today he’s joining me to discuss, as you may have guessed from his bio, Adam Smith and, more specifically, some of his writings that have received less attention—in particular Smith’s lectures on jurisprudence. Jim, welcome to the Liberty Law Talk.

James Otteson:

Thank you so much, Sam. It’s my pleasure to be with you. Thank you for having me.

Samuel Gregg:

So I thought we might begin by putting these lectures of Adam Smith in their context. So, can you tell us a little bit about how it was that Adam Smith came to be giving lectures on legal philosophy in the 1760s?

James Otteson:

I’m happy to do that and you’re quite right. The lectures on jurisprudence are not something that get discussed very much anymore. So Adam Smith was the author of two published books, only two. The first was The Theory of Moral Sentiments, which came out in 1759 in the first edition, and then the now much more famous inquiry into the nature and causes of The Wealth of Nations, which came out in 1776. So rather auspicious year. But those were the only two books that he actually published. They each went through several editions. He was born in 1723. He died in 1790. About a week before he died, he called a couple of his colleagues to his quarters. I guess he had a bit of a notion that it wouldn’t be much longer that he would be alive.

He asked them to burn his manuscripts, and so those colleagues actually burned 16 volumes of manuscripts. We can only guess what was in them, but one set of documents that was probably in those burned manuscripts was what we now have as the lectures on jurisprudence. So these lecture notes, as you mentioned, were first discovered in 1895; they were the student notes from two different years that he had given this course called lectures on jurisprudence. He was teaching jurisprudence at the University of Glasgow. He first started at the University of Glasgow in 1751 as a professor. He was only 28 years old. In 1752 after just one year, the prior professor who had been the Chair of Moral Philosophy at Glasgow passed away and so Smith became the Chair of Moral Philosophy at the University of Glasgow in 1752. He was only 29 years old if you can imagine. And he began giving, among other things, these lectures on jurisprudence and that’s what we have.

Samuel Gregg:

So tell us a little bit about how Smith saw jurisprudence fitting into the wider scheme of university education that he was engaged in teaching.

James Otteson:

Yeah. So as a Chair of Moral Philosophy, so something to note about professorships in the 18th century in Britain and in Scotland in particular, people were considered professors of one of two things. Either you are a professor of moral philosophy or you’re a professor of natural philosophy. So natural philosophy was all of the subjects that related to the natural world, the non-human natural world. So everything from astronomy to what we would now, now that it has been subsequently broken up into disciplines like geology and botany and all these other fields that study the natural world. That was under natural philosophy. And then moral philosophy, which is what Smith was, that was a field that pertained to all of the aspects of the study of human behavior. So everything we would today recognize as being in psychology, in human history, in politics, and also in moral philosophy.

And all of those were fields that Smith was teaching in. So as the Chair of Moral Philosophy in Glasgow, he was teaching a range of courses—everything from logic to natural theology to moral philosophy and then to jurisprudence, which was, at the time and what Smith considered it, he study of the laws and regulations that were required essentially for a successful society. So when Smith was giving lectures on jurisprudence what he was effectively doing is giving kind of two parts of it. One was the history of the development of human societies. So he gave his theory about why you had different kinds of governments and different kinds of laws and regulations in different humans societies. And then also he was making recommendations about, given the kinds of goals that we might have in human society, what kinds of laws, regulations, et cetera, should we have? All of that fell under the topic of jurisprudence as one part of the study of human life and human behavior.

Samuel Gregg:

So clearly jurisprudence in the way it was taught, in the way it was understood in the 18th-century, particularly in the Scottish universities at the time, it clearly embraced a lot more than would typically be put under that type of topic today. So can you tell us something about the actual structure of Smith’s lectures on jurisprudence?

James Otteson:

Yeah. So it was a year long course that typically met every single day. So you would meet once a day for nearly a full calendar year. So it was quite a bit of material. It wasn’t just a three month long course, which you would get in college today, but the structure of it started out with what the subject matter of jurisprudence was and then began working out Smith’s theory as it were of jurisprudence. So everything having to do with, according to Smith anyway and Mr. Smith’s understanding, jurisprudence started with a conception of justice. What actually is justice? What are the different conceptions of justice? Then what are, he called police or what we might call policy today? So what are the rules or regulations or laws that are appropriate to the conceptions of justice? What are the proper objects of justice? Meaning what kinds of things should justice pay attention to and therefore what should the government pay attention to?

But he also, in his course on jurisprudence, went into the area that we would now think of as more appropriate to economics or his Wealth of Nation’s book. He talked about revenue. So where did the government get its money? Where does wealth come from? So he talked about that as well. And then also, how do you protect the government and how do you protect society? So things like military and arms, et cetera. So it was quite a wide-ranging course, quite a wide ranging topic. And he went into enormous amount of detail, both historical—so, descriptive talking about how different times and different places approached these topics, and then also normative or prescriptive. What he thought we should actually have. What would be good for Scotland? What was good for Britain? What was good for Europe? What was good for even the Americas? He was talking about what was going on in the Americas at the time.

Samuel Gregg:

So, I’d like to come back a little later to talk about a few of those things that you just mentioned, in particular, some of the topics that get included under particular parts of his lectures on jurisprudence. But before we do that, I’ve got another question. I imagine that like any professor, there were things that Smith was obliged to teach if only because the people sitting in the class, many of them I suspect would’ve gone on to become practicing lawyers and practicing lawyers need to know certain things that have relatively little to do with the philosophical preferences or interests of a given lecturer. So you do something like contracts or torts or whatever it happens to be. And it’s like a sort of professional training, but that said, I imagine, just any other professor, there were particular emphasis that Smith would have brought to bear, or at least tried to bring into the discussion, during his lecturing. So I was wondering if you could tell us what some of those particular emphasis may have been.

James Otteson:

Yeah. You’re quite right about all of that. I mean, we do have one anecdote about Smith that I’ll just relate to give you a little bit of a glimpse of what seems to have been his personality. When he first started teaching at the University of Glasgow in 1751, he was asked to teach a course on logic. And one of his students, who reported many years later about what that course was like, noted that Smith began the course and spent about the first week or so of the course teaching what he was supposed to teach. And then he immediately started going off onto other subjects, which were much closer to what we might think of in the Wealth of Nations and the lectures on jurisprudence even in his logic course. Even as a young man, he was only 28 at the time, he had a bit of an independent streak, but you’re right.

The course on jurisprudence was in part intended. It was supposed to prepare people for a profession in the law. So many future attorneys would’ve been in the audience. And one of the central subjects, I mean, there are lots of things that were supposed to have been covered, but one of the things, and I think this might be a particular interest and maybe is even behind the question you’re asking, one of the things that Smith would’ve been expected to talk about was natural law. So he would’ve been expected to review Locke and other major figures in the history of, especially British natural law theory and British common law as informed by British by natural law theory. And so in fact, he did do that. And one of the things that’s interesting about it. So he talked quite a bit about Locke and others.

If we’re talking about what constitutes an injury, and there are different theories of justice, what constitutes an injury? Well you can be injured, as Smith said, as a human being, as a man, as a member of a family, as a member of a state. You can be injured in your body, in your property, in your reputation center. So he walks through these things all with this kind of background of a sort of Lockian natural law. One of the things that I think is interesting about this, though, is that if you look at the other works that Smith talked about, that wrote, The Theory of Moral Sentiments or the Wealth of Nations, almost all of that is absent. There’s virtually no talk of natural law, no talk of natural rights. So he did it, he discussed it in his lectures on jurisprudence. So he is obviously aware of the tradition, took it very seriously, but it did not come to inform much of his own theories.

Samuel Gregg:

Well that’s interesting as well because I was going to ask you about that and the way he talks about natural rights. And as you say, he does make reference to people like Locke. Although it’s not entirely clear that he accepts Locke’s own particular thesis, but like any professor, you have to teach things you don’t necessarily agree with because some of these ideas were taken very seriously by judges and lawyers at the time. But there’s two particular influences I’d like to, if indeed they are there, that I’d be interested in hearing you say more about, and that is the two H’s, David Hume and Francis Hutcheson. Do you have any sense of any particular influences of their thought upon these lectures?

Smith suggests that if 20% of the revenue of society [is] being taken by taxation, then citizens should take a long, hard look at whether that’s really benefiting them and enabling the increase of prosperity, or is it just satisfying the needs of people in government.

James Otteson:

Yes. That’s a good question. I think both of them were quite influential on Smith’s thought. And they may help explain why it is that when Smith came to develop his own theories about justice and then ultimately about what we consider economics and the Wealth of Nations, that there’s not a lot of reliance on natural law or natural law theory. I think certainly with Hutcheson and also with Hume, Smith’s takes something of an empirical approach to these questions and he develops a theory, for example, of government. When he’s talking about the origins of government, he explicitly rejects in the lectures on jurisprudence Locke’s theory of a kind of original contract.

Samuel Gregg:

A sort of state of nature.

James Otteson:

Yeah. I mean, it wasn’t only Locke who had this view, but I think here you do see the influence of Hume in particular, but Smith says, now that this is just a fiction. There really wasn’t any original contract. There was nothing like an original contract. There was no state of nature when men came together and decided what the form of government should be. It’s much more of an evolutionary process. So one thing that he gets from Hume I think is something like a developmental process as human society developed through these stages. So he offers a theory of stages of human society; You begin with hunters. Human beings are basically hunting parties where there’s no government at all, according to Smith. They eventually develop into shepherds where they have their own herds of animals. At that point, they develop something of a root. That’s the first stage of actual government according to Smith. They develop something of a rude state of monarchy. Then they develop into farming and agriculture where they have land and property. At that point they need a little bit more sophisticated government that’s going to have conceptions of justice that apply to property in particular. And I think we see some influence from Hutcheson in the importance of property.

The kind of government appropriate there Smith thinks is aristocracy. And then the fourth and final stage, according to Smith, of human, social, or societal development is what he calls democracy. This emerges when human society develops to the stage where commerce becomes the dominant economic activity of society. That’s the highest final stage. So at all of these stages, the applicable conceptions of justice and the right proper sets of laws and regulations or the proper form of government, changes according to human development as Smith argues. And that I think really is a very large influence of this kind of developmental and observational approach that shows the influence of people like Hume in particular, but also Hutcheson.

Samuel Gregg:

You mentioned the civilizational development theory. I imagine this also reflects Lord Kames as well, right, because as I understand it, his thinking about law and society in general is very shaped by this particular type of account of Hume at the development of human civilization.

James Otteson:

Yes. That’s a good observation, Sam. And I think these are elements of what came to be known as, and is sometimes called, the Scottish historical school of social science, which is we’re going to try to apply the approach that Isaac Newton had such great success with for the natural world. We’re going to try to apply that to the human world and what that means is we’re going to try to actually look at various kinds of experiments that human beings have run. And by experiments, different human societies in different times and places.

We’re going to see what kinds of principles we can see might be at work in these things, but it’s not an apriori deduction. It’s not sitting in our offices and trying to intuit or God’s will, for example, and figure out what the essential nature of human beings is. And instead we’re going we’re going to look at the world empirically and I think that is influential, you’re right, Kames. I mean, in others, we’re talking about the development of language, the development of law, the development of governments, all of this was this new way of trying to understand human society as being a process of historical development over time.

Samuel Gregg:

So I’d like to shift the discussion now to a topic which I’m sure you’ve thought a great deal about, which is lectures on jurisprudence and its relationship to the more well-known texts of Adam Smith, specifically The Theory of Moral Sentiment and his Wealth of Nations. So these lectures were, at least the notes that we have of these lectures, were recorded after the publication of The Theory of Moral Sentiments in 1759. So, do you see traces of elements of some of the thought that’s expressed in Smith’s Theory of Moral Sentiments within parts or even sections of his lectures on jurisprudence?

James Otteson:

That’s a good question. I do see a couple. In fact, I see a handful, but I’ll just mention a couple. So first of all in the conception of justice that Smith discusses and lectures on jurisprudence, he had already articulated in The Theory of Moral Sentiments. So as you mentioned, Theory of Moral Sentiments comes out a couple of years before the first report of the lectures that we get on jurisprudence. But right at the beginning of the lectures on jurisprudence, Smith talks about justice being what he calls securing people from injury. So, the kind of justice he’s interested in is protecting people against incursions on their persons, on their property, or on their voluntary contracts or voluntary promises as he said. It’s the kind of negative conception of justice. In other words, you’re acting justly as long as you refrain from imposing harm or injury onto another person. That’s exactly the conception of justice that he had articulated and quite carefully in The Theory of Moral Sentiments.

So in The Theory of Moral Sentiments, this is the development, this is the conception of justice. He says that in all societies, it’s both necessary and sufficient for human society to exist. And all of the positive moral duties of friendship and loyalty and charity, these sorts of things are what he calls the embellishments of society, but they’re not necessary for society to exist. So in the lectures on jurisprudence, he elaborates on exactly that. Why is this negative conception of justice so necessary for the existence of any kind of human society whatsoever? And how does it apply to various aspects of human society from your bodily person to your property? What kinds of property even potentially your reputation, et cetera. So that’s one way where I see a clear connection, but I will mention if you allow me just one other. So in The Theory of Moral Sentiments, Smith develops this claim about sort of the ultimate or final adjudicator of moral propriety is what he calls the impartial spectator.

So if you want to know whether you’re acting rightly or wrongly you imagine what a disinterested person who fully knows your situation, an impartial spectator he calls them, what would such a person think about what you are doing and how would such a person judge your behavior? That notion of the impartial spectator is all over in the lectures on jurisprudence. In particular on what counts as property. So it’s very interesting. I think Smith developed something of an impartial spectator theory of property. So in other words, how long do you have to be farming a particular plot of land in order for you now to have property rights in it? Smith’s answer to that is, “Well what would an impartial spectator think?”

Samuel Gregg:

Does he actually use that expression?

James Otteson:

Oh yes, he does. He does. In fact, quite repeatedly. So he connects it with what he thinks is reasonable. So he says, “What would a reasonable person think is long enough possession to now entail rights to land,” let’s say. Well the impartial spectator is the way you imagine what is reasonable. Or what’s a reasonable contract of employment? Ask yourself what an impartial spectator would think. So that’s a kind of impartial spectator theory of property, of contracts, etc. That’s all through the lectures on jurisprudence and he develops that first in The Theory of Moral Sentiments.

Samuel Gregg:

Well let’s shift to the second and of course the best known of Smith’s works, the Wealth of Nations, published, of course, in that momentous year of 1776. Now, the Wealth of Nations is published after these notes on jurisprudence were taken. And I should mention that it wasn’t very long after these notes on jurisprudence were recorded that Smith effectively retired as professor of Moral Philosophy at the University of Glasgow. So, I guess my question to you is this—In what way do we find particular ideas expressed in the lectures on jurisprudence, in what way do we find some of these ideas manifesting themselves in the Wealth of Nations?

James Otteson:

So in a handful of ways. It’s a good question. So you’re right that Smith actually retired, as you say, from being a professor at the University of Glasgow in 1764. He was the ripe old age of 41, but he left to become a personal tutor to the Duke of Buccleuch. So he did some traveling with the Duke of Buccleuch, became his personal tutor, and it wasn’t until 1776 that the Wealth of Nations was published. And remember, the lectures on jurisprudence, what we have are students notes from his lectures. So we don’t still have Smith’s own lecture notes. We have carefully compiled, in fact extraordinarily carefully compiled notes, but they are students’ notes, not Smith’s own notes. But one aspect of the lectures on jurisprudence, one aspect of the course that he taught and so therefore part of the lecture notes that we have, pertains to what Smith calls revenue. So governments at different stages of their development will have different proper activities and some of these proper activities will require revenue to execute.

So for example, once we’ve gone from say farming to commerce, Smith thinks we’re going to need to have protection against foreign aggression. We’re going to need to have protection even against internal or domestic aggression. And against foreign aggression that requires some kind of military, an army, perhaps a Navy, protecting us against domestic aggression that requires police and courts, et cetera. All of that is pertaining to property. So as human societies develop, they begin to have a much greater dependence on property and property can only serve the function it’s going to serve if it’s protected, if people are secure in their property. So they need police, courts, et cetera, domestically and militarily for foreign aggression. In both of those cases, what Smith is assuming, which will become much more evident in the Wealth of Nations, is that what we want is increasing prosperity for our society.

So we want increasingly to generate revenue that will enable us to alleviate poverty, to increase the resources—what he calls the necessaries and conveniences that are available to people in our society, including in particular the poor—and in order to enable that to happen we need a government that’s going to protect property and that means we’re going to have to think about we, meaning people who are setting policy in the government, are going to have to think about how do we get the revenue that would enable us to support police, courts, military, et cetera? So you get a lot of discussion in the lectures on jurisprudence about what are the best ways to tax? What are bad ways to tax? What are the good things to tax for? What are bad things to tax for? And he’s very sensitive to not allowing taxation policy to actually inhibit the growth and prosperity and vitality of a society.—to serve it rather than for society to serve it.

And I would just mention he, on more than one occasion in the lectures on jurisprudence, talks about the right to revolt. So he does think that onerous taxation can actually justify a right to revolt and a couple of times he says that, if taxation reaches the level of something like half of our revenue, if the government is consuming half of our revenue through taxation, then maybe we should revolt because that means that the purposes it’s serving are the government’s own services rather than the prosperity of society more generally. One place he actually suggests that not just half, but even if it’s a fifth, one fifth, so 20% of the revenue of society, if that’s being taken by taxation, then citizens should take a long, hard look at whether that’s really benefiting them and enabling the increase of prosperity, or is it just satisfying the needs of people in government?

Samuel Gregg:

It sort of reminds me of what you just said. Reminds me of what John Maynard Keynes once wrote in a letter where he said that something like 25% of income is the upper limit he thought was appropriate for the government to take by way of taxation. So we are clearly living in a very different world today by that standard. And that brings me to my next question and you’ve sort of alluded to this. When you read these lectures, what do you think they tell us about Smith’s view of the role of government in the economy? Because you look at part two of the lectures on jurisprudence, which of course is entitled of police, which goes back to something you mentioned before, the way in which this text or this series of lectures were structured. So I’m wondering what you think these lectures tell us, at least at this point of time in Smith’s life and thinking, what he thinks is the proper role of government in the economy?

James Otteson:

That’s a good question. It’s a big question. So, I think what we see here is Smith’s thinking about this probably evolving as a result of his study of the history of human experiments in government and in society. So he is astonishingly learned when it comes to human history and different experiments in human society. And if you read through the lectures on jurisprudence, you see examples drawn from numerous countries, numerous areas, and he’s not just a cursory familiarity. He’s actually done some very careful reading of law books and statutes, et cetera. So he’s very well learned, but I think what we see is his thinking about this is evolving. And what he’s beginning to think is that the proper role of government is to enable people, individuals, human beings, and groups of individuals, to improve their own lives rather than working directly to give them or improve their lives for them.

So I think what he’s beginning to do is to sort invert the classical or at least a very influential classical view about the role of say elites in society where if you think about Plato’s Republic, for example, going all the way back to Plato and the Republic, what’s the role of the intellectual elite in society? Well according to Plato, the philosopher should be kings or queens. They’re the ones who understand the good of society. They should organize society in terms of the good. In the lectures on jurisprudence what I think you see Smith seeing is that there have been so many attempts and experiments at this that so often don’t seem to work out the way we want them to that perhaps what government should do and what elites in government should do is instead lower their aims a bit. Rather than “I’m going to create the ideally good city or the ideally good state or the ideally good country,” instead maybe what we should first try to do is to create conditions in which individuals can improve their own lives. And that’s sort of lowering the sights quite a bit.

You’re no longer the philosopher king who’s going to determine the entire composition of society, but instead I think what Smith thinks is that this is something that might actually be achievable. In other words, in the real world with real human beings facing the cognitive and resource limits that we have, maybe something that’s achievable and would not be such a small achievement.

Samuel Gregg:

So we’re getting close to the end of this Liberty Law Talk podcast episode and I’d like to conclude by asking you the following sort of very generic question, but I think it would be important for our listeners to hear your thoughts about. If there’s any part of the lectures on jurisprudence that you would recommend to those people who are interested in law, politics, political economy, or even just the history of ideas, what would be the parts of the text that you would strongly recommend for our listeners?

James Otteson:

Okay. That’s a great question, Sam. So we have two students’ notes from the lectures on jurisprudence. I think I would look at the second set of notes. It’s the report dated 1766. Sometimes called lectures on jurisprudence letter B. So the second set of notes. I think those are a little bit more comprehensive and a little bit more carefully constructed, but I think really all you have to do is read the first 20 pages or so. So if you just read the part one of justice, you’re going to get quite a bit of the actual meat of Smith’s theory, including his discussion of Locke and the American founding, his rejection of the notion of an original contract.

You’re going to get some of his discussion of the stages of development of society from hunters to shepherds, farming, commerce, and the different kinds of government that he thinks is appropriate to it. And you’re even going to get, even in just the first 20 pages or so, you’re going to get a little discussion of how successful different kinds of government were in, on the one hand protecting the liberty of their subjects and on the other hand, encouraging prosperity. So I would say if you look at say the first 30 or so pages of the second report, that would be the first place I would recommend.

Samuel Gregg:

Well thank you very much, professor Otteson. I know you’re a busy man and you’ve got other things you need to do, but we’re very grateful that you’ve joined us today on Liberty Law Talk to discuss those lectures on jurisprudence, which I suspect you wish more students of Adam Smith and the Scottish enlightenment knew more about. So James Otteson, thank you very much for being with us.

James Otteson:

My pleasure. Thank you very much, Sam.

The Constitutional Pivot Jul 13, 2022

Over the last few weeks of the recently-concluded term, the Supreme Court handed down one blockbuster decision after another on issues including religious liberty, guns, the limits of the administrative state, and of course abortion. The decisions have sent shockwaves through the political system, and many are saying that this term will go down as one of the most important turning points in the history of the Court, as it shifts sharply in a more originalist direction.

John McGinnis joins Liberty Law Talk to discuss the monumental decisions in Dobbs v. Jackson Women’s Health, NY State Rifle & Pistol Association v. Bruen, Carson v. Makin, Kennedy v. Bremerton, and West Virginia v. EPA.

Rebuilding a Culture of Academic Freedom Jun 16, 2022

Richard Reinsch (00:04):

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today, we’re talking with Keith Whittington of our new organization he is the chair of, called the Academic Freedom Alliance. Keith Whittington has been on Liberty Law Talk on a number of occasions. He’s also contributed to Law & Liberty. He is the William Nelson Cromwell professor of politics at Princeton University. His scholarship record is incredibly impressive. He’s the author most recently of Repugnant Laws: Judicial Review of Acts of Congress from Founding to the Present, which won the Thomas Cooley Book Prize. He’s also the author and ties into our podcast I think, of Speak Freely: Why Universities Must Defend Free Speech, and is the author, a co-author, and editor of a number of other publications. Keith, welcome to the program.

Keith Whittington (01:05):

Thanks for having me. I appreciate it.

Richard Reinsch (01:06):

So this new organization, the Academic Freedom Alliance that you’re the chair of, tell us about it, what its work is, what it’s doing, and what sparked it?

Keith Whittington (01:16):

Yeah. So at heart, this is a faculty-led organization committed to defending academic freedom and free speech rights of faculty at American universities. Our concern over the last several years has been free speech on campus is under threat from lots of directions that affects lots of members of the campus community, including students and others. I’ve had conversations for some time now about the kinds of problems we’re seeing on college campuses, the growing dispute about whether or not free speech is actually valuable on college campuses and what the scope of it ought to be. It’s partially through that kind of concern and those conversations I wound up wanting to write the book, Speak Freely. Then, more recently, a series of conversations led to thinking about, “Well, what else could we be doing that might help advance these principles and secure them more effectively?” The opportunity rose to try to launch an organization like this.

So, it’s essentially committed to, as I said, defending academic freedom principles and doing so in part by intervening in particular disputes that arise between faculty and their employers over things that the faculty member has said. Often, professors that find themselves in the midst of these free speech controversies feel very isolated and alone and don’t really know what they ought to be doing under these circumstances. So, partially we want to emphasize to people that they’re not alone. We want to emphasize to the university administration that the faculty member is not alone, that we want to help inform people of what their rights are and help them navigate that situation, try to bring attention and public pressure when appropriate on universities to actually live up to their commitments on free speech. We want to provide legal assistance to faculty in those situations and so we have funds to provide something of a legal defense fund for individuals who find themselves in these situations. I think it’s crucial when faculty find themselves under investigation, under threat or sanctioned by their university, that they have good legal advice that can help them navigate through often a maze of internal disciplinary proceedings and if necessary, that they be prepared and able to defend themselves in court and vindicate their rights against the university if it turns out the university has behaved badly.

Richard Reinsch (03:40):

So the Academic Freedom Alliance primarily is going to be working with academics?

Keith Whittington (03:44):

It is. That’s the primary goal.

Richard Reinsch (03:46):

So what are academics facing? We know what students go through, I think, fairly well in terms of problems they face. So academics are actually experiencing more censorious conduct as well?

Keith Whittington (04:00):

Professors are facing it as well, so it is certainly true that a lot of the free speech controversies involving students get a fair amount of attention, that those are real and the problems facing students are quite real. There are some very good organizations, including the Foundation for Individual Rights in Education that spend a lot of resources and time trying to defend students who find themselves in these situations and there’s important work that needs to be done there. But it’s also true that professors find themselves in these situations as well. Sometimes those become very public controversies and they do get a fair amount of attention, but a tremendous number of times, they get no attention at all. They’re really local conflicts that don’t attract any media attention, but nonetheless, faculty find themselves facing sanction from their employers for something they said and it can involve a wide range of situations. So we’ve seen lots of examples and they’re often very public examples in some ways.

Part of what I think we need to be doing is making sure universities are aware that there are costs to doing that, that the path of least resistance is not necessarily to undermine faculty free speech rights, but instead, sometimes to actually live up to those rights is also the easier thing for universities to be doing, but that requires putting public pressure on universities. It requires making them aware there’s a cost to be paid for not living up to their commitments.

We literally see them they are more transparent of a professor saying something controversial in public and then there’s reaction to it that calls on universities to fire those faculty members for saying something controversial. So the rise of social media, because it really made a big difference in this regard, it’s allowed faculty to reach a much broader audience in expressing their views than might, otherwise, have been the case. When you reach a much wider audience, that means there’s a lot more people that can potentially be offended and it’s, unfortunately we’re living in an environment where people, when they are offended or upset, want to organize themselves to try to punish the person that’s offended them or upset them. It means that a lot of people are now exposed to the unfiltered opinions of professors sometimes those are fairly inflammatory and controversial and so we do see public reactions that occur to those kinds of public statements.

But there’s also lots of instances of faculty saying something in the classroom, saying something on campus that upsets other members of the campus community, in particular, that leads to complaints against them and then the university’s investigating them. We still see examples of faculty being attacked because of their scholarship and things that they have published. Unfortunately, a lot of those attacks results in things like journals retracting journal articles. I think that’s, unfortunately, not as easily remedied because it’s not as if you have any kind of legal rights normally to those publications. But when employers get involved and universities started threatening employment sanctions on individuals for their scholarship, then that’s a serious issue and one that people do, in fact, generally have rights that prevent universities from doing that. We’re concerned, we’re trying to vindicate those rights.

Richard Reinsch (06:39):

My understanding on faculty speech is a number of precedents from the early Cold War period where professors who are accused of Communist or accused of traitorous conduct on behalf of the Soviet Union litigated claims and they were, ultimately, vindicated in federal court. So is this just a matter of getting people to sue, getting people to stand up and getting these in the federal courts and you have a really good chance of prevailing?

Keith Whittington (07:06):

Well, it’s more of a mixed bag of that, but it is true that, in general, I think American academics are fairly well situated in this regard, partially as a consequence of a lot of efforts by professors and their allies in the early 20th century. So the American Association of University Professors was founded in the early days of the 20th century in order to advance the principle of academic freedom in the United States. It was a principle that was really first advanced in Europe and was being brought into the United States in the context in which American universities simply didn’t recognize those kinds of principles. At the same time, they were encouraging universities to adopt a system to tenure, to protect faculty from being fired in the midst of these controversies. It took a lot of effort, but they were very successful in convincing American universities to build into their own governing documents, protections for academic freedom for faculty, as well as adopt tenure systems, although those have generally been eroded over time.

So on the one hand, a lot of American universities have fairly robust protections for faculty speech built into their employment contracts, built into their governing documents and the key is to make them live up to those commitments. Then, it’s also true for public universities you have a further backstop of The First Amendment. It is true that the U.S. Supreme court issued some opinions in the mid-20th century, mostly involving Communists and arguments surrounding any Communist efforts in the education environment, in which the court recognized that there were some First Amendment protections for faculty and the kinds of speech they engaged in, in public universities, but the Supreme Court has mostly stepped out of that. A lot of the subsequent cases dealing with those kinds of controversies have been handled in the circuit courts and it is a bit of a mixed bag. The court sent somewhat unclear signals about how to think about those protections, how exactly individual faculty members are protected by the First Amendment and in what context and certain courts, I think, have struggled to some degree with those protections. So in a public university context, there are some First Amendment backstops, but I think even in those contexts, faculty would better off so they have a robust protections for academic freedom built into their employment relations with their universities. That’s also, of course, true in the private university context where the First Amendment generally is not applicable.

Richard Reinsch (09:26):

Do you see the Academic Freedom Alliance assuming a major public role in its efforts, or is it just going to be their word-of-mouth, people know it’s there and it’s a formal organization with principles and procedures and things it’s going to do, or do you see the organization becoming an advocate as well?

Keith Whittington (09:45):

I think it would be both. I think part of our hope is to be advocating for these principles in public. I do think that we’re in a situation where people don’t really appreciate the value of academic freedom principles or even understand them very well. I think we’re in a context in which there’s a fair amount of concentration over whether or not we should want those kinds of principles and we ought to continue them to the future. So one reason why I’m very interested in organization like this is precisely because I think we need to be continually reaffirming the importance of these principles, thinking about how they apply in new and evolving contexts. So a certain amount of public advocacy needs to be done on behalf of these values because we live in a world in which these values are not taken for granted and there are people pushing in the other direction. So in the long-term, I think there’s a battle for hearts and minds that has to occur surrounding free speech principles in general and in this specific context. It’s also true that I think you, sometimes, can bring public pressure on universities in ways that will lead them to do the right thing in the midst of these controversies. Often, the way free speech controversies play out now is the people that want somebody fired get a lot of attention. They make a lot of noise. Universities feel under a lot of pressure from one side in these disputes and so the path of least resistance, the universities often just give in to those demands and throw the faculty member under the bus.

Part of what I think we need to be doing is making sure universities are aware that there are costs to doing that, that the path of least resistance is not necessarily to undermine faculty free speech rights, but instead, sometimes to actually live up to those rights is also the easier thing for universities to be doing, but that requires putting public pressure on universities. It requires making them aware there’s a cost to be paid for not living up to their commitments. It’s also true I think we’re going to have to do a lot of behind-the-scenes work as well, so especially when these kinds of controversies arise in a way that’s not very public when faculty members find themselves under attack, but this is not drawing media attention. The professors involved would often prefer that it remained quiet. They think it would damage their professional reputation if the controversy became more public. They’d prefer, simply, to have this resolved as quickly and quietly as possible, but they need to help in doing that. So we want to be sensitive to that. We want to help people in the situations they’re in and try to make things better for them. Sometimes that will mean trying to work behind the scenes to help persuade university officials to live up to their own commitments and particular cases. Hopefully, a fair number of those situations can be resolved without having to draw regular public attention to what universities are doing.

Richard Reinsch (12:18):

Well, I thought as well, the presence in higher education of a large number of non-tenured faculty, of adjuncts, and their situation, obviously, much more delicate than a tenured professor. So I imagine they would be reluctant to press their claims, but it seems to be that’s where the Academic Freedom Alliance and building culture rules and institutions better, the thinking about academic freedom could really help them in a way that they might be reluctant to press a claim on their behalf because they would worry about getting renewed.

Keith Whittington (12:50):

I think that’s absolutely right. When individuals find themselves in individual controversies, they need help and we want to provide help to them. But often, that’s a worst-case scenario, right? You’re already in trouble at that stage and we’d be far better off, if we can build a better culture, build better institutions, build better rules that are more protective of academic freedom in general, so that we don’t find ourselves having to fight each one of these individual battles and one of those really important institutions, from this perspective, is tenure. So as I noted in the early 20th century, American universities didn’t even have tenure systems. They built them up over the course of decades. Though, we’ve seen over recent years is an erosion of those tenure protections, in some cases, because universities are actively trying to get rid of or undermine tenure protections, but in lots of cases, simply by hiring faculty outside the tenure track and so hiring faculty who were going to be doing teaching and research on the campus, but have no hope of getting protected by tenure rules and that’s just extraordinarily damaging to the intellectual environment on those campuses.

In the long run, it’s certainly the case that reversing this trend toward having more contingent faculty who are on these semester- by-semester or class-by-class contracts is really important because one thing that we find in these kinds of controversies involving speech of faculty members is that if somebody has tenure protections, it’s not that they have more academic freedom. All those professors are entitled to academic freedom, whether they’re tenured or not tenured, but those who are tenured have more procedural protections from being disciplined as a consequence of their speech. So it’s easier to force universities to explain themselves as to why they’re taking action against a faculty member and it’s easier to mount a defense of those people when the reason for sanctioning the faculty members are not good ones and can’t be justified under the university’s own rules. In the context of untenured faculty members, as you say, it’s very easy simply not to renew a contract, provide no explanations as to why and as a consequence, it becomes very difficult to defend those individuals and hold universities to account, precisely because the procedural protections for academic freedom are so minimal in those contexts. So we certainly hope that we can help out contingent faculty who are in some of these situations. They are the most vulnerable people who find themselves in these controversies, but in the long run, far better solution is to bring more faculty under the protection of tenure.

Richard Reinsch (15:21):

Talk about the membership of the Academic Freedom Alliance because I think that’s an interesting story as well. This isn’t just a conservative or libertarian organization. This has wide support, from my review of the website, across academia.

Keith Whittington (15:34):

Yeah, that was absolutely the goal. I do think this is a common threat for academics across the political spectrum. Unsurprisingly, when you talk to people, you find that both inside of academia and outside of academia, that people have a picture in their head of who is vulnerable, who comes under attack under these circumstances. In our polarized world, they often imagine that one side is particularly vulnerable coming under attack for these things. But if you talk to a range of faculty, what you find is everybody’s very anxious. Everybody feels like they could easily come under attack. Everybody thinks that people like them are under attack and I think that reflects the reality is that it’s not just faculty on the right who are threatened for consequences of their speech; it’s faculty on the left as well. Under those circumstances, there’s an opportunity there to try to build a broad coalition in support of these universal principles of free speech and academic freedom for everybody, but there are also some challenges. There are weary coalitions that have to be built across the political aisle to convince people that even though they may disagree with each other about all kinds of substantive issues, on this issue, they actually have agreement. Moreover on this issue, there’s actually a commitment to defending people across the board. That does mean sometimes you have to hold your nose and defend somebody with which you have very deep disagreements, that you think that they had said things that by your own lights, are in fact offensive or dangerous or wrong-headed are false in various ways. Nonetheless, when they’re acting within their rights, they ought to be defended because that’s beneficial, I think to all of us, so that’s the kind of coalition we built.

We very much explained to the faculty who have joined the organization about what our principles are and that we have this broad civil libertarian view and I was very pleased by how many people wanted to sign on. When we first started talking about this kind of organization and what it might do and what it might look like, we initially started thinking, “Well, it might be good to get a few dozen faculty together who would be willing to sign some petitions, for example, on this issue.” Then we started reaching out to people and realized that there was just going to be a lot more interest than we initially figured, that people were eager to join up, that it was easier to reach across the aisle and persuade people on both the left and the right to join an organization like this than we thought. So we wound up, by the time of our public launch, having over 200 founding members who were willing to join up, which was far beyond what we were initially hoping to get. Like I said, I think, on the one hand it’s very encouraging because it’s very good. I think that people see this as a problem and are willing to do something about it. On the other hand, the fact that there is so much eagerness to join up with an organization like this is also reflective of just how nervous everybody is and how much of a problem people think universities are in at the moment.

Richard Reinsch (18:28):

That was my question, is it increasingly the case that progressive or liberal academics find themselves under strain? This isn’t just a right of center problem, but it’s under, say, critical race theory with your students, with certain deans that saying things that were once normal or considered standard in thinking about race in America no longer are and people find themselves on the wrong side.

Keith Whittington (18:53):

Yeah, I think that’s absolutely right. I think sometimes that the source of the attack is different, whether we’re talking about faculty on the left or the right. So it is often true that for more conservative members of faculty that when they come under attack for something that they’ve said or written, it’s an attack that’s coming from inside the house, so to speak. It’s coming from on-campus; it’s students, it’s colleagues, it’s university administrators who were upset and trying to get that faculty member sanctioned in some way. When it’s faculty on the left to come under attack, that is sometimes true too, they find themselves under attack from other members of the campus community, but they often find themselves under attack from people outside the university campus.

Political activists to media figures, politicians, donors, and alumni are often disproportionately likely to be criticizing faculty on the left side of the political spectrum. But it is still true that faculty on the left as well are often nervous about people you might think of as being their own ideological and political allies on the left there on the college campus itself. Some of this, I think, is a generational divide and that younger faculty, students are much less supportive and much less appreciative of broad, civil libertarian principles of free speech. And they’re much more willing to attack people that they disagree with and not just argue that they’re wrong and we shouldn’t be persuaded by what they say or that they ought to change their mind, but to argue that they ought to be silenced, suppressed or terminated as a consequence of what they’ve done.

Americans, in fact, don’t value free speech, even as an abstract principle let alone in the context of particular controversies. That I think is particularly discouraging and worrisome about where we’re headed in the longer term.

I think that’s part of what makes this a very worrisome situation that if we don’t explain why these values are important, I think we will, over the course of the next several years, find ourselves in a much worse situation where the majority of the members of a campus community, students and faculty alike, no longer support ideas of academic freedom and free speech and are perfectly happy to abandon them entirely, which has just be an extraordinary reversal of 100 years of effort to try to get these protections built into the university environment. It would not shock me that if current trends continue 30 years from now, those protections will no longer exist.

Richard Reinsch (21:08):

Wow. Do you see a litigation opportunity or opportunities for your organization regarding diversity statements that many academics or many on campuses period are required to sign of ways in which they’re going to advance diversity in their teaching or in their job on campus? This seems to be something like compelled speech and it’s almost like a loyalty oath. Have you thought about that?

Keith Whittington (21:32):

I think that’s why, as an organization, the Academic Freedom Alliance does not have a position on diversity statements. We have not taken up the case. I personally do think they are quite troubling and do represent a real threat to intellectual diversity on campuses and to academic freedom principles, more generally, as you say, that they are very comparable to the kind of loyalty oaths the faculty are required to sign at many public institutions in the mid-20th century, swearing they were not Communists and didn’t believe in Communist principles. These current diversity statements often take the form of a kind of statement that really is trying to filter by people’s political views in order to out conservatives, for the most part, although not entirely.

So it has political consequences. I think they’re designed to have political consequences. They are a form of compelled speech, which this court has ruled as unacceptable. I think they are contrary to other university policies in many places, so there are versions of this that I think are probably more acceptable, but there are increasingly versions of diversity statements being adopted on university campuses that really are just requiring compelled political statements from prospective faculty members. I think these things can be very hard to litigate, in part, precisely because they are being included in the job application, so there’s not a requirement that current faculty find these documents. Instead, they’re incorporated into application packages for graduate school, for jobs. As a consequence, then, it becomes much more difficult to determine if a given individual has been excluded from a university, that they’ve been denied to start in their graduate program; they’ve been denied a job because of what they said in the diversity statement or for some other reason. So they will be, I think, complicated to litigate in ways that was less true of the loyalty as where you required faculty or across the board to sign them. But it will not surprise me if we don’t wind up with litigation. It may not be litigation that the Academic Freedom Alliance is involved in, but I’d be very surprised if at some point we don’t get some litigation over these statements because they clearly run afoul. It seems to be some existing constitutional doctrine regarding compelled speech.

Richard Reinsch (23:55):

On just, in general, the campus environment, I had a sense that things were going to get better maybe 20 years ago, with regard to free speech and that FIRE’s work and other public interest firms, their work generally would improve the tenure on campus. Yet, I think things have gotten worse, particularly, in the last 10 years. Why do you think that is? One part of it, to me, is when I was in college in the late ’90s, if you were offended by something that happened on campus, in particular in the classroom, what we were told is, “That’s probably a good sign you’re learning,” or that you need to do some more reading, some more thinking. But that the professor got your attention, then that’s a good thing and learning, at times, should be hard as things that you’ve held dear maybe take on a different color. Now it’s, “If I’m offended, the person who offended me has violated my constitutional rights,” or, “my human rights,” or something like that. How did that switch take place?

Keith Whittington (24:50):

Yeah, I think it’s a good question. I do think that you’re right, that we’re in a worse situation now than we were several years ago. On the one hand, I think these are perpetual battles. I don’t think there’s ever been a golden age of free speech in which everybody embraced these principles and were consistent and good about actually implementing them. It’s long been the case that people will endorse the abstract value of free speech, but in particular contexts, they tend to want to carve out exceptions and exclude examples of speech that they find particularly troubling. That’s just a persistent problem that requires a constant vigilance, I think, to try to defend these principles because it just runs against human nature in the midst of particular emotional controversies.

But we’ve had cycles of when things were better and when things were worse in this regard and I think we’re certainly on a downturn right now when things are much worse. Some of it is that we actually are seeing a reversal of that basic tendency that’s been true for several decades I just mentioned, which is if you ask people on surveys, for example, “How important is free speech?” That traditionally, the answer Americans gave was, “It’s a very important value,” and then the challenge is to get them to actually live up to that value in the context of specific speech that they find offensive or disturbing. Now, increasingly, and this is a generational issue as well as especially true of younger people, Americans don’t think that anymore. Americans, in fact, don’t value free speech, even as an abstract principle let alone in the context of particular controversies. That I think is particularly discouraging and worrisome about where we’re headed in the longer term.

We absolutely need to turn that around and persuade people that free speech itself is valuable once again, and really, in some ways, the starting point for making that defense and providing that explanation has got to be the university campuses because, in part, it is younger faculty. It is students who simply don’t think this is an important value or think it’s not a very important value. It has a consequence. It can easily be trumped by lots of other kinds of concerns. I think it’s also true that this generation, it’s not a single generation, it’s a range of people, but particularly younger people, have come up in a different environment than older generations that as as a compass, their reference points for thinking about free speech controversies and what it means to talk about free speech are just a whole different set of reference points. So if you talk to people, faculty members, for example, who are older than me, their reference points are often things like the Civil Rights Movement, the free speech the anti-war controversies of the late 1960s and early 1970s and those kinds of conflicts. For them, those are the exemplars of free speech and why free speech needs to be protected. On the other hand, if you talk to, for example, the current generation of college students, that’s ancient history. It’s off their radar entirely. That’s not their reference point for when they think of free speech controversies. When they think of free speech controversies, they’re much more likely to think about neo-Nazis demanding free speech rights to harass people online or worse, right?

So their context in which they hear people waving the flag of free speech is very different than older generations. As a consequence, they often see it being used in a manipulative way, in a hypocritical way, in a way that simply seems to be designed to protect the harassing behavior that doesn’t advance ideas, particularly, or seem to serve any larger value. So that’s what they think of when they think of people who talk about free speech. It’s unsurprising, that they don’t find that a very sympathetic kind of value or something that we ought to care about, particularly. Of course, it’s because a lot of their reference points are online as well, for them, it’s also easy to imagine, “Well, the right thing to do when people are bugging you online is to get them thrown out,” right? You block them. You get them removed from the forum or whatever. So if that works in the online world, then surely, that ought to work in lots of other contexts where you could also block people and remove them from the environment as well. So it’s just we’ve encouraged and, I think, supported a kind of cultural expectation about how these dynamics play out and what free speech looks like that once you export it into this larger context, is just extraordinarily troubling for the future of a free society.

Richard Reinsch (29:25):

It seems to me, also, and in the last five years, and now it’s spread throughout the general population, I think, is just the idea of I don’t come to these debates or discussions or arguments using reason or logic alone, but I come to it through an identity and that may be the most crucial thing. What you have to think or say about the identity matters above all such that that becomes another way in which I might cancel you because the view is that you’re questioning my existence or something like that and that seems to be the source of the, “Well, I’m offended; therefore, it stands you should have to be escorted out.” Or think about the recent example at the University of Virginia where the medical student questioned microaggressions in a seminar and was escorted off campus, I’m told, by a dean and then removed from the program. I think a federal judge is going to, I don’t know if he’s going to reinstate him, but he’s getting some sort of redress of that. That’s one example of it, and then you’ve got now the diversity, equity and inclusion dean or administrators increasingly being hired. It seems to me this makes it all the more difficult just to think about ideas themselves apart from whatever we attach to them about our personal meaning.

Keith Whittington (30:41):

Yeah. I think there’s multiple things going on that all lead to very bad outcomes to a libertarian perspective. On the one hand there’s lots of forms of speech and expression of ideas that you can easily wind up leverging the mechanisms of harassment and discrimination and equity policing inside of organizations and inside universities to wind up excluding people who express that speech. So you would hope that when we set rules and procedures in place to deal with harassing behavior, that that will not have significant implications for the ability of people to express opinions and engage in arguments and discussion. It’s certainly possible to leverage those kinds of tools to try to suppress each end and people have. Unfortunately, universities I think, are on the leading edge of being willing to use their policies and allow their policies to be used for the purposes of suppressing speech. So we need to do a much better job of weeding through those procedures and rules and practices so that we can simultaneously address harassing behavior while also protecting a robust speech environment and we just are not doing a very good job of that right now.

It’s not enough for the universities just to articulate them; not enough to just have them in the faculty handbook. You’ve got to have institutional rules and practices and procedures and a culture that supports those principles and increasingly universities don’t.

So we’ve created a whole administrative structure that is easily exploited to suppress speech, and unfortunately, they are aggressively doing that. It’s also true, though, that I think that we just have a serious problem with a rise of illiberal tendencies on both the left and the right in our culture in general and they get expressed on university campuses, but they can express in lots of other contexts as well, in which people would much rather suppress their opponents than actually have to deal with them. So if you give people with those illiberal tendencies an option, their preference would be to suppress and exclude anyone who disagrees with them to silence them so that they can’t respond. Unfortunately, there’s a lot of desire to do that and we see that play out in lots of contexts. I think the identitarian concern is one aspect of it, although I don’t think it’s exclusively that, but there is also, I think, and unfortunately, a general pessimism about the ability of reason and persuasion to actually make any difference, right? So I don’t think it’s necessarily the case that people don’t think ideas are important, but they have, I think, increasingly lost faith in the idea that conversations about ideas are important.

Instead, people, and not everybody, but certainly lots of activists on both the right and the left, have adopted the attitude that what politics is, is a power game. It’s a mobilization of resources and numbers and instruments of power to defeat your opponents and advance your preferences. But it has nothing to do with actually persuading people and it has nothing to do with actually talking to people and coming to some common accommodation. It has nothing to do with negotiation or bargaining or recognizing and reacting to people’s disagreements or different interests. It’s all about gaining the upper hand and then using it and that’s just depressing. That’s not a good situation, certainly, for how universities ought to operate. This is not a good situation for how free society, more generally, ought to operate. If we give up on the idea that you can actually persuade people, you actually have some obligation to talk to people that you disagree with and try to find some common ground in order to make decisions about how we ought to live together, then as a democracy, we’re just at a very bad place. Unfortunately, I think that’s increasingly where we are in the views of an awful lot of people.

Richard Reinsch (34:38):

As you think about the future as the chair of the Academic Freedom Alliance, short term, medium term goals that you have for the organization to achieve?

Keith Whittington (34:47):

Well, I think in the short term, certainly, we hope to be successful in trying to defend some individuals who find themselves in these speech controversies. We’ve already been involved in some cases and we have, in fact, been successful in those cases and so that’s encouraging. It’s encouraging that the model might work. I think we are still in this situation where the rules on the books are actually good and favorable for these issues and so it really isn’t a situation where we’re trying to get administrators to live up to the rules rather than trying to have to change the rules. That’s a relatively good position to be in and so we want to take advantage of that. I think we’re still in a situation where sunlight is a good disinfectant, but if you make what’s happening transparent, it can put pressure on university officials to uphold the values of free speech rather than to suppress it. So, and that’s still encouraging about what our current situation is in. I think in the longer term, you hope that these kind of individual offenses become less necessary, that university administrators will behave better on the whole. You hope that you have some deterrent effect that university officials will get the message that they can’t simply railroad faculty members, that they have to actually respect people’s rights and it will be costly for them to try to take advantage of them in that way.

So you’ll get fewer of these individual fights and you hope in the long term that you can build a better culture and a better set of practices surrounding these kinds of principles so that these values of academic freedom and free speech are better protected than they are now. But that certainly is a long-term goal, right? That’s a very important cultural battle that has to take place. I think organizations like this are part of that cultural battle and I think it can go either way, I’m cautiously optimistic. I wouldn’t be doing this if I didn’t think that there was a chance of success, but things could go very badly, I think, if we aren’t willing to engage these fights and if we can’t successfully persuade people that free speech is actually a good thing and matters and we ought to uphold it. Likewise, I think changing the institutional practices of universities, for example, getting more faculty on a tenured basis will be a very difficult long-term challenge that universities like contingent faculty, not only because it makes it easy to fire problematic or troublesome faculty members, but also, because it gives the university administrators a lot of flexibility. It’s a cost-cutting move. It’s cheaper to have contingent faculty. It’s easier to rearrange faculty, if you don’t want them. It’s easier to run a university where you don’t have permanent tenure track faculty around that can push back against administrators.

So there are lots of forces that encourage universities to prefer a contingent faculty to a tenured faculty and it would be a very hard challenge, I think, to try to turn those trends around and get more universities to offer tenure. I think we are increasingly in a situation like we were in the early 20th century where for the bulk of faculty and local people doing teaching and research on college campuses that they don’t have tenure protections and they don’t have any hope of tenure protections and getting that for them, changing the basic practices of universities I think it’s going to be pretty important to really implementing the principles of academic freedom. It’s not enough for the universities just to articulate them; not enough to just have them in the faculty handbook. You’ve got to have institutional rules and practices and procedures and a culture that supports those principles and increasingly universities don’t. It’s going to take time and a lot of effort and not just by us, but by lots of other organizations as well, to try to turn that around.

Richard Reinsch (38:25):

Keith Whittington, thank you. We’ve been talking with the chair of the new organization, the Academic Freedom Alliance, about their work. Thank you so much.

Keith Whittington (38:33):

Thank you. I appreciate it.

Can the Postmodern Natural Law Remedy Our Failing Humanism? Apr 12, 2022

Richard Reinsch:
Welcome to Liberty Law Talk. Today we’re talking with long-time Law & Liberty contributor Graham McAleer about the natural law. He’s the author of a new book, called Erich Przywara and Postmodern Natural Law. We’ll talk about who that thinker is and also postmodern natural law in this discussion.

Graham has contributed dozens of pieces to Law & Liberty over the past few years on the ethics of fashion. He’s written on burkinis, he’s written on offshore trusts and family values, the Scottish Enlightenment. He’s explored the nature of classical liberalism, and defended it on the site. And has also written on numerous thinkers that you wouldn’t necessarily think could be conservative or have a classical liberal connection, like Lacan. But Graham’s done it and he’s done it very well.

Glad to have you for the first time on Liberty Law Talk.

Graham McAleer:
Great. Thank you, Richard. Thank you so much.

Richard Reinsch:
And our listeners, I know many of them have thought about and read about natural law. In the title, as I said, Erich Przywara and Postmodern Natural Law, what is postmodern natural law?

Graham McAleer:
Well, if we begin with postmodern, so postmodernism more or less grows up in the 1960s. It’s incubating before that, but it’s a reaction to the failing, it’s a very much a European, originally a European movement reacting to the failings of the European ideas. Obviously, not only with Nazis, but with the communists. So many people on left and right, have the sense that not all is well with the world. Not all is well with modernity and, most glaringly, the promise of the Enlightenment, right? The Enlightenment was supposed to make us more calm, more generous, more thoughtful. But the 20th century was a certain kind of repudiation of that idea.

So postmodernism begins more or less in the 60s, and is a whole bunch of things, especially in France. They’re trying to work out what went wrong and what the future might look like. But at the same time, they’re not nostalgic. They’re not believers. They don’t want to go back to the middle ages. They’re not Christian, so they want, without a return to God, they want to try to find what is still good about the human being after the atrocities of the 20th century.

So postmodernism, it’s a whole bunch of different thinkers. It sometimes gets very complex, sometimes they’re very interested in psychoanalysis, sometimes in the nature of language. But it all sort of boils down to an effort to try to think about how to have good communities, good politics, in the light of what happened in the 20th century.

Richard Reinsch:
But now postmodern natural law, because it is an interesting idea, I think of another close friend of mine who passed away, Peter Lawler in 2017, who had this idea of postmodern conservatism. Peter’s idea was that postmodernism signaled the end of the modern world and all of its aspirations and hopes of making us at home within the world and that its techniques and concepts had failed, as you’ve articulated. And that conservatism or the ability to look back to the full breadth of the humanistic tradition, including religion in the West, was needed. So your idea of postmodern natural law, I guess let’s talk about how does that alter natural law and maybe we need just a baseline. Natural law itself is very complex and rich. But maybe talk more about that.

Graham McAleer:
So natural law, it’s primarily associated with St. Thomas Aquinas in the high Middle Ages. He died around 1274, he taught primarily in Paris. So it’s a kind of a culmination. It had been a long time gestating, but it was culminating in the high Middle Ages. The idea of natural law is that the law is in its rudiments trans-political. So it was an effort not to get caught up in national passion. Now, from Thomas Aquinas you can see, of course, he’s a priest, he’s a monk. He, of course, favored the Catholic Church, and the Catholic Church, of course, was in a struggle with the Holy Roman Emperor, with national kings. It was all about power, assertions of power. So natural law came to be this idea about how to think about the law in isolation simply from national passion.

Then later on, the natural world became very important with the Age of Discovery. When the Europeans started to move out into the world, they encountered radically different kinds of lifestyles, politics, and this really sends through the shock waves. So then it became natural law was a way to have a communication among very different people when important things were at stake. Not only things like property, but things like human sacrifice.

So natural law was an effort to think about what is it that humans are obligated to living in common, but also to try to generate a great deal of flexibility. To take seriously the idea of different geographical, cultural, historical dispositions.

My own idea of the postmodern, and a little bit maybe like Lawler, was to then try to think about, well, how to update an idea that when most people think of natural law, they think of something very medieval, very old-fashioned. They think of it as very constraining. They think of it as very, to use a word from this guy Przywara that I’m interested in, very univocal. That it’s one size fits all.

That’s often the worry in the modern legal academy of natural law is its extremely dogmatic and tending toward some sort of tyranny. But there’s a way, I think, to think about natural law. Natural law concerns our basic appetites and it posits this idea. Aquinas says there are four things basically going on with humans. We want to preserve our existence. We want to continue in existence. We want to have family. We want to enjoy society.

And then there is also the problem of God, that there are no civilizations that haven’t grown up in and around the problem of God, the afterlife. If you even look at the most early human burial sites that we have, dating back 35,000- 40,000 years ago, people are buried with grave goods, with beautiful ornamented spears, necklaces. So there’s something weird about us, says Aquinas, right? That there’s always this problem of God that has to be confronted.

Those are the basic dynamics of the human being and those need to be articulated more, and they are, if you just think about what is it that legislatures dwell on. Well, they dwell on problems of self-care, how to raise children, how to protect children, what are the conditions for good human community, how to avoid hatred. Of course, but maybe more controversially, the problem of God is always do you exclude God, do you include God? How do you keep God contained in some way or do you become a kind of theocratic Iran?

I mean, Aquinas, I think, is quite astute when he thinks about what is it that politics is about. It appears to revolve around these four basic dynamics.

Richard Reinsch:
Because you said we want to preserve our existence. I’m thinking about the modern West. Is there any country in what we would think is in the modern West that even has a reproduction birth rate above or even with what’s called a stable population rate rather than a declining rate or an increasing population rate? I don’t think there is.

What do you think of that?

You say in the first chapter that natural law can remedy our failing humanism. Is that evidence of a failing humanism that we need to remedy?

Graham McAleer:
I mean, as you probably know, there’s certain European states which are offering tax incentives to have children. France, famously is doing this because rates are becoming very low, right? Which if you’re not replicating, you don’t actually have a good, dynamic economy.

So you see those arguing about why Japan is so advanced on robotics is that they have one of the worst birth rates on the planet. Indeed there are these, and I’m no expert on Japan, but you see these reports where there’s huge numbers of young adults who have never even been on a date with somebody of the opposite sex, right? There seems to be this weird, almost death spiral fascination that’s going on. But natural law would say, well, look, the law here can be a remedy. So if the law insists that you do need to replicate and even Darwinism would be making this argument, then actually you can do things around the nature of law that’s going to encourage it.

Now, because, of course, can nations go off the boil, so to speak? Can they depart? This is kind of what happened with the Age of Discovery, right? The Europeans go out and they discover cultures which seem so very different, so seemingly strange. So the idea was to try to find all of these underlying dynamics that
I mean, could one correct a culture? Could one correct a civilization? It’s actually pretty interesting. People like Francisco di Vitoria, who was a Thomist around the 1500s, he was the first person to articulate the idea of regime change on the basis of natural law. He said you could meet a population that was so departed from natural law that for their own good, you could actually change their rulers.

This actually is an argument that he had for the Spanish defeating the Aztecs. Now, of course, there’s all sorts of controversies and historical problems with that.

But the idea that nations can go off the rails, well, we know their records. We know that’s what happened also in the 20th century. So natural law in this case then, would be a kind of an educational model in some sense, a way to help us get back to what is the highest good of a human being.

Richard Reinsch:
Thinking about this failing humanism problem. Is the failing humanism that we don’t actually take ourselves seriously as embodied creatures? Or take nature seriously? You have a interesting discussion about metaphysics and decapitation. It makes me wonder, is it the case that late-modern man or post-modern man or however you want to characterize this, that we don’t, in fact, take nature seriously?

I mean, we’re all about the environment and nature and all that. I understand. But that we don’t think through the complexity of who we are as human beings, because I think that you think we’re kind of lost in that regard. Maybe that’s a reason why we have birth rates of 1.2, and are, as Pierre Manent would say, post-familial, post-religious, and post-political.

Graham McAleer:
I would say that we, and I do get from this Jesuit theologian, Erich Przywara, we also struggle between thinking of ourselves as mere bodies and at other times as angels. So it’s extremely common. In fact, one even might say a standard person deeply interested in environmentalism is also somebody who wants a radical assertion of their own autonomy.

So on the one hand, the very same person who’s deeply interested in environmental stewardship might also be a big, big fan of trangenderism, which seems to be a contradiction. That a deep respect for the nature that we are gifted with versus then a sort of radical assertion of autonomy and technological transformation. This would be what I call decapitation. Sometimes we think of ourselves as angels.

Richard Reinsch:
Would another instance of that be the same people will tell you, “I’m an autonomous individual with natural rights, or I have so many rights, rights everywhere. But I’m fully explainable by evolution.”

I’m a materialistic being. That’s who I am, a clever animal. That’s it, and then not really thinking through how does that all work.

Graham McAleer:

And that’s the other side of it, right? So you hear all the time people say that you shouldn’t go around repressing. What’s the problem with morality? What’s the problem with moral earnestness? Well, it’s just a repression of the powerful desires that you had better let release, otherwise you’ll become perverted and twisted. It’s a kind of a classic argument against the Catholic priesthood, that it’s ignoring this radical vitalism. So sometimes we’re these angel beings and sometimes we’re these thoroughly materialistic beings. The weird thing is, says Przywara, is that we flit rapidly between the two. So we’re not consistently one or the other. This then leads to this idea of mistaking what’s in the middle, this idea that we are bodies that can be articulated through civilization or values.

Richard Reinsch:
So the body is, I guess, maybe help us understand the unifying aspect there. That would help us make sense of this wild metaphysical … How should we approach that?

Graham McAleer:
Well, so in a classical, Aristotelian ethics, you have your desires and you need the virtues. You need the virtues to perfect your desires. For example, the problem of fear. Fear is natural enough. But there’s a right time to be fearful and there’s a wrong time to be fearful. You can overly compensate by becoming reckless. This is highly dangerous, both to yourself and to people around you. Or, of course, you can sort of undercook it and you can indeed exhibit a kind of cowardice when, in fact, you need to be strong for others. This is, for example, very frequent, we found, in the problem of parenting. Sometimes you have to be the strong one to say to the family, to a child, “Look, this just is not okay. This is going to be damaging.” A lot a parents, obviously, and especially in a more liberal society, can often evade those responsibilities.

So we have this idea, inherited at least from Aristotle and also found in natural law, that we need a rational, virtuous articulation of our appetites and our bodily inclinations. Inclinations for food, safety, security, et cetera.

In the book, I talk about this strange idea we find with our relationship to the embryo. On the one hand, the embryo is seen as a source of great medical potential. But on the other hand, it’s seen as something that we can be completely cavalier about. So we have this weird, schizophrenic relationship to early life. Sometimes it’s the most valuable thing in the world, so you think about all the parties celebrating the pregnancy. And sometimes it’s a thing most casually cast off and put into laboratories and spliced and diced. So sometimes the baby is sort of angelic and sometimes it’s a kind of resource. That’s even the way that people often think about their own children. The way they think about the way that sometimes parents will foster a certain kind of attitude in their children, which is that demanding of them is just far too much.

We kind of ricochet between these two options of what Przywara calls vitalism on the one hand, connected with the body, and angelism, connected with the mind. But what you need to do is somehow try to hold the two in tension.

Richard Reinsch:
On that analogy, you have this idea, liturgy of morals and value tones as well. I want to talk about that through this great example you give, which I think our listeners will enjoy, of James Bond. How does James Bond help us understand those concepts and explicate for us post-modern natural law?

Graham McAleer:
Yeah, so Bond, I think, is an interesting phenomenon. On the one hand, it is a huge marketing, economic business. And if we think a little bit about, well, what is James Bond? Well, he’s a kind of powerful human physique wedded to very strong sense of justice, care of the other. Of course, this is then fed through ideas of the British establishment. He is for Queen and country. But this is the thing that I was interested in, was trying to find examples where the body is linked to establishment, where the body is linked to civilizational values. You see this, right? You see this with the way that Bond dresses, his interest in clothes, his interest in sports, his interest in cars, and, of course, his interest in games.

So one of the ideas that I had was to try to think about how the natural law is linked to games and the liturgies in games. On the one hand, you hear people say, “Look, cultural relativism goes all the way down. Humans are just radically different from one another by history and by civilization.” This isn’t quite true, because one of the assured things, you go anywhere in the world and you throw a ball and humans will run after it. All culture, bizarrely, have games connected with humans running after a ball. What’s going on there?

Well, what’s interesting about that, actually, is that not only do we run after balls, but we generate rituals and we generate rules. And we generate referees and umpires to navigate the rule and to determine when something was out of bounds, when someone stepped over the line.

So what you see, actually, is that our moral vocabulary is linked profoundly to the idea of playing games, the idea of a playing field. You can look at all manner of establishment venues and could see this idea. So you’ve got various rules of etiquette at the law court, Parliament and so on.

So I was interested in Bond as a figure of someone who is very playful, but who serves the establishment, who serves justice, who serves law. Then to think a little bit about, well, what were the values that he was literally bringing to bear. These have something to do with fashion, style, glamor. This is why I’ve always been interested in the Scottish Enlightenment and Adam Smith and the idea of economics as driven by luxury. It seems to me again not only do humans immediately run after a ball no matter where they are in the world, actually, what we’ve learned over the last 200 years at least, is that we also run after luxury. So I think-

Richard Reinsch:
It’s expensive shiny objects. We like that.

Graham McAleer:
Right. So what Adam Smith calls toys of frivolous utility. Actually, the utility goes quite far down. But his point was that our interest in luxury is not primarily about utility. It’s about the playfulness, it’s about the ritual, it’s about these sorts … the ritual.

I used to hear this all the time on the internet. So if somebody’s interested in Louis Vuitton bags, like all these videos, especially of women but not just women, unpacking the Louis Vuitton box that came in the post. These boxes, they’re orange and you open up the box and inside they’re in a cloth envelope. You open up the envelope, and then you open up the bag and you show what’s in the bag.

So these are rituals around things that are beautiful. What’s going on about those videos is, these YouTube videos, is they get millions of views. So what’s going on there? Something profound about our nature is going on.

Richard Reinsch:
Help us understand that. This idea, liturgy, morals have to be a liturgy. What do you mean by that?

Graham McAleer:
Yeah, well, so there’s a lot of moral theories that are, they’re mathematical or extremely austere. So a very mathematical moral theory’s, of course, utilitarianism, the greatest happiness of the greatest number. Right? It even sounds like a mathematical composition.

Another very popular one is Kantianism and Kant says that you and I must obey the moral law, and we can only obey the moral law if we are extremely pure. If it is purely the moral law that determines our action and not our culture, not our historical condition, not our private appetites, not privilege in certain people, you must obey the austerity of the law. So you have these extremely abstract, almost mathematical, purity kind of moral laws.

Another way to think about ethics, which is, I think, through liturgy, through … I say liturgy. I mean it quite boldly. I mean the kind of liturgies that you see at sports games. So sports games, people dress up in the colors of their team. They go to a particular playing field. Some of these playing fields are very sacred, right? There are even playing fields in England around soccer teams where one can be buried under the grass, right? So it becomes sort of a burial ground. You sing songs. There are collective gestures when your side scores a goal. You act one way when you miss the goal. You act another way. So you have these gestures. It seems to me that our ethics can actually be built around these rituals, rather than these more abstract principles of purity.

Richard Reinsch:
So what we need is, we need more institutions. We just had Yuval Levin on the show. That’s his whole book, we need more institutions. We need more forms. Procedures, things like that. So democratic society from one view tears these things down because we want to be liberated from them. We want to be … I got to be me, is the cry. But what you’re calling for we actually need something like the rules of a courtroom, or of a Parliament, or even a workplace in a way. A workplace has a lot of written and unwritten rules of how you should conduct yourself. Yeah, we need those, is that what you’re saying? To act moral.

Graham McAleer:
Yeah. On the one hand you’re absolutely correct. There is a certain movement today that we need to get rid of our institutions. Now, of course, then there’s another movement which is oh, no, we need more of them. So we need to go between the two poles, which would be more Erich Przywara, of course, the analogical position.

We need the ritual. These rituals are publicly enacted. But again, to go back to sports. The point about sports would be that these sports associations are what Burke would call these middle institutions, where people gather. They gather under their own terms, through their own proclivities, through their own interests. We don’t need them micromanaged by the state. Humans are quite clever at coming together in association that is not only healthy in a way, but actually it enacts rules. So the rules of the golf club, the rules of the tennis court, all of these rules make us more law abiding. One of the things I wanted to argue was that rule of law is actually embedded in our play structures, in our rituals of games.

Richard Reinsch:

How about another thing? Related question, I think. Natural law and value tones. Can you talk about that some, because that’s also an interesting idea.

Graham McAleer:
Yeah, so in the 20th century, but I think you can find this in Adam Smith actually, but in the 20th century, you had what was called “value theory.” It began in Germany. It linked to a philosopher I know you yourself quite like, Aurel Kolnai. Value theory is the idea that there are categories of values and we are extremely alert to them. These values come in a hierarchy, so you have values of utility. We have a cell phone because it enables us to be in communication with the world, so it has utility.

There are values of vitality, physical exercise. In keeping with these cell phone idea, we also show vitality in the pictures that we share and videos that we watch. So something like the app TikTok is a good example of this vitality connected with a cell phone. Then there are intellectual and scientific values, which, of course, are linked to all sorts of questions of design. You find this in the iPhone. Then there are values of the person and the divine.

The idea of at the top of the value hierarchy is a fundamental regard for personhood. This again, it seems to me, the idea where people think of their cell phones, and especially young people, students that I teach, think of their cell phones as an extension of their personhood. So there is a hierarchy of values and there are thousands of values contained in each and every one of these categories. Let’s just take an example: Perfume. There’s a vast industry. Chanel 5 is a vast industry connected with perfume. Well, what is a perfume? Well, it’s a set of value tone. It’s a set of distinct scent.

So somebody could walk up to someone who was wearing a certain kind of a perfume and say, “Oh, I really love this citrus scent in that perfume. What it is? Please can you tell me about?” So you and I actually are extremely good at understanding these value tones and at every level. We’re very good at picking up on what’s useful. We’ve very good at picking up on what is vital, like things that smell good, things that smell bad. We’re very good at picking up on design and scientific ideas. Then, what we hope, of course–this is a hard one in some sense–we hope we’re also very good at affirming human personhood.

So this idea of value ethics became very dominant in the 20th century, and it was seen as a corrective of the mathematization of ethics that you found in utilitarianism. Which would link to Jeremy Bentham in England in the late 18th century and with Kantianism in the 19th century.

What I wanted to do was then try to link what I saw in Thomas Aquinas about these basic inclinations and value theory. My linkage was really to kind of dwell on this idea of games and plays and rituals. Because I think, again, we see these value tones in the various kinds of games, the way that we dress up for them, the songs that we sing, et cetera.

Richard Reinsch:
Most people would respond and think, “Well, that’s consumerism. This is a lot of stuff.” I mean, a lot of what they think about the fashion or a lot of things that people purchase in sports itself. Your fascination with sports is some substitute for something you should be doing.

Graham McAleer:
Well, I think consumerism, critique of consumerism, which one hears all the time. Obviously, with Pope Francis in particular these days when he voices it. But actually, if you think about what’s going on, I mean, the purchase of, say, a Louis Vuitton bag. Actually, what there is there is a deference to the values of craft, the values of inheritance, the values of long tuition, learning how to build something from these materials in a way that is beautiful, supple, also useful.

So it seems to me that consumerism, one can look at consumerism rather superficially. But there is, I think, in a fascination with these objects of high design, there is, in fact, a deference to these value tones. That we all understand what’s fascinating about a Lamborghini car. Well, what’s fascinating about that is its industrial complexity. And this is then something that does, in fact … I say consumerism would be an idea, look, this makes people completely superficial, just all about the pleasures. But in fact, it really isn’t. If I may, let me give an example.

… I love from Shaftesbury, an Englishman, but he was very important in the Scottish Enlightenment. Shaftesbury gives this example of the man who has a hawk to go hunting with, but the man over time falls in love with the hawk and he puts the hawk on a pedestal and he feeds the hawk and he just sits looking at the hawk. It’s so beautiful. Well, we sort of do this in the way in which those of us who are fascinated by collections, whether collections of handbags, or cars, or pipes. There is a certain kind of value world that encloses itself upon us and helps actually make us better. So people who love, just keeps going on about a Louis Vuitton bag, they also look after it, right?

They cherish it in certain ways. They follow certain rules about how to care for it. This is also a bit like the sports idea as well, that we actually do learn about ideas of fair play, not breaking the rules. Although we also, and I point this out in the book, we also have ways that people can play tricks in games, but there are penalties. One accepts the penalty. So we see this both deference to these values, which enclose themselves upon us, these things that are higher than us, they’re structuring us, which is very much like the natural law. It also teaches about ethics and morality.

Richard Reinsch:
So maybe the signal that you’re overindulging would be you’re running up a high debt to buy all these items. Maybe that’s a signal. Would that be part of the liturgy of morals?

Graham McAleer:
The overindulging part, you mean?

Richard Reinsch:
So what would be the sign that you’re overindulging? Yeah, it would be consumer debt, you’re racking up consumer debt. Maybe that’s part of the liturgy of morals here.

Graham McAleer:
Certainly. There can be fake things there. Right? Because certain people know people have these desires and even though they’re not in a position to actually purchase the real things, they’ll purchase the cheaper version. So abuse. But it’s true of all ethics, right? All ethics has to deal with certain excesses. So I do grant that you can have bad games. Even you see this in James Bond movies, that the baddies play certain kind of bad games, and Bond has to play the game and somehow find a way to reassert the decency and the goodness in the doing of the game.

I mean that obviously there is something there, but I still think that game structures are a useful way to think about how to structure our appetites towards community, towards ideas of fair play.

Richard Reinsch:
As I’m listening to you, I’m thinking of the liturgy of morals and the value tones. Before we got online, you and I were talking about the recent British election, where the conservatives scored a resounding victory that no one predicted. I’m thinking is this part of it? The British public grew tired of watching the rules being flouted, if not interpreted in weird ways to sort of privilege one side. I think in particular of the Speaker of the House, John Bercow, who seemed to be putting his thumb on the rules. And the way the debate was flowing or not flowing and people were tired of it. People wanted the rules.

Graham McAleer:
I think probably what’s happening over in England in the last few years is a conflict of two different kinds of games, with the games played in Parliament and, of course, with the, as you know, the Prime Minister’s question time. The idea is to turn the opposition into the pantomime villain and they go into jeering and laughing. There’s an extremely strong play structure built inside the procedures of Parliament and Congress.

But there’d been another game that had been played, the game of a democratic election. This is also a game. Gamesmanship is part of it. So this is the bit when the politician takes off his or her jacket, rolls up their sleeves and starts holding the babies and kissing the babies, right? There’s a kind of a playfulness in what it means to go on the hustings and to speak in public and the rituals of rhetoric that go with that.

For that game, which was somehow perceived in England as a kind of … The election was a kind of a more primordial game in a way, where the whole people had come together and had played a game, the election. And then there was this sense, well, there’s this other kind of a game going on and this other kind of a game seems to want to subvert this more primordial game that we all just engaged in. I think what happened, I mean, one way to explain the astonishing result that happened just before Christmas, was that there was a kind of a deep sensibility in England that the original game that had been played, the election, was the one that absolutely must be respected.

So you had people who were wanting to stay in the European Union who nonetheless voted conservative, because they felt, well, we had an election and that needs to be respected and Parliament is sort of playing around, but in a negative sense, right? The negative sense of playing around: They’re playing me for a fool. So it seems to me there was a conflict of two different kinds of games, two different kinds of rituals that had to be resolved there.

Richard Reinsch:
Things were so bad, as it was in the press, that the Queen was astonished at the dysfunctionality of the British political class, which I assume that somebody wanted that to come out, which is interesting, the sort of underscoring that the rules not being followed or understood.

I think I want to end the discussion thinking about law specifically. You said in the introduction that two conceptions of law are both wrong. One is the conception of law in Islam where it’s just divine will. But then also, more familiar to us, in the Enlightenment understanding of law. The Enlightenment perspective, it’s just human will. It’s just we understand it, we can run out its content in human rationality. Talk about why you think, under your conception of natural law, those are both equally wrong in different ways.

Graham McAleer:
Yeah, so in the Islamic conception, the law comes directly from God. So the ways that humans over the centuries have organized themselves, their customs, their rituals, their games, their forms of worship, the clothes that they wear, all of these things have to be put through a kind of a grinder, the grinder of divine law.

So you see this in the most extreme version, of course. Of course this is an extreme version. I’m not saying this is what Islam is. But in the extreme version of ISIS, when they engage in radical cultural destruction, that nothing even of the past may interfere with this deference to the demands of the law of God.

Then on the flip side, in the European Enlightenment, American side, we have this idea that the law should just reflect whatever our current passions are. So this idea of the evolving Constitution or of this idea of the evolving natural law. But this idea that our national passions, nothing may stand in the way of those. This is a kind of a presentism. This is about our national passions today. Who we are today will determine the kind of law we have tomorrow. Natural law sets its face against that.

Against Islam, natural law says, look, we have all these customary ways that have arisen out of the way that we deal with our basic inclinations. These need to be respected. And in the Christian tradition of natural law, they are respected. Divine law is a very particular, finite part of law, actually of what the law is. There’s also human law connected with institutions and judiciaries and then there’s the natural law, the basic inclinations.

But [there’s also] the Enlightenment idea, that the people of today are more enlightened than the people of yesterday, and therefore we don’t need to respect the legacies of the nation. Consider Edmund Burke, who thought that the establishment that we had inherited was to be preserved, precisely because it picked up on an important idea that humans are an historical people. We have our heritage and we will also have a future, so you need reform, but you also have a legacy and this legacy also had deep, abiding value.

So natural law is wanting to sort of insist that there a kind of abiding center of moral orientation. But it also wants to be quite supple to take on changes, obviously changes in technology, changes in economic order. But the Enlightenment gets that wrong as well, because it’s far too rational.

It thinks we should just think about what was so bad about communism. Well, communism was an idea, a kind of a geometrics of human control in which economic planning would determine the wholesale movement of entire peoples.

Richard Reinsch:
One particular application of your idea in the Enlightenment would be the, and I don’t think it’s nearly as dominant as it once was in the academy, but John Rawls’ idea. Which is clearly in the America legal academy that the law and the reasons for law must be purely secular and had this ability to build overlapping consensus, which is the insistence on public reason, secular reasons for law. Your conception of natural law would say to him that you’re simplifying law to a great degree and not admitting that there’s a ground for law, I think, that’s not just reason. Or am I wrong?

Graham McAleer:
No, that’s right. I mean, toward the end of the book I talk about Rawls. And Rawls has this, as some people listening know, this very cool and strange and interesting thought experiment, where you go behind this veil and he says you have to strip yourself down, essentially. He doesn’t say this, but you have to almost think of yourself as an angel, a being without a body.

Richard Reinsch:
With no interests.

Graham McAleer:
And you go behind a veil. You’re just this sort of atom with no deep inclinations at all, no preferences at all. You then kind of work out, well, once I come from the veil and I enter the world, what do I want the world to look like? What do I need for the world to be?

I think a natural law theorist would think that Rawls’ starting point is extremely strange. Now, you see its heritage, of course, in Kant and the idea of this kind of approach of purity to the law. But, of course, we’re not pure in that sense. We come with inclinations. This is a deep insight of natural law. We come with a set of inclinations and we need to work on those inclinations. So the Rawlsian idea that we could remake ourselves, I think is based upon what Przywara would call an angel or … We can’t totally remake ourselves, because we can’t ignore the fact that we are these very complex animals with a past, with our genetic inheritance.

But also we, for whatever reason and as we even see in burial sites, we have this idea of some sort of afterlife, some sort of continuity beyond this world.

That’s the theologico-political problem, the problem of the divine, that’s going to have to be resolved somehow inside of politics. So, again, it seems to me, this is what Rawls completely ignores, because he does want things so secular. He’s sort of tied to this idea that the religious is always inherently destabilizing, violent. I mean, I think he’s got a kind of a caricature of what the development of religions has been like.

So it seems to me natural laws are really useful ways to take seriously what it means to be a human animal and fundamental appetites that repeat in all cultures. Again, I took the idea of games and values as a way to see that we do seemingly, no matter where we are in a civilization, we do seem to want to play certain kinds of games and we do want to seemingly want to buy certain kinds of products and these engage, I think, in fundamental values and inclinations.

Richard Reinsch:
Graham McAleer, I think that’s a wonderful place to end. Thank you so much for discussing your book, Erich Przywara and Postmodern Natural Law.

The Spiritual Quest of Identity Politics Apr 12, 2022

Richard Reinsch (00:04):

Today we’re talking with Joshua Mitchell about his latest book, American Awakening: Identity Politics and Other Afflictions of Our Time. It’s my honor to welcome Josh Mitchell to the program. He’s one of our best thinkers and writers about politics. In the academic discipline of political theory, he’s the author of a number of books and numerous essays and reviews, including Tocqueville in Arabia, which I reviewed at Law & Liberty, which was an account Mitchell provided of his teaching of Tocqueville’s democracy in America to students largely from the Middle East when he was at Georgetown’s campus, I think it was in Doha. Josh, we’re glad to welcome you to the program and to discuss American Awakening.

Joshua Mitchell (01:04):

My pleasure. I’m really looking forward to our conversation.

Richard Reinsch (01:08):

A basic question here at the beginning, what has woken up in America?

Joshua Mitchell (01:12):

Periodically, America has religious renewals, Tocquesville observed this, we know this from history. What has happened is that the left has decided that we have to have a different kind of accounting system. What we need to measure is transgression and innocence and there’s a whole scale that you can use to assess who you are. I think one of the big mistakes that people make is they say, “Oh, identity. I have an identity. Identity is just this kind or that kind.” Lebanese or French, whatever it happens to be, black or white. Identity politics is about the kind that you are.

When we say I have an identity these days, we mean something more than time. We mean the group of which we’re a member that has a certain status in the great continuum of innocence and transgression.

What I’m suggesting is that’s a colloquial use, but it’s not an adequate use. What identity politics is trying to do is to measure relationships between groups, not a person, groups that individuals are instances of that have a certain victim score, or transgressor score. There’s a whole hierarchy here. They’re literally trying to build a world where we look at each other in terms of our identity score, whether we’re a transgressor or whether we’re a member of the innocent group. That’s a profound taxology. What I do in the book is I set up what I call becoming identity politics of innocence, versus what I call the liberal politics of competence.

Richard Reinsch (02:40):

When you say identity, can we talk more about that? What does it mean to say I have an identity, in your account?

Joshua Mitchell (02:49):

Most people will say of course we have an identity, but I’m old enough to remember when we didn’t even use the word. This is the latest intellectual fashion. When I was growing up I would say I’m an American, I’m a man, but we would never use the word identity. Somehow, I think starting in the ’90s, maybe a little earlier, I don’t want to nitpick on dates here, some time along in the last 30 years we started saying things like, “I have an American identity. My identity is this. My identity is that.” It’s very curious, surely on the basis of intellectual history, why would we need to add the thing when we used to say, “I’m an American.” That’s the kind I am. I’m an American, I’m French, whatever it happens to be. I think identity doesn’t mean just kind, I think people are invoking it to signal something. I make very clear in the book that I think we have to stop using the term virtue signaling. Virtue is a Greek thing. Innocence is a biblical thing. I think because we’re involved in a pseudo religious awakening, people who want to call this out have to start using the term innocence signaling.

When we say I have an identity these days, we mean something more than time. We mean the group of which we’re a member that has a certain status in the great continuum of innocence and transgression. As I say in the book, the prime transgressor who is blamed for everything and all that he does is the White, heterosexual male. I said, to be clear right at the outset, I have no interest whatsoever in defending White nationalism or whatever you want to call it. My point is that the White heterosexual man now has a kind of symbolic standing as the cause of all the transgressions in the world. As I say in the book, every single major party platform idea in the Democratic Party can be linked to this idea that the things that White heterosexual men have brought a problem. Capitalism, burning fossil fuels, the nation state, the heteronormative family, Christian religion, every single one of these things is traceable to the idea that there is a stain in the world and that is the White, heterosexual male and, in order for us, the innocent to be liberated, he must be purged. That is a profound distortion, in my view, of Christianity.

Richard Reinsch (05:18):

Now your book is an exploration of identity politics as a spiritual, religious manifestation into our politics that has taken over our politics, but maybe we can get into it this way more specifically. You use this term towards the beginning of the book, you talk about the “invisible economy of man.” What is that? Why does that matter for identity politics?

Joshua Mitchell (05:45):

I would give the left some credit on this. I think the deepest theological insight we have from the Hebrews and from Christians is that there is in fact two economies. I make mention of a couple of these things in the preface to the book. I note, for example, one of the gospels, the opening passage, or one of the opening passages, Joseph and Mary had to go back to their place of birth because all the world was to be taxed. The way I characterize this is one of the gospels opens up with the idea that there is this thing called a world of payment, dollars and cents and taxes. Everything gets accounted for in the ledger book. Everything visible can be accounted for in the ledger book. The gospel is very clear, they don’t stay at the inn, they stay in probably a cave, Jesus is put into an animal feed trough, it’s completely off the ledger books of the world of visible payment. I think that’s what the gospel writer is trying to say. Christ came into the world not to address the visible world of payment, but the invisible economy of transgression and stain and to offer redemption in that way.

Then I think the more glaring example of this, the most beautiful example of this is Judas. It’s very clear that Judas, he praised Christ because he is thinking of this visible economy. Oil is poured down onto his head, think of the money that was worth. He feels like Christ is not being the revolutionary in the visible economy to help the poor. Christ says the poor will always be with us and it means any number of things, but among other things, it means that there’s something deeper going on here in the world than just this visible economy. He comes to offer relief from the transgression that no world of payment can understand. This is the deepest Christian insight, it’s a profound insight. I give the left credit for that, or the identity politics credit for that. It’s announcing, saying a more profound economy than the world of payment. I’m not saying it’s one that has to be replaced, we have to live with both economies, this is the problem. We have to pay our taxes and yet there’s something deeper going on in the human soul than just the payment of taxes. That’s the credit I give to identity politics.

The problem is that it wants to think that problem through now, think that issue through now in the world of politics and replace the world of payment, capitalism, et cetera, with this new economy that’s concerned only with innocence. That’s why, by the way, AOC and others can offer a new green deal and they don’t care if it costs 50 trillion dollars, because the more important economy is the invisible economy. I’m saying the invisible economy is more important, but we can’t live without the visible economy and the place where this invisible economy has to be wrestled through is in the churches and the synagogues, this is where we have to wrestle through this. It’s not an accident, in my view, that the collapse of the mainline churches in the aftermath of the Vietnam war didn’t put an end to the category of transgression and stain. It shifted. The Pew Charitable Trust poll indicates that a larger and larger number of Americans are among this group called the none, they have no religious affiliation. I’m saying that’s not true, they have a profound religious affiliation. They are addressing the problem of transgression and stain, but they’re just not doing it in the churches, because they have a new place and a new way to do it and it’s called identity politics.

We’re still desperately looking for atonement, this is a human thing, but when you only have the longing for atonement but no longer have the old mechanism for doing so, you’ll come up with all sorts of new modes of atonement that you think will solve your problem of guilt

Richard Reinsch (09:21):

Your account of the invisible economy of AOC, or of the woke and conflating that or trying to infuse that into the world, another manifestation would be defund the police, I think.

Joshua Mitchell (09:35):

Yeah, yeah, exactly.

Richard Reinsch (09:37):

The quarterback, the woke quarterback, although he’s not really playing anymore, Colin Kaepernick called recently, I think over the weekend, to abolish prisons in America. You mentioned the Green New Deal. I mean it was basically a draft proposal someone had dashed off that they released to the public. I mean everything from flights to killing the cows in America was contemplated as a level of control there. I guess an older idiom of thinking about this, also somewhat spiritual, would be Voegelin’s idea, well-known idea of immanentizing the eschaton. That is the perfectionist impulse of the woke and trying to make that our politics. Your account is sort of like that, sort of different.

Joshua Mitchell (10:21):

Yeah. I do think it’s embedded to Christian categories. I mean I do agree with most of Voegelin on this. It’s embedded to Christian categories, but it’s a kind of … well, it’s an end of history scenario. We’re going to finally get away with all the filth in the world, get rid of dirty, fossil fuels, we’re going to get rid of all the dirty things. There’s going to be an accounting at the end of … we are at the end of history, this is the most important thing, we are at the end of history. We have the task of all that came before us that’s implicated and stained and, to use the passage from Isaiah that I think is most apt, the lion has to now lay down with the lamb. We’re at the end of history in toto. The only thing left is that there has to be a complete accounting of all the stains and transgressions that history has provided for us. In Europe, I’m very worried about what’s happening in Europe, you’ve got a post-Christian Christian region where … what I mean by that is people aren’t going to church, but they’re still haunted, haunted by the transgression of history, notably two world wars and colonialism.

The deal that the European elite are cutting here, you are indelibly stained because of your history, especially the Germans. There is no theological mechanism for you to atone and to begin anew, because God’s forgiveness doesn’t give us a way forward to have a new day, because we’re always haunted by guilt we can never expunge. The deal that the left is offering, and in America, the only way that you can disburden yourself from your guilt is to renounce your history and to renounce your nation. That is now the reason why the European Union is pushing back against the very idea of nations. It’s a religious attempt to find relief from stain and impurity, but without the religious mechanism of doing so. That’s why in Eastern Europe, where you still have a strong Catholic church, people don’t fall for this.

Yeah, sure, bad things have happened, but we know where stain is gotten rid of, it’s called at the altar before Christ in the churches. In Eastern Europe, terrible things have happened there, but they’re not going to fall for what Western Europe is falling for, namely that there’s no Church left, so the only way that we can atone is by renouncing those sites, mainly the family, the nation state with rule of law, the nation state itself, that’s the deal that you have to cut. We’re still desperately looking for atonement, this is a human thing, but when you only have the longing for atonement but no longer have the old mechanism for doing so, you’ll come up with all sorts of new modes of atonement that you think will solve your problem of guilt, well nothing will solve your problem of guilt outside the Church, but you’re going to try everything. You’re going to purge the White people, you’re going to get rid of the nation. It’s a desperate and sick attempt to find a way towards cleanliness. That’s what’s happening here at the end of time. The immanentization of the eschaton in the sense it’s the end of time, but we’re looking for atonement, it’s a deep, personal thing too. That’s the crisis of our moment.

Richard Reinsch (13:40):

You have in the book a line that wokism introduces … well, it doesn’t introduce, it changes the meaning of the traditional Protestant, or I’ll say Christian theological concept of original sin. There’s no original sin in wokism, but there’s an original sinner. Also you express this idea that there’s also no forgiveness. Ultimately there’s no possibility of atonement. Those who are the transgressor, right now the transgressor is the White, heterosexual male, and of course we can talk about and I’d like a discussion of how a parade of transgressors will follow but kind of beg for sufferance from those he has oppressed. I think a number of us have seen this, certainly these videos and displays throughout the summer of people, particularly Whites in these protests kneeling down in front of minorities. I’ve seen kissing the boots, things like this, to try to show an attempt to atone or seek absolution for the crimes of their race or gender overall.

Joshua Mitchell (14:42):

Yeah. I think we have to make an important distinction. I think, as Americans, we have collective responsibility to heal wounds, but not collective fault. I mean my family, at least a large half of it came over in the 1890s from what’s now Lebanon. How am I implicated in slavery? There’s a desperate attempt to find atonement. My point about original sin is that what it means is that deeper than your lineage, deeper than the fact that I might be part Lebanese and part Welsh, deeper than that is something that is always already there. It’s original to the human condition. The absolutely profound insight that Christianity gives us is that you can’t solve the stain that’s always already there by looking for a mortal solution to it. You can’t look at that other group and say, “If I can just scapegoat them and purge them, then everything’s going to be fine.” The problem is deeper than any inheritance you have or they have. This is so unbelievably profound. Rousseau saw this. Rousseau’s a nut, but he saw some amazing things, he understands some amazing things. He said this is what changes when you move from Pagan politics to Christian politics, because in Paganism you really did think that by purging that other nation with other Gods through cathartic rage that you could purify yourself. The Christian claim was no, the problem of stain is so deep it goes back to Adam and your inheritance, whether you’re Lebanese or French or whatever and that other person with some other inheritance, you can’t solve your problem of stain by purging another group. The problem is original. It’s always already there.

We’re always … I mean I’m haunted by Genesis four through seven, Adam and Eve sinned, there’s a transgression there and Eve says, “The serpent made me do it,” and Adam says, “The woman who you gave me, it’s your fault, God.” We’re always looking … that statement right there, it’s this astounding statement about human nature. We have fault internal to us and we’re always looking out there, external to us, to find a way to hide, to find a fig leaf to hide from our transgression. That’s what identity politics is. It’s saying we recognize fault, we recognize there’s an invisible economy and the way we’re going to solve it is the Pagan way. We’re going to purge groups. We live in this really strange time where we still have some Christian understanding that we really probably shouldn’t do that, there’s a thing called the rule of law and every group, every member of every group is supposed to have a standing independent of the group. This itself is a remarkable achievement of Christianity, but we stand on the cusp of returning to that Pagan idea of purgation.

The Christian claim, and I come back to Rousseau’s politics, that’s not going to work. That’s why Augustine comes up with the Just War doctrine. What it means is we can’t just go to war expending cathartic rage on the enemy. That’s not what war can be about anymore. This is a profound breakthrough. I understand that the question of original sin is involved in all sorts of huge debates between Protestants and Catholics, I’m actually trying to go back and move beyond that debate and say, “What does it mean for us today in light of identity politics?” My point is, if it’s original, then we can’t solve the problem of stain and impurity by purging another group, which is exactly what identity politics is trying to do. The Christian claim is, the only way out is to recognize that all of us are broken, whatever we may have done to each other as groups or individuals, all of us are broken and there is a divine innocent one. There’s no mortal innocence. What identity politics does, and here we return to Voegelin, is it immanetizes the innocent one. That would be my difference with Voegelin. He says it immanetizes the eschaton, I say it immanetizes the innocent one.

Richard Reinsch (19:09):

The innocent one by definition doesn’t sin, they are only sinned against, which unleashes tremendous-

Joshua Mitchell (19:18):

Yes, exactly.

Richard Reinsch (19:18):

… arrogance and hubris which we’ve seen on display throughout the past four months in this country. You can do no wrong, but wrong can be done to you. What I ask, something that I keyed in on in the book and it resonated with me because I grew up in the ’80s in a small town in Tennessee. What I remember learning in the public schools about Martin Luther King Junior, he was called Reverend and I distinctly remember that. Also I attended a Methodist Church growing up. Reverend Martin Luther King I heard about.

the only group that can stop this identity politics madness are Black Americans who will say, “Wait a second. This is not what Martin Luther King signed up for.”

You talk about, and only a few people have noticed this, the transition. It happened some time I think in the ’90s from Reverend to Doctor. You talk about the meaning of that and how that helps us think about identity politics. That resonated with me because I understood as a kid in some way that the Reverend meant not only did he defeat segregation at law, he understood what it was really about and how to defeat it spiritually, but you go on to talk about that.

Joshua Mitchell (20:18):

This is, I think, something people who are concerned with the real legacy of Martin Luther King need to constantly talk about. He was the Reverend Doctor Martin Luther King. What that meant was he understood exactly this theological formulation that I gave and advanced it. It would be impossible for Martin Luther King as a theologian to advance identity politics, because identity politics makes the grievous error of presuming that there are innocent and guilty ones here in the world of time and that we can find a solution to the problem of transgression by scapegoating other people. Martin Luther King, I remember on occasion said, “Look, the problem is not White people, the problem is evil, the problem is principalities and powers. That’s what we have to fight against and the ally we have in that fight is Christ.”

As we know, you read the gospel, he’s exorcizing the demon, so only Christ has power over evil itself. Of course sensible people can’t talk about evil and sensible people don’t believe in incarnation, but sensible liberals … remember there was something about transgression and innocence in the 1960s, so now we’re going to do this without the theological accoutrements altogether. You have the categories without the profound theological insights, so you have to separate the world now between the innocent and the stained. Before all the world was stained and God alone was the innocent one. You see the innocent voice as victim, but that category now is taken up by particular identity groups. This is, again, a profound distortion of Christianity. I say that, through the indication of the Reverend Martin Luther King, we actually have a way to begin to wrestle with this problem of innocence and transgression. Through the indication of a Doctor Martin Luther King, which is the way the identity politics people now do it, the only thing you have is one group aggrieved against another and never ending cathartic rage, anger and resentment and then defensive postures, which never allows us to build a world together. That’s where we are today.

Richard Reinsch (22:28):

That is also a way of thinking of the Black experience in America. You talk about this in the book. You quote Robert Woodson, who was a community activist, rightly understood, I would argue, who was trying to rebuild civil society and Black neighborhoods in America. He talks about this idea now, the part of the Black experience in America that was heroic in an age of real oppression and very real segregation forming mutual self insurance societies, fraternal societies I should say, building their businesses, churches and how that worked. That’s sort of forgotten and there’s the plantation and there’s oppression and there’s the Democratic Party doing an activist thing and that’s it. It’s like you’ve whitewashed even the history, you’ve taken that out. Woodson says it’s like Blacks are another identity group and their experience is this ever growing fund that new minority groups draw on to vindicate their claims.

Joshua Mitchell (23:34):

A couple of things on that count. Bob and I have become good friends. We’re actually working together very closely on something called the 1776 Unites project, which is in response to the 1619 project. We’re on a weekly call with a dozen or two dozen people, largely Black, who are pushing back against this idea of systemic racism. Bob’s claim … two things. First, I think Bob and other serious Black intellectuals are realizing that their movement has been co-opted. I say this in the book, making reference in a sly way to Rosa Parks. I mean Black America is now asked to sit at the back of the Democratic bus. Black America was what I call the template of innocence that feminists, gays and transgenders now have adopted. The argument is, of course, as civil rights go, so goes women’s rights, gay rights and transgender rights. You look at Martin Luther King and what he understood was Black Americans survived slavery because of family and Church. What a paradox now.

The left starts with the template of innocence of Black America and now it’s gotten to the point where the group it’s defending want to undo the family and the Church. Something has gone seriously wrong here. Bob knows and he and I have talked at length about this, his view and mine is that the only group that can stop this identity politics madness are Black Americans who will say, “Wait a second. This is not what Martin Luther King signed up for.” The expectation is that Blacks are just going to go sit in the back of the bus while new groups keep taking on the crown of thorns using the template of innocence of Black America. My sense of this, I don’t know if it’s this election or the next or who knows when, but it cannot be the case that, in order to be inclusive now, to use that leftist word, we have to oppose heteronormativity, we can’t be cisgender, we can’t believe in the Church because it’s really homophobic and we can’t live that way. Most importantly, and this is Woodson’s point, belief among us absolutely needs those institutions. That’s the first thing.

The second thing is, Bob is upset because he says there is a grand history of Black achievement against incredible odds. He and I are trying to set up something called the Center for the Study of Resilience. We’re trying to find a university where we can do this. What we want to do is simply chronicle, either in video or a written form, the extraordinary exemplars in the African American community, but it can’t be only them, it’s immigrant communities, it’s the American story against all odds to build families, to build communities, because our young people, rich and poor, desperately need some evidence that there’s human agency and there’s hope in the world of time. The real objection to the 1619 Project is, yeah, it’s bad history, that’s fine, but look, forget the history, what is at stake is the politics of this. The politics of systemic racism is this, the problem of racism is so deep that your families can’t help you, your Churches can’t help you and your neighbors can’t help you.

Only the state can help you. What that teaches is there’s no human agency and there’s no hope. The real message of the 1619 Project, the real message of those who claim systemic racism is that you can’t do it on your own. Nobody’s saying you do it on your own, our view is a Tocquevillian view, which is we build a world together in our families, in our Churches, in our neighborhoods, in our local communities, in our towns. That’s how we do it. My favorite line of Democracy in America is feelings and ideas are renewed, the heart enlarged, the mind expanded only by the reciprocal actions of men, one upon another. It’s one of the most beautiful lines in Democracy in America. He’s saying that everything in the modern world conspires to isolate us, conspires to let the state step in because you and I find forming human relations difficult and that will produce the kinder and gentler tyranny at the end of history.

Bob’s addition to this is, the people who are first hurt by this are the least among us. They’re the ones that most need the mediating institution in order to pull themself up. Bob is a profound Tocquevillian. I’ve been a Tocqueville scholar all my life and when I met Bob two years ago I think, oh my God, here’s Tocqueville in action. He is, as you say, he’s the right kind of activist, meaning someone who is really interested in empowering local people. You find the people who’ve been able to make their communities work and you help them. Bob tells a wonderful story. First he says, “80% of my friends are exes, ex-cons, ex-prostitutes,” and he finds the broken among us. He says, “When I go into a town, I go to the barber shop and I say, “Who do you go to when things are bad?” We’re not saying go down the welfare agency, but who is the person you go to? They’ll invariably, after talking to 10 or 12 people, there’ll be two or three people that you identify and he goes and meets them. He says, “What’s your secret?” He hears these incredible stories, oftentimes of regeneration from alcoholism or prison or whatever, it completely transformed their life, they become the pillars of the community.

Bob’s answer to the problem of racism in America is a really straightforward one. It’s a Joseph/Pharaoh model in Exodus where you find the Joseph of the community who has prevailed against all odds and has immense respect and you say, “How can we help?” That’s how you address racist America. It’s a profoundly Tocquevillian understanding of what we are to do. I’m so hopeful that the kind of thing Bob is doing can start to resonate. What we’re finding is that Conservative donors are beginning to realize that there is a way to talk about race in America that doesn’t require that we capitulate to the left, it says, “Well okay, there’s a problem of racist America, that’s why we have to have more state programs.” That was the model for 40 or 50 years. The right, not wanting to grow government, decided they didn’t want to talk about race. That’s wrong. We have to talk about race in America. There’s a really constructive profoundly Tocquevillian way to do so and Woodson, he’s 83 years old now, he’s been showing the way for half his life and we have to get behind this man who’s a national treasure. I cite him a number of times in the book.

Richard Reinsch (30:06):

This book, there’s identity politics, there’s also a discussion about bipolarity and addictions and also substitutes and shortcuts as well. Could you talk about those parts of your book? I mean I was going to talk and maybe we can, I think you’ve been giving us a really nice understanding of the liberal politics of competence versus the identity politics, I think you’ve done that well, but the bipolarity and addictions, what do you mean by that?

Joshua Mitchell (30:34):

I have been fascinated in my readings of history and political thought to observe this idea that human beings … I’ll be brazen, naturally oscillate back and forth between highs and lows. I see this as early as Plato’s Republic book nine when he’s talking about the tyrannical soul. It’s in Saint Augustine, the Confessions. Yes, it’s a beautiful account of the cosmos and the journey to God, put if you look at Saint Augustine, he himself, he shows, he tells in his confessions about how he has these moments of tremendous highs and tremendous lows. His answer of course is there is no rest until I rest in peace, until I rest in the presence of God.

I can show this in the writings of Hobbes, I can show this in the writings of Rousseau and absolutely in the writings of Tocqueville. The most troubling thing is that this phenomena that has been known about since people began to think seriously about the human soul, has been rendered as a biological problem with the brain and this is a tragedy. This is in a way the fuller development of Huxley’s work in Brave New World where he says all these deep longings, all these deep anxieties, which should point at the human freedom, will be medicalized away. That was the dystopia that Huxley’s raising and laying out in Brave New World. I dare to suggest to a world that can only see this problem as a medical problem that in fact, in Tocqueville’s language, it’s a problem of human association. Tocqueville says, at the end of Democracy in America line two, which I think is the deeper line, he says, “In the distant future I can imagine a time where we will think of ourselves as greater than kings and less than men.”

What he means by this is we will become so socially isolated that we will have no other people who check us, so, to use my language, will become selfie man, completely isolated. We’ve got our Facebook pages and our social media platforms and we de-friend anyone who raises the slightest question about the things, the crazy things that we believe. We produce selfie man on the one hand, this is the I feel greater than kings, I’m the sovereign of my universe, but it’s precisely those conditions of social isolation that lead us to profound loneliness and emptiness and feelings of impotence. When Tocqueville says I foresee a day when we will sense ourselves to be greater than kings and less than men, he’s saying the full consequence of a world where all of the links have been broken is bipolarity. He’s literally saying that. I say that the problem of bipolarity is a problem of human association on the Tocqueville I’m reading. Now I’m not going to step in and say well therefore go off your medicines. I think medicines can be supplements and we’re really interested in that section, they can be supplements that can help us return to health, but they can’t be substitutes for that health.

In Tocqueville’s reading, until we build a world of rich human association, we’re going to oscillate back and forth. He says in one passage, he says yes, in Europe there’s going to be suicide, but in America there will be madness. There will be all sorts of mental instability. He thinks it’s because we’re going to become increasingly lonely and isolated. It’s only by building a world together that we can ameliorate, not solve, but ameliorate that problem. That’s again why that passage, feelings and ideas are renewed, the heart enlarged, the mind expanded only by the reciprocal actions of men, one upon another is so important. He’s saying if we don’t do that, we’re in deep trouble. To come to what I take to be the important insight of the new national conservative movement, is, I think, completely on board on this, the biggest project that we have is to rebuild the mediating institution. Yes, it’s important who’s the president, but if we’re just looking up then we’re not putting energy into all these mediating institutions that we so desperately need in order to build a life together. That’s what Tocqueville saw.

Richard Reinsch (34:58):

Just listening to your analysis, it should not surprise us that identity politics, anti racism, systemic racism has come full bloom in this time of COVID isolation, of job loss, of all the things people are experiencing. You talked about … it was before the podcast, what you think some of your students are going through and then this movement erupts because of George Floyd, although the more I think about it, I mean it’s just the cause and effect is just ridiculous. It’s horrible what happened to George Floyd. How that though has justified the last four months, or could justify it is just … it makes me scratch my head every time I think about it. I think arguments have been made, we haven’t realized it, I haven’t realized it, how deep they had gotten and then they met this crisis and opportunity with the COVID restrictions.

Joshua Mitchell (35:58):

First on my students, I’m teaching at Georgetown now all through Zoom and my experience at Georgetown is not unique, so it’s not a Georgetown problem precisely, but I’m starting to get emails from my students saying, “Listen, I can’t get that test in, I’m really suffering from serious anxiety.” Actually the first thing I wrote after the COVID outbreak was on social distancing and how what we’re doing is really doubling down on exactly the pathology that Tocqueville thought would happen and the consequences will be untold. We’re always looking at how many deaths from COVID, well let’s talk about the grave collateral damage, the number of suicides that are going to happen. As I drive out here to the eastern shore I see a big billboard for opioid addicts saying you are not alone. Guess what? You are alone. You can’t go meet people. The people who are addicted, they know this. I have friends who are in Alcoholic’s Anonymous. They can’t have real meetings. When you meet face-to-face, to come to your second point, we have all the correctives we need. A great Christian insight is that the imagination can really cause all sorts of trouble. God sent the floods because they became vain in their imagination. This is very important. Tocqueville sees this problem by the way.

The more and more isolated you become, the more you have a demonic imagining of who the other person is. The only antidote to that, the only way to diminish our assessment of the demonic-ness of other people is this never ending face-to-face association. We know this, because we’re all involved in groups where we might not like someone and we’ve got to work with them. You go into the meeting and you’ve been imagining all sorts of terrible things about that person and then you go into the meeting and you have to work out some solution, all of you have to come up with an answer to a problem and you do. You make compromises and you walk out of the meeting and you say, well maybe that person isn’t as bad. They still might be bad, but they’re not as bad. You attenuate our demonic imaginings of the other only through face-to-face associations.

Okay, so now let’s run the clock. We’re supposed to have a two week lockdown and we’re now six or seven months into it, what do you think is going to happen to people’s imaginations? That’s the first thing. Then the second thing, you mentioned the George Floyd riots. I wrote something about this for First Things. It is a curiosity that these people who insisted on social distancing, on locking down, instantly went out and protested and rioted. This calls out for an account. My account is it’s a deeply distorted Christian understanding. Let me explain why, background. Plato, the opening lines of the Republic are about going down to the Piraeus and they’re worshiping at a festival with Bendis where death is ever near.

The central problem of the Republic is death and how to avoid it. It’s only through the philosophical practice of death that you can see the light of eternity. Philosophers are concerned with overcoming death with noetic knowledge. That’s the brief format. Christian’s don’t think that’s right. Death is the second problem. Death is the consequent problem because of the first problem. It’s because Adam and Eve sinned that death came into the world. Now plug that in to what happened with COVID and George Floyd. Everyone says death is the problem, death is the problem, we have to isolate from one another, but if sin is a deeper problem than death, then people are going to give up on the death thing as soon as sin becomes the real problem, or the perceived sin becomes a real problem.

That’s why people who mask on the left who are scared to death of death, ultimately they still have this Christian sensibility. This is what I’m trying to say, it’s a deeply distorted Christianity. That’s the bad news and the good news. At least it’s a distorted Christianity, but that’s why people went out on riots, because the problem of sin is deeper than the problem of death in the Christian world. I’m saying that people went out to riot is a perverse confirmation that understanding is still the deepest one in the psyche of the west.

I’m thankful for that, but if I may, here I would like to invoke Nietzsche, by the way it’s his birthday today, what Nietzsche saw was that the west had purportedly renounced it’s Christianity, this is in the 1880s, but that it was still trapped by many of it’s categories. The fateful question was whether it could fully renounce the questions and move on. This, by the way is the alt-right, because to move on is to forget. It’s to not be oriented by guilt and sin and stain. The language of stain and purity, the language of the innocent victim, these are all Christian terms.

He wanted to completely jettison it and move on to the new/old aristocracy, which would be a return to the aristocracy of cruelty, where the only categories were weakness and strength, not innocence and transgression. I think that’s really the fateful question that we have in front of us right now, because I think Nietzsche got this diagnosis right. I’m a Tocqueville scholar, I love Tocqueville, but Nietzsche adds something to the picture that we really need to pay attention to. We’re living in a world of Christian categories without the Christian architecture. The question is whether we’re going to go forward with the Nietzsche product and the alt-right is doing this in Europe and in America, we’re just simply going to forget, we don’t care about slavery, we don’t care about colonialism, we don’t care about 60 million people dying in World War I and World War II, we don’t care.

My whole project here is I want the categories of transgression and innocence. I don’t think we’ve achieved human responsibility. I don’t think we’ve achieved the depth of soul without being constantly attentive to the categories of identity and transgression. Within the Christian context, which allows us to go forward with self consciousness about fault, but with the understanding that we can build a world tomorrow on hope notwithstanding that, that’s the good news of Christianity, so I’m frightened to death by the current moment. I mean on the one hand I should be thankful we’re still invoking the Christian categories, but without the Christian architecture, it just reminds people that they have a guilt they can’t get rid of and then people are going to say, “Well maybe Nietzsche’s right. Maybe the only way to go forward is to forget and to go back to the old cruelty.”

That’s the moment I think we are in in the west as a whole. We can talk about the collapse of the mainline churches in America and how that contributes to identity politics. I think that’s true, but I think the deeper issue is the historical moment in which we find ourselves, which is not secular. I mean if identity politics doesn’t prove that we’re not living in a secular age, I don’t know what will. We’re using all these theological categories. This is not a secular world. This is a world where we’re searching for answers to the problem of transgression and innocence without God and forgiveness. That’s the American awakening right now. We have really two choices. We can go back and put these categories back in their proper theological context, or we can go forward to the alt right and to the new cruelty. Those are our existential choices.

Richard Reinsch (42:59):

It’s interesting in this regard thinking about your discussion of addictions and the place of addictions in America now and how it encompasses so many things that we do. As I finished your book I thought the ultimate addiction will be identity politics, precisely because of these categories-

Joshua Mitchell (43:19):

Yeah.

Richard Reinsch (43:20):

… you’ve been discussing and the ability to find a transgressor and place everything on that person. Also, as you discuss, though very nicely put about the 1619 Project, the power of the state, that itself becomes it’s own deity that can call forth our worship because of what it can offer us if we get it right and getting it right also means finding who’s getting it wrong. Why is there an unending series of transgressors in your account? The White heterosexual male will be displaced at some point and a new, probably White females will enter that place and so on and so forth, why is there a need for constant transgressors?

Joshua Mitchell (44:03):

Identity politics is a theodicy. It’s an account of how there is evil in the world. The way I … well, I have to return to what I said at the outset, which is that it’s a relationship. The Christian theological formulation, the Son is eternally present as the innocent one and we are eternally present as the transgressors, by virtue of our inheritance from Adam. That’s the Christian theology. The identity politics theodicy is an eminent theodicy of good and evil. Here’s the problem, now we dumped everything on the toxic male, toxic masculinity. Of course toxicity is a medical term and so is purgation. We’re using these medical terms to indicate that we have to expunge something from the body social. Let’s imagine that we do, let’s imagine that we socially avoid our natural desire to be protective and to go to battle for noble causes, it’s okay, we’ll send them into the video universe. They’re going to stay there. They know where they belong, they’ll just play their games, we’ll let them do that. Let’s imagine we purge the White male. You have a theodicy problem. People are still experiencing this sense of guilt and stain, so they need to find a new person who can bear the burden for this, because the problem is clearly not within them. The Christian claims it’s within you, because you’re all inherited with Adam, but no, it can’t be. But wait, we’ve gotten rid of the White heterosexual male. You need a new scapegoat. You always have to have a scapegoat. The great Christian insight is there’s a divine scapegoat, stop looking at other people. If you get rid of that divine scapegoat, then you’re going to have to find a new scapegoat group. My argument is the next group will be White women. Maybe, I don’t know, maybe … it’s very interesting to look at the tension between Nancy Pelosi and the squad.

Richard Reinsch (46:03):

Yeah, yeah.

Joshua Mitchell (46:04):

One way of looking at that is that, in point of fact, this is the beginning of the purging of the White women. Look, Joe Biden is kind of an impotent man, that’s the only reason he’s allowed to be the candidate. He proves everything that identity politics says about the White man. He’s impotent, he’s a buffoon, he’s perfect. We get rid of him, Biden’s the last of the White men and then, look at Pelosi and, I put this in quotes, women of color who want to take over the Democratic Party. The White woman is next, she’s clearly next. Then my point is it’s the Black heterosexual male who believes in the family and goes to church, he is the next guy. He’s Martin Luther King. He’s the next guy, because if you have a theodicy and it’s based on eminent groups, then once you get rid of the transgressor, you need to find another one and it will go on and on and on and on.

You need to have the high, to come back to your point about addiction, you need to have the high of saying, “That’s the person.” If we can just purge him, if we can just shame him and humiliate him and call him a leper by declaring he’s a fascist homophobe, I’m going through my list, hater, denier, Nazi, what are the other ones? Transphobe, Islamophobe, I mean these are all equivalent terms. They basically mean you are the scapegoat on whom I’m going to vent my cathartic rage in order to get high. That’s identity politics. It can never end. It can never end. At the end, as I say, I speculate hundreds of years into the future, I say at some point, after hundreds of years of cruelty to one group after another, it may occur to someone that maybe the guilt that never goes away can’t be expunged by looking outwards. Maybe it has to look inwards and maybe we have to recognize that there’s only a divine solution to this guilt that’s always eternally within us. That’s the agony. It can’t work is what I’m saying. It can’t work, but people are continuing to try.

Richard Reinsch (48:15):

Now you and I would like to avoid that fate of hundreds of years of agony, of the sclerosis that would result from this kind of politics. You know this, being in higher education in our elite sectors of our society, journalism, education, politics, entertainment, law, more and more institutions, it’s not that just that they’ve been overtaken, I mean they’ve just willingly given in, surrendered and now wear this stuff. That was sort of the story as the sporting season’s got underway. There’s willingness to take this on and to flaunt this. The question is renewal, I think your answer would be the liberal politics of competence, but we have really only one political party, some of it’s people understand what’s going on. Your prospects though for renewal here are, what?

Joshua Mitchell (49:10):

I said one thing which is Black Americans. The beginning of the end of identity politics will take two forms. One, when Black Americans say, “No, this is not what the Reverend Martin Luther King had in mind.” No, you cannot trade on what happened in slavery, I’m very precise about what I mean here. You can say women have been oppressed, gays have been oppressed, fine, you can say all that and it’s true. In a society that’s concerned with generation, women and people outside the generative mode are going to have a second place standing. If we’re not concerned with generation then all bets are off, but it can’t be the case that those groups can say, “Our problems are like what happened in slavery.” What happened in slavery was the destruction of the family, this is what we have to get. Every feminist I know had a mother and a father. Every gay person I know can at least say they had a mother and family that wasn’t ripped apart by law. That’s the difference. That’s why the family, the so-called heteronormative family, sorry, you don’t touch it. You don’t touch it for the reason that the least among us need it. Full stop.

Now a plural society, and here’s perhaps where I differ from some Conservatives, whatever your religious convictions may be, a plural society will be one which does not demand that everybody do the same thing, but it does demand that generation has to come first. I’m perfectly fine being tolerant, but I’m not prepared if the tolerance means that I am guilty of a thought crime called heteronormativity. Sorry, that cannot work. That’s not liberal. Liberal is there are things that a society must do and it must do them first. If there’s room for other things, those are political decisions that we can make and you have to live with the political decisions. In that sense I’m not quite in the Conservative camp on this matter. But where I think we must push back is we have to say, “Look, a society has to regenerate itself and you can’t tell the people who are doing that, especially, as it were, the least among us who are struggling, you can’t say that the very institution through which you can find stability to do that is guilty of a thought crime.” It can’t work. I think the first hopeful sign is that Black Americans are beginning to wake up. I hear from Bob Woodson through his network there is a slow awakening here. There’s something seriously wrong with the left right now that claims to have the backs of Black American. They do, by the way, just before every four year election and then you forget about them. I think that’s exactly what Black Americans are seeing.

The other place of renewal, and I don’t see it right now but it’s going to be necessary, are the churches and the synagogues, because they’re the only place where this can be set right. I don’t think there’s a political solution to this problem, because the problem is that the category of transgression and innocence has just drifted out of religion into politics. Only when it returns to religion will we be able to return to a liberal politics of competence. That’s a very tall order and I don’t see it happening really in the divinity schools. I think the Martin Luther King idea of what a Church is supposed to be is still alive and well in some portions of Black communities, although identity politics has penetrated there too. The so-called White churches, they’re the worst of it. They’re practicing, as you say, White people going out and kissing the feet of the innocent ones, this is really twisted. Do we have a legacy that must be fixed? Absolutely. There’s a wounded America that we have to pay attention to. I’m not saying it’s unimportant, it is tremendously important, but we have to get it right. We have a collective responsibility, but not collective guilt. I mean, look, most of us can’t trace ancestors back who had slaves. Even if we could, are we to bear the burden of things that happened generations ago? Or is there a promise of redemption? That’s the great question. The churches themselves have betrayed their charge.

Richard Reinsch (53:04):

Well Joshua Mitchell, on that, why don’t we bring this conversation to an end? This has been wonderful. Thank you so much. Josh Mitchell discussing his book, American Awakening.

Joshua Mitchell (53:16):

My pleasure.

Studying Patton Apr 15, 2022

Richard Reinsch: (00:18)
Today, we’re talking with Furman Daniel about his new book, Patton: Battling with History. Furman Daniel is an assistant professor in the College of Security and Intelligence at Embry-Riddle Aeronautical University. He’s the editor of 21st Century Patton and he’s the co-author of The First Space War, which sounds interesting. Furman, glad to have you to talk about Patton.

Furman Daniel: (00:50)
Richard, it’s great to be here.

Richard Reinsch: (00:52)
What got you interested in General George S. Patton?

Furman Daniel: (01:03)
I was lucky to have parents that introduced me to reading and military history and trips to military museums since I was a little, tiny kid. So, some of it is I’ve just been interested in these types of topics for a long time, but kind of like you said, he’s one of these figures that if you’re going to read about World War II or if you’re going to talk to veterans or learn about this kind of stuff, it’s hard to escape him. Because he has this larger than life persona, because he has the 1970 George C. Scott biopic and because he’s always the person that people like to tell stories about, like to talk about, like to read and write books about, it kind of seemed like a natural thing, even as a little kid, to read books about him, read his own works, and the fabulous Martin Blumenson volumes, The Patton Papers. And then when I got a little bit older, when I got to be a professor, actually be privileged to write in books about him.

Richard Reinsch: (02:02)
And you’ve written extensively about Patton. You confront this early in the book. There’s this Patton that’s been presented maybe in popular culture primarily, but also, sort of part of the mythos even that he wanted to create about himself of the natural warrior, sort of a pagan spiritual warrior who in his soul touched a thread of military greatness perhaps and many Americans certainly know the movie Patton and just think of him as our great general. How do you think about him in relationship to America as a whole?

Furman Daniel: (02:35)
I think you put your finger on something really important, that separating out the popular George C. Scott mythos from who he actually was is really important. I often say that the biopic with George C. Scott is both a blessing and a curse. It’s largely accurate and it shows lots of his exploits and keeps the memory of that alive. The George C. Scott portrayal is fantastic, with a couple of few small things, but it actually comes at a cost. It obscures the fact that he was a very complex person. He had a much more interesting and developed background than even the three-and-a-half-hour movie had time to go into and unfortunately, because movies are so vibrant, because that kind of popular mythos is so easy to digest and understand and enjoy, often that takes over. I’m reminded about the line from The Man Who Shot Liberty Valance, “When the truth becomes legend.” With George Patton, the legend has been printed and put on film and put in popular media in a way that I think now, even 75 years after his death, it’s time to go back and say who was he really? And I think when you do that, when you actually say what was he really like and how was he different from the movie, it actually gives you a more interesting view on the man and a more interesting view on his success. The movie, the one thing it gets very, very, very wrong is the voice. So Patton’s voice basically sounded like Mickey Mouse. It was high and squeaky and nasally and very different from George C. Scott’s gravely, rough, kind of inspiring voice. It’s very interesting when I give talks on Patton. A lot of times, I’ll lead with an audio clip of Patton and it just blows people’s minds because they have this popular view of George C. Scott standing in front of the American flag, big gravely, inspiring voice, “no bastard ever won a war by dying for his country,” when in fact, George Patton actually kind of sounds like Mickey Mouse. It’s one of many examples of the truth is actually in certain ways more interesting.

Richard Reinsch: (04:48)
My references here might be kind of weak. Do Americans still revere Patton in that manner of George C. Scott? I was thinking of popular culture references recently. I don’t know if this is recent, I guess these came out about 20 years ago. Band of Brothers in the Bastogne episode, it’s a very derogatory reference to Patton. They didn’t need him to rescue them. They were fine. They just sort of put him down. And then the film Ike, which I guess now is also about 20 years old, which featured Tom Selleck playing Dwight Eisenhower in the planning phase of D-Day and right up to the moment when the troops launch. There’s very derogatory reference that Ike is actually in the film because the justification of why Patton is going to be a decoy for the German Army. Where they positioned him is explained, but it’s explained as sort of a punishment in the film because Patton is a racist, Patton is a hot head, he’s arrogant and foolish. And I’ve wondered has that now become more of the Patton Americans think of?

Furman Daniel: (05:49)
I think Americans want the sanitized heroic version of Patton. I’ve been giving talks on him for five or six years now and sometimes, when I bring up his less savory side, the fact that he, like you said, was a hot head, that was a racist, an anti-Semite who at times, gambled with the lives with his men and did things that certainly would not fly today and really didn’t even fly then, people push back. When I talk to audiences, they’re like, “No. That can’t be right.” They’re arguing with the historian that has written two books on it, telling me why the movie is right and my book is wrong.

At first, I was shocked by that and then the more I’ve thought about it, I think people want that simple narrative. They want the narrative of World War II was the good war, George Patton was this kind of maverick who understood it and understood how to win and was willing to do whatever it took to win and that he rode in on a white horse, defeated the Nazis and then disappeared from the scene. And I think some of that is just people want clean narratives of history, even when history itself is rarely that clean narrative in reality. Some of that, I think, is the popular effect of books like The Greatest Generation by Tom Brokaw that again tells this sanitized version of history and then again, Movies like George C. Scott. So I wish people would get into historiography. The college professor part of me would love that, but I think people like their history to be a morality tale. They like it to be simple and Patton kind of fits into that nicely in a way.

Richard Reinsch: (07:24)
Some of the things I was reading in your book I’m now thinking about identity politics and critical race theory on campus, how long until Patton is canceled. It’s something that a lot of figures might fall into that one, too, fall into that role. But I thought Patton, we’ll see how long he holds out. So what’s the truth about Patton? Was he the natural warrior with the soul of a general or was he something else?

Furman Daniel: (07:47)
The answer is yes, he was a natural warrior and yes, he was something else. So he had a lot of talent, just natural talent. He could shoot a gun. He could ride a horse. He could read and write. He could quickly analyze an unfolding battlefield situation. He was naturally talented at best. But he also worked exceptionally hard to make that natural talent better. I have often used the analogy of nobody gets to the major leagues or the NFL without a fair amount of talent. But they don’t get there either if they don’t work pretty hard. There’s lots of talented people, there’s lots of hard working people. To really excel at that highest level, you have to be both. And as I talk about in the book, he really spent his entire adult and much of his childhood life reading, writing, practicing military art and thinking about how he’d fit into this larger picture. And then once he made history, actually manipulating the historical record so that he appeared even greater than he was. So yes, he was a natural and yes, he also worked very, very hard to build on those natural talents.

Richard Reinsch: (09:03)
Something that stands out in your book is it seems as a child growing up, his imagination was formed around being a warrior.

Furman Daniel: (09:11)
Mm-hmm (affirmative). And his parents encouraged that.

Richard Reinsch: (09:14)
It was part of his ancestral line, as well. Two men died in the Civil War, fighting in the Army of Northern Virginia that were directly related to him.

Furman Daniel: (09:22)
And his bedtime stories were about his relatives and about the American Civil War and also, about stories from primarily the Old Testament in the Bible. So it’s this odd, I mean actually kind of similar to my childhood, but stories about your relatives, stories about the Civil War, stories from the Old Testament. It was this odd mix of destiny and a morality tale and a you are part of this continuous line going back to King David of brave and virtuous warriors who made a difference. And it worked out for Patton, but in retrospect, it actually seemed kind of odd that at a very young age, you would tell kids this kind of stuff. And kind of anachronistic, as well, particularly the family’s worship of their Confederate ancestors and their glorification of The Lost Cause mythos. But yeah, it’s one of those things he was born into. He was told he was special and different from a very early age.

Richard Reinsch: (10:22)
The story of he’s attacking on… When he’s turned into an armored wagon, he loses control of the wagon and it kills some of the family’s chickens. They lived on a large ranch in California and he justified himself to his father, I think he said he was on a military attack and it just got out of control.

Furman Daniel: (10:40)
So the story is, he built a wagon into a war cart and to test out the war cart, he crashed it into his family’s chicken coop, killed a bunch of the chickens. A couple of them also ran off. He got in trouble or at least initially. His parents were about to punish him, but they asked him as good parents do before they punished him, “Why did you do this?” And he said, “Well, I was reenacting John the Blind of Bohemia’s war carts from several hundred years ago.” And they were like, “Okay. How do you know about John the Blind?” And he said, “Well I thought it was John the Blind.” And this is a very young kid, probably 5 or 6 or 7 years old. The sourcing doesn’t say his exact dates, but very young kid. I actually see this as a really interesting example. You can over-interpret it, but the example is he had already been studying military history to know who John the Blind was. He was putting it into practice by building this war cart and crashing it into the chicken coop. He got in trouble and then manipulated the historical record and created this mythical version of who he was and what he was doing to get out of trouble. And I think you see this again and again and again in his career. He worked very hard. He tried very hard. He had this natural talent and then he manipulated the historical record to make himself appear better than he was or to get himself out of trouble. So excellent that you brought that example up.

Richard Reinsch: (12:05)
It’s interesting. A lot of your book is about Patton the intellectual historian and not an amateur intellectual historian. This is someone who read widely, particularly in military history. You report he reads the Quran on the boat that is taking him to Operation Torch, it was the invasion of North Africa. Because he was going to be dealing with a large Muslim population, he wanted to get a sense of Islam for himself. He published widely in military journals and that’s one question I have for you is was that exceptional to repeatedly publish or was that expected of officers? But he did not do well at West Point. In fact, they held him back a year. He didn’t get into West Point initially. He had to go to the Virginia Military Institute. And you say at one point, a lot of people think he may have been dyslexic. So how does all of that work?

Furman Daniel: (12:59)
I in the book, like you said, I document his early academic struggle and I address this question of dyslexia. So the real answer is nobody knows. And all of the doctors and people that are credible experts say you can never diagnose somebody, a patient that you haven’t actually seen. So I purposely try to avoid making the diagnosis. My two cents, however, is he probably was not dyslexic. He probably suffered from having inadequate schooling as a child. He bounced around to a bunch of schools in California that were not particularly good. And where he struggled was in issues of foreign language and mathematics, which these school curriculums, some of the historians had gone back and looked at these elementary schools that he went to curriculums say they didn’t really teach. So no wonder he struggled when he went to a US Military Academy, which was at the time primarily an engineering school with also a very heavy requirement for the French language so that he could read Napoleon and Jomini in the original.

So I think some of his academic struggles are actually just a lack of preparation. It’s just as valid an example of an explanation of this as dyslexia. So the second par of what you said, though, was he a lifelong reader? Yes. Absolutely. He loved reading. He loved writing and that to me does not seem like somebody who’s a dyslexic. He also like you said, read things like the Quran with an eye for “what’s the practical value?” I’m about to go into North Africa and deal with potentially millions of North African Muslim as the human terrain that I’m about to go into, so I’d better learn something about it. And so he, again, on his own initiative, read the Quran on the boat to North Africa.

That was very unusual and the army in the 1910s and ’20s and the inter-war period after World War I and before World War II, was not a particularly intellectual organization. It had some very intellectual people, Patton being one of them, but overall, it was not an organization that rewarded original thought, that rewarded deep study or rewarded publication in journals like Patton did. It rewarded seniority, it rewarded spit and polish, it rewarded marksmanship, lots of other things other than brain power. So Patton was pretty unusual there, as well.

Richard Reinsch: (15:35)
You write about throughout the book his publications in military journals. But he also seems to take it upon himself at no one’s request, just on his own initiative to write long, we would say memos, about an issue and how he sees it or how he thinks the military should develop on this front based on his experience and his research. That is, to my mind, this is someone actively engaged in what he’s doing and wants to come to terms with it in the written word and then spread that to others. So this is an intellectual man wanting to communicate ideas.

Furman Daniel: (16:18)
I think that’s exactly right. The one thing I would add to that is there was a self-serving element of it. The self-serving element was “let me bring a solution to the Department of the Army so that they can see how brilliant I am.” I see that as yes, he was genuinely curious and yes, he really thought he would have an opportunity to put it into practice at some future date, absolutely. But he was also trying to show off and basically show how smart he was by solving a problem or bringing forward a solution that nobody was asking about.

Patton was interesting in that way because he was practical and romantic at the same time. He loved horses. He was one of the best riders in the United States Military and after World War I, he actually went back to the Horse Cavalry, but at the same time, he loved automobiles and he understood that automobiles and later tanks, gave mobility and in the case of tanks, protection and fire power that was a potentially war-winning weapon.

Richard Reinsch: (16:53)
There’s always high ground and low ground for him. He serves in the military at times when the American Military is very small, very inconspicuous. Before World War I when we can talk about his trip into Mexico to get Poncho Villa and then he goes… He has World War I. But he remained in the Army in the inter-war years. It was a very small force. Did he communicate how he saw the relationship of the American Military and the warrior ethos in American society as a whole, which was skeptical of large armies and was primarily about business and private life.

Furman Daniel: (17:32)
Yes. He thought about these types of questions quite a bit. Probably, if you’re looking for one single writing on this topic of how does the professional soldier fit into American society, I would point you toward his 1932 Army War College thesis, which was actually flagged as an honor thesis for the War College at the time, was circulated around the War Department. In this, he talks about this kind of tradition in the broader scope of military history between professional armies and mass armies and the strength and weaknesses of both. And then he tries to apply that to the American experience and says, “The Americans are skeptical of large armies, but they’re not so skeptical of professional armies.” And that the United States needs to overcome this. We need to build a professional cadre in time of peace so that we can use that to train and lead a mass army in times of war. So he’s writing this in 1932, a good nine years or so before America actually had to do that. And I think he puts his finger on this problem. We don’t want a military class in the United States and particularly in the inter-war period, we didn’t have the budget or the political will for a large army. So he’s trying to solve this issue which he sees as this sticky problem for the United States. How do you have the best of both worlds? So he does it, again, kind of on his own initiative. The War College made him write a thesis, but he way exceeded his mandate and wrote a lot more than they wanted and tried to, again, solve problems they weren’t really asking about. But he was so influential that it actually got the attention of people in the war department and again, showed off his intellectual fire power during those lean years in the 1930s.

Richard Reinsch: (19:21)
And trying to articulate, you said, the reason why America needed a larger army and one better trained, better equipped and it needed to have a strategy, needed to have its mind right about what it’s doing. I don’t know if he was unique in this regard. You say he highlighted the vulnerability of Pearl Harbor well before the attack.

Furman Daniel: (19:42)
Yes. So he had two different postings to the Hawaiian Islands during the inter-war period and he was the head of Army Intelligence for our forces in Hawaii on a second posting and actually repeatedly warned about the vulnerability of US Naval and Air Forces on the Islands to an attack. He got that exactly right and this is one of the less savory moments that people like to forget about. He actually in the ’20s and ’30s advocated for the interment of Japanese civilians in the event of war. That hasn’t aged well and most people don’t know about it, but he talked about the need to round up Japanese-American civilians so they could be put in a prison. So yeah, he got some stuff right. He’s got some stuff that hasn’t aged, as well.

Richard Reinsch: (20:32)
Yeah. I’m thinking also… This is something we kind of skipped over in his biography. I did not know until I read your book, he competed in the Olympics in the Pentathlon in 1912. And the Pentathlon in those days was not a track and field event. I didn’t know that, either. It was more broad: Fencing, swimming, shooting, running… I’m missing something.

Furman Daniel: (20:55)
Horseback.

Richard Reinsch: (20:55)
Horseback. And got… Was it he got fifth place? No he didn’t get… Did he get fifth?

Furman Daniel: (21:00)
Fourth place.

Richard Reinsch: (21:00)
Fourth place. That’s incredible. And you write about… I love this. I read it, the other editors, at the end of the swim, they have to pull him out of the water with a boat hook because they think he’s about to drown. He’s just expended himself. And then the same thing at the end of the run. People thought he might die. Then the fencing, he didn’t know proper defensive techniques, so he just went as hard as he could at the opponent. That to me, that’s Patton. That’s the Patton that I know.

Furman Daniel: (21:29)
It is. The Olympics were a little bit different back then and the US in particular, most of the Olympic athletes at that period were actually US Army officers. Jim Thorpe was actually kind of the exception. During that period, most of our Olympic athletes are either rich college kids or Army officers because they had to pay their own way to the Olympics and they had to train on their own. This was long before the days of Olympic training centers and stuff like that. But yeah, Patton actually wasn’t selected until a couple of months before the Olympics were going to begin. So his training program was eat raw steak and salad every day.

Richard Reinsch: (22:09)
Raw steak. That’s incredible.

Furman Daniel: (22:12)
Raw steak. And quit smoking. And then when he was on the boat over there, he ran laps on the deck and created a pool on the deck where he could swim, suspended on a little mechanical arm that dipped him down into this pool so it would hold him while he swam and keep him from moving in the small pool. But yeah, his athletic career was much like his military career, attack, attack, attack, attack, attack and the consequences, you can worry about later.

Richard Reinsch: (22:43)
In thinking about his military career, something that emerges in your book beyond a way that is intellectual history reading he brings forward and it seems to allow him to separate himself from his peers in many ways. But he also gets interested early in mechanized warfare and in the defensive measures that he’s a part of under General Pershing in the Mexico after Poncho Villa had raided a town in New Mexico, killed what 20 people? They go back into Mexico in pursuit of him and at one point, Patton leads a raid on what he thinks are part of his, I guess, posse, was using automobiles coming in four different directions, exit the automobiles and start firing. I didn’t know that story, but to me, that was the entry point for him into thinking about mechanized speed warfare.

Furman Daniel: (23:36)
Yeah. And it’s a wonderful theme because it’s this odd combination of the past of this gun battle with banditos in Mexico. Patton has his revolver and at the same time, using Dodge automobiles to rapidly surprise this safe house for the bad guys, get them and then get out before reinforcements could come. It’s this wonderful inflection point on this is old and new at the same time. It’s familiar and modern at the same time and I think that’s really interesting. Patton was interesting in that way because he was practical and romantic at the same time. He loved horses. He was one of the best riders in the United States Military and after World War I, he actually went back to the Horse Cavalry, but at the same time, he loved automobiles and he understood that automobiles and later tanks, gave mobility and in the case of tanks, protection and fire power that was a potentially war-winning weapon and despite the fact he loved horses, despite the fact he loved history and old-fashioned things, he was flexible enough in his mind to say, “You know what? Maybe the internal combustion engine, maybe armored protection, maybe some of these other things are worth me spending my time on and maybe the United States Military should get on board while we can.” So like I said, an interesting reflection.

Richard Reinsch: (24:55)
Something I took from the book is this is a man who reads Julius Cesar and reads Napoleon, so he is aware of military marshal virtues, I think, clearly and how battles have been won and yet, to me, he’s only willing to update that with technology or to see okay, how does that fit technology, the rapid, oncoming technology? He understands American business, as well, and what it can do and what it’s going to produce and how that’s going to change warfare. I thought, that sort of ability, that is an aristocratic ability he had, I think, to survey the whole and think about it.

Furman Daniel: (25:32)
Yeah. And I mention this in the later conclusion section of the book. He was lucky in that he came from an aristocratic background, knew people that were leaders of business, who owned automobiles in the early 1900s when automobiles were kind of a toy for the rich. And he also had this lucky part of his career where he just moved around and saw different parts of the country. So he saw factories in New England and New York. He saw harbors and he saw the stock exchanges in Chicago and things like that. He grew up in California and saw the ability of large farms and ranches out there, the ability to have ports on the West Coast to project power in the Pacific. He saw this and was again broad-minded enough, intellectually curious enough to look at this and see why does it matter that we can ship grain all over the world? Why does it matter that we have finance? Why does it matter that we can produce machines better than any country on Earth? And he, like you said, built that into his way of war and that was very, very, very forward thinking at the time.

Richard Reinsch: (26:40)
He had an interest in mechanized warfare. World War I, you write he’s there, but he’s dejected because he’s not in the front. He’s not in combat and he thinks that tank warfare to be his way in and a decisive way into the war. Talk about that.

Furman Daniel: (26:58)
You’re exactly right. He gets over to France very early. He’s actually one of the first American soldiers to go to France. He was on General Pershing’s staff. He had impressed them in the campaign in Mexico a couple years before and he attached himself to Pershing’s staff because he wanted to get over there as quickly as possible. He quickly got bored as a staff member for Pershing going to dinners in Paris, writing and censoring mail for the general, things like that, and he wanted very much to be part of a front-line unit and saw that he’d kind of gotten the golden handcuffs. He got over there quickly, but then wasn’t doing anything. So he was actually in the hospital and as kind of a fortuitous thing, he overheard people talking about the tank corps and then started thinking while he was recovering in the hospital from a bout of jaundice, he started thinking the tanks seem like a new potentially war-winning weapon.

They’re looking for volunteers, so this is a new space that I can create for myself and there’s not a lot of competition. And it gets me out of this admin hell I’m in attached to Pershing’s staff. So he did it partly because he saw the value of it, but partly because he was willing to gamble on it. He wanted to do something that he thought was fun. So when he applies to the tank corps, actually they ask for a written resume. So he writes about a 20-page document about why he’s the perfect person to be one of the first officers in the tank corps. He actually mentions the raid. And some of Poncho Villa’s men in Mexico said that he’s the first person in American history to lead an armored assault. A little bit of creative license, but we’ll go with it. And then gets accepted and then takes off.

He creates an American tank school. He visits the front line and actually watches British and French tanks in battle. He visits the Renault Factory and sees how French tanks are made and actually recommends new starter motor assembly and an armored bulkhead for the tanks. And again, it’s energy and insight and initiative and pushing, pushing, pushing, pushing, pushing. During World War I, he really carved out a place for himself as the expert in the United States Military on tanks.

Richard Reinsch: (29:16)
Thinking about, just moving forward here, World War II. He’s in World War II. What does that reveal? Does that finally reveal him, those experiences, that leadership as a great general? Can we print the legend?

Furman Daniel: (29:33)
I think in a lot of ways, we can. I think World War II shows that he could do what he always wanted to do, which was be a general, command large units in battle and master large-scale mobile warfare. Mexico proved he was brave and could improvise on the spot. World War I proved he could master a new technology. World War II means he was still brave, he still could use new technology and new methods of warfare, but he could do it on a much, much, much larger level.

Richard Reinsch: (30:04)
Yeah. Thinking about his role in World War II, this is borne out in the movie, there’s failure in the North African Desert campaign. There’s a pretty decisive defeat and Eisenhower relieves one general and puts Patton in his place. And that’s really where Patton gets his tremendous opportunity and he makes good on it and sort of pushes the German Army back.

Furman Daniel: (30:28)
The movie, for time’s sake kind of simplifies that, but yes, an American general, Lloyd Fredendall had gotten the frontline combat command before Patton, but in some of the initial engagements with Rommel’s Afrika Korps, most notably the Battle of Kasserine Pass, his soldiers don’t fight very well and he loses control of the battle. There are charges of cowardice on some of Fredendall’s staff against him and Eisenhower says, “Well we need somebody that can come in here quickly, get up to speed, fix this, restore morale and restore the American drive east across North Africa.” And Patton is the logical person to put in charge there. And like you said, he takes charge. He really maximizes that opportunity.

Battle of the Bulge, as I depict it in the book, is the cherry on top for Patton’s career. It puts together pretty much everything he had worked for his entire career up to that point. It’s the largest battle he ever fights. It’s the most important battle he ever fights. It’s arguably the most decisive battle he ever fights and he wins it because on the front end, he’s spent decades thinking about these types of problems.

Richard Reinsch: (31:15)
Yeah. It’s the sort of movement, isn’t it? As I was reading your book, it was the focus on moving which seemed to be, also, part of the Sicilian campaign and this desire to beat other generals to objectives is also a part of what he’s doing, it seems.

Furman Daniel: (31:32)
So yeah. I think they’re twin things. So Patton really, truly believed that movement was the way to win, that we would dominate our enemy by moving faster.

Richard Reinsch: (31:44)
It’s interesting, just interjecting here. You wrote he studied extensively the German military manuals prior to World War II. And they clearly, the Panzer movement, that was clearly speed, right?

Furman Daniel: (31:54)
Right.

Richard Reinsch: (31:54)
That’s what brings France to its knees in two weeks, so he was clearly onto something.

Furman Daniel: (31:59)
He had read things like Guderian’s famous quote that the engine of the tank is more important than the guns or the armor and really believed that. Patton’s view of warfare was if you create problems for your opponent and create confusion in your opponent’s mind through speed and movement, you’re constantly making them respond to things you’re doing. You’re maintaining the initiative and even if you’re not perfect in your own action, the fact that you’re putting friction, the fact that you’re putting problems and chaos on your opponent by moving and maintaining the initiative, means that you’ll be successful, even if on small things you mess up. He also was very much influenced by the trench warfare in World War I, where there wasn’t a lot of movement. Where it was bogged down and people were slaughtered for a couple hundred yards of movement. He desperately wanted to avoid that. So how do you avoid that? You keep moving is how you avoid that. The second part of your question, though, did he do this to make himself famous, to beat other generals, to grab more land, to capture cities before other generals did? Yes. Absolutely. It’s hard to fully separate his desire for fame and glory and headlines from his honest and genuine belief that speed kills, that speed keeps your enemies guessing and that’s ultimately the operational tactical solution to victory.

Richard Reinsch: (33:28)
I was thinking of the Battle of the Bulge, the sort of last-ditch effort of Hitler to use his army to break through allied advances. Patton is involved in this, moving what, 100-something miles very rapidly, rescuing the 101st Airborne which is in Bastogne, which is famously depicted in Band of Brothers, the series. But he’s successful and then moves forward rapidly, advances farther or fastest than the other American armies into Germany. Talk about that and how he’s successful there.

Furman Daniel: (34:03)
Battle of the Bulge, as I depict it in the book, is the cherry on top for Patton’s career. It puts together pretty much everything he had worked for his entire career up to that point. It’s the largest battle he ever fights. It’s the most important battle he ever fights. It’s arguably the most decisive battle he ever fights and he wins it because on the front end, he’s spent decades thinking about these types of problems. He has studied the German doctrine. He knew the history of German surprise attacks and he thought that bad weather would actually help the Germans, now a winter attack because it would mitigate American air power advantages. So he had thought through this and he had actually planned with his staff before the Germans even attacked, he’d planned his response. So the battle, before it even got fought was something he’d prepared for. He’d prepared his entire life for building this wonderful resume, but he’d prepared the week or so before, thinking this part of the front is vulnerable.

He has a lot of post-war difficulties. He desperately wanted to fight in the Pacific theater, but was blocked by MacArthur, who was a brilliant general in his own right, arrogant person, very protective of his own place in history. Patton then kind of asks for a transfer. He wants to go teach. He wants to either be at the war college or the commandant of West Point, but is actually denied those two jobs because technically, he’s too high of rank for those military billets. So he’s denied the jobs he wanted, actually teaching history ironically enough.

What would I do if I was the Germans? I would attack here. What would I do if I’m Patton and the Germans do that? I would counter-attack into their flank by pivoting and moving my forces over and that’s exactly what happened. He was able to anticipate what the Germans were going to do. He was able to respond to it and he was able to use his enormous charisma and energy to drive his men forward during awful weather, with low supplies, lack of food and things like that. He was able to inspire them to do wonderful things and ultimately relieved Bastogne. The folks from the Screaming Eagles, the 101, they still to this day don’t like saved, they like relieved. I actually had an editor correct me on that in the book. They said, “Yep. Don’t ever show that to the 101.” But I think it shows his ability to think, act and inspire and then win based on that. And as you said, after the Bulge, a lot of the German resistance collapses and he argues to push into Germany as fast as possible to capture territory and deny it to the Soviet Union, already anticipating yet again, a step or two in the future, what’s the Cold War going to look like? Wouldn’t we be better off if we had more of Europe under our control, the Soviet Union had less of it under theirs?

Richard Reinsch: (36:25)
Yeah. That’s a crazy thought. Patton, then we get into the post-war difficulties, though.

Furman Daniel: (36:31)
Yeah. He has a lot of post-war difficulties. He desperately wanted to fight in the Pacific theater, but was blocked by MacArthur, who was a brilliant general in his own right, arrogant person, very protective of his own place in history. In his own right, MacArthur had kind of blocked Patton from going over there. Patton then kind of asks for a transfer. He wants to go teach. He wants to either be at the war college or the commandant of West Point, but is actually denied those two jobs because technically, he’s too high of rank for those military billets. So he’s denied the jobs he wanted, actually teaching history ironically enough. He’s given the job as Military Governor of Bavaria, technical job where he’s Proconsul of Bavaria. So it’s a Roman-sounding job title. He does a mixed job there. He actually does a pretty good job of getting the local economy running. He does a pretty good job of changing Nazi street names, taking down Nazi statues and symbols from public squares and things like that.

What he does not do a good job of is controlling the narrative. So there are some German politicians in Bavaria who have Nazi affiliations that Patton refuses to get rid of or get rid of right away. This creates a public relations nightmare for Patton. He makes this public relations nightmare worse, by a series of comments, one of which compared the Nazis to the Democrats and the Republicans, saying, “Well if you want a job in Nazi Germany, kind of like being Postmaster in the United States, you need to ingratiate yourself to the local Democrat or Republican Party boss.” That didn’t go over so well. And then he had some displaced persons, many of whom were Jewish in his zone of control that had pretty abysmal living conditions, so that was kind of a scandal, as well. He ultimately gets relieved by Eisenhower for this combination of seeming to not care about the denazification, making some very ill-considered statements and then having this issue of displaced persons not being properly taken care of in his zone of control.

He’s actually then reassigned to a job that’s a pretty good job for him. He’s given command of the US 15th Army. You might ask, “What is the 15th Army?” Great question. It was an army that was originally going to be a combatant command. It was going to be an actual military force, but it wasn’t needed. We won the war in Europe faster than we could really get the 15th Army into combat. So after World War II, they tasked it with collecting information and documenting the lessons learned for the war in Europe. They put Patton in charge of that and for the last three months of his life, he actually goes and does a fantastic job yet again, writing history of World War II and indoctrinating lessons learned. And while he’s doing that, he also writes his own memoir which is published posthumously as War As I Knew It. So interesting last act. One that a lot of people don’t know about, but one that’s actually consistent with his overall approach.

Richard Reinsch: (39:43)
Yeah. It’s interesting. Of course, there’s West Point and the Virginia Military Institute and there’s those official armies, but this is someone who I don’t know, an overly bureaucratized world army training probably doesn’t emerge it seems to me. You could easily see him being stifled.

Yeah. I don’t want to make a facile comparison, but it seems to me this is someone who emerges precisely because of just the dynamism within American life and institutions of the early 20th century. Do similar figures in the military emerge today?

Furman Daniel: (40:21)
I really don’t know. It’s a question I poke at, but don’t fully answer in the last two or three pages of the book. I’m tempted to say no and I’m tempted to say no, not because the American Military does not attract fantastic talent. We really do attract fantastic talent, but largely for the reasons you said about bureaucracy and limit to what people can do now. I would also add two other things, one that we’ve already discussed quite a bit, which is Patton had a very toxic side of his personality and in an increasingly bureaucratized military, one that’s increasingly worried about the very real problems of abusive leaders, the very real problems of racial and sexual bias and things like that, I think any one of a number of his incidences would have absolutely destroyed his career.

The other thing I think and this is a unique thing about the military now, we haven’t given our junior officers and our mid-career officers time and the reason why that is, is we’ve had for the last sum of 20 years ongoing wars in Iraq and Afghanistan, where we’ve given people lots of deployment opportunities, we’ve given them lots of combat experience, but we haven’t given them time to read. We haven’t given them time to think. We haven’t given them time to write. We haven’t given them time to decompress. The mobilization schedule has been so hectic that I really wonder if we develop the intellectual side of our military the way we could or should or would.

Richard Reinsch: (41:58)
Well yeah. One could argue that this deployment schedule you’re referring to is itself the result of a lot of static thinking.

Furman Daniel: (42:04)
And it’s worth mentioning, the officers that are seen as the intellectual elite recently in the military because people like David Petraeus who is a Rhodes scholar at Oxford. People like John Nagl, again a Rhodes Scholar, people General Deptula for the Air Force. They came up a decade or so before, right? So they had most of the ’90s. They got their combat done in the early ’90s in Gulf War I and then they had a decade to train. They had a decade to go to school. They had a decade to think and write and go do these types of things. So Petraeus, H.R. McMasters of the world, people like that, maybe are the last kind of generation that has had that time.

Richard Reinsch: (42:47)
Yeah. Something to think about. Furman, thank you for joining us and for discussing your new book Patton: Battling With History.

Furman Daniel: (42:56)
Thank you very much for having me, Richard. It was a really fun time.

Richard Reinsch: (43:00)
This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

Will We Be Sino-formed? Apr 05, 2022

Hello, and welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with David Goldman about his new book, You Will Be Assimilated: China’s Plan to Sino-form the World. David Goldman is the author of the widely read Spengler column for the Asia Times. He’s an award-winning Wall Street strategist. He’s worked for Credit Suisse. He was the head of global trading research for Bank of America. And he was an investment banker for a Hong Kong boutique called Reorient, which was purchased by Jack Ma, founder of Alibaba. He also is widely read and published in foreign policy and national security. He’s advised the US National Security Council, the Department of Defense, and institutional investors globally. He’s the author of a number books, including most recently, How Civilizations Die. David Goldman, welcome to Liberty Law Talk.

David Goldman:

Thank you so much for inviting me, Richard.

Richard Reinsch:

David, on your book, two items from China everyone is discussing, and I know that they in some way feature into what you’ve written. First, China’s move to encroach upon, if not eliminate, the semi-autonomous zone of freedom given to Hong Kong. Recently, the British government has offered to every Hong Kong citizen, I’ve read, a passport or some sort of regularized status in the United Kingdom. Your thoughts on what China is doing there?

David Goldman:

Hong Kong has never been a Chinese city. It was a British city. It was founded by the British at the beginning of the opium trade. The majority of its population never wanted to be Chinese. So I think the biggest mistake Margaret Thatcher made in her glorious career was to cede Hong Kong and Kowloon to China when she didn’t have to. Most of the Chinese population hasn’t liked this. There is a significant independence movement in Hong Kong. From the Chinese standpoint, China’s like a Roach Motel. Once you go in, you don’t get out. The Chinese are always terrified that if one rebel province can secede, they’ll all secede. So they will use whatever measures they need to prevent that. Their solution to this long term is going to be a population tragedy. A lot of the Hong Kongers who don’t like living under Chinese rule will leave. They’ll go to Taiwan, Britain, Canada, some to the United States. More and more people will migrate to Hong Kong from the mainland, and eventually it will become a Chinese city.

Richard Reinsch:

So your thinking there, what China stands to gain is really consolidation. They’re worried about the sinner pulling away from the country in some way, or people seeing Hong Kong be successful, operate on its own, without Chinese authority or control.

David Goldman:

Well, it’s worried about secession. There is a significant secession movement. And the most important thing that’s happened with the new national security law is that it has become illegal, seditious to talk about secession. So a lot of the pro-Taiwan, anti-Beijing protestors have simply left the island and will never come back. Remember, China is not a country. We tend to think of it as a country. It is a heterogeneous empire with 200 languages spoken in 90 major ethnic groups, and always at risk of falling apart. The Chinese Empire, whoever runs it, whether it’s called an Imperial Dynasty or a Communist Party, lives in terror of a rebel province that will encourage other rebel provinces. So that’s why China will go to war over Taiwan. It will never allow Taiwan independence without a real fight. It has a good deal to do with why China is being so aggressive in the South China Sea.

Xi Jinping told this to Barack Obama during the APEC summit in 2015. There’s an old Chinese proverb: kill the chicken while the monkey watches. Well, the South China Sea is the chicken, and Taiwan is the monkey here. China is saying, “We’re willing to go to war over a bunch of empty atolls based on some glorious old map. Think of what we’ll do with Taiwan. Think of what we’ll do with Hong Kong.” So that’s China’s method of governance going back thousands of years. Sadly, there’s a continuity between what was always a very heterogeneous set of men who has a very cruel empire and what the Chinese are doing today. This is based on traditional Chinese governance. It’s not per se a function of Marxist-Leninist ideology.

The West has underestimated Asians for the past century and change. The Russians underestimated the Japanese during the 1905 war. The British underestimated the Japanese at Singapore. The French underestimated the Vietnamese at Dien Bien Phu. And I think we can say fairly that the American military in the ’60s underestimated the North Vietnamese Army. We simply have difficulty believing that a culture so different from ours, and one that was so impoverished and humiliated for such a long period of time could come back so quickly.

Richard Reinsch:

On another front, something else people are discussing widely right now is a video purporting to show Uighur Muslims, who have been persecuted by the Chinese government for years, being loaded onto train cars to be sent to concentration camps. That’s widely believed. There was a fascinating segment the other night on BBC, where the BBC commentator presented this video to the Chinese Ambassador to the United Kingdom, who was literally speechless and had nothing to say. I mean, it was sort of a fascinating interview. What’s going on here from the Chinese standpoint, and what they’re doing to this population?

David Goldman:

Every Chinese I’ve talked to, ranging from senior officials of the Foreign Ministry to taxi drivers, when asked, “What are you going to do about the Uighur problem,” has said, “We’re going to kill them all.” China has had a policy of exterminating what it considers unruly barbarians on its borders for a very long time. Their attitude towards the Uighurs is that they don’t want to assimilate into China. You get the traditional Chinese choice, which is column A, you become Chinese, column B, we kill you all, and there isn’t anything on the menu. I don’t have detailed information about what’s happening in Xinjiang Province to the Uighurs. It’s impossible to get reporters in. The Asia Times is not able to send correspondents in like the rest of the world press. However, the suppression of the Uighurs through forced sterilization, forced use of birth control, cultural suppression amounts to a slow motion ethnocide. In other words, an attempt to extirpate this culture entirely. So putting Uighurs in concentration camps would not surprise me. They’ve already put between one and two million Uighurs through reeducation camps. From a Western standpoint, this is repugnant and brutal. From the standpoint of the vast majority of Chinese, it’s business as usual.

Richard Reinsch:

That’s incredible. You write about the transformation, the economic transformation that has happened in China. I welcome you to talk more about that. The way they’ve brought hundreds of millions of people from the rural countryside into their cities, the tremendous growth of Chinese cities, and their economy, their technological transformation. Why did American policymakers for so long underestimate China?

David Goldman:

The West has underestimated Asians for the past century and change. The Russians underestimated the Japanese during the 1905 war. The British underestimated the Japanese at Singapore. The French underestimated the Vietnamese at Dien Bien Phu. And I think we can say fairly that the American military in the ’60s underestimated the North Vietnamese Army. We simply have difficulty believing that a culture so different from ours, and one that was so impoverished and humiliated for such a long period of time could come back so quickly. But you look at the economic miracle of South Korea, you look at the transformation of Japan from a rural society in the 1860s to a major industrial power by the beginning of the 20th century. China’s rise is not at all without precedent. We saw the same kind of thing in Japan and Korea before.

The difference is that China has 1.4 billion people. As you mentioned, they’ve moved in the past 35 years nearly 600 million people from countryside to city. That’s the equivalent of the whole of Europe from the Ural Mountains to the Atlantic Ocean. Imagine building a new Glasgow, a new Rome, a new Lisbon, a new Helsinki. Build every city in Europe to accommodate that many people. That’s the biggest economic transformation in history. I don’t know if it’s the fastest. But I calculate that per capita household consumption in China has risen nine times, 900% in the past 30 years. That’s one generation. When you talk to Chinese, they’ll tell you, “Well, I grew up with a dirt floor and an outhouse and an outside pump. Now, my kids have indoor plumbing and central heating and a car.” It’s a completely different kind of world. So however brutal and repugnant the Communist Party of China has been, the economic accomplishments of China are real. Walk around Chinese cities. I urge people to just go onto YouTube and look at tours of Chinese cities that you’ve never heard of: Chengdu, Chongqing, Hefei. Names that you don’t know. These are cities of 30 million people that look like science fiction movie sets that were third-world backwaters just 20 years ago. This is an incredible transformation, and the energy and intelligence of the Chinese people is impressive. I am not a panda hugger. I’m not a Sinophile. I don’t like Chinese culture. I find it brutal, and from a Western standpoint, in many ways repugnant. But it’s nonetheless impressive, and underestimating it would be a terrible error.

Richard Reinsch:

Yeah. So if we think about the standard post-Cold War view of our elites, bipartisan, that has this middle class forum which you’ve just described, as the wealth grew, there would be this just natural desire for democracy or some sort of civil society rule of law to form. That hasn’t formed. It’s evident, as you know, that we’re moving from that post-Cold War view. Help us think more about … Help us understand China. Help us understand maybe their thinking about who the human person is. Because that seems to me interesting alone in how this has not produced any sort of desire for more freedom.

So the Chinese have no experience of self-governance. In place of democratic governance, you have a selection of supposedly the smartest people, or at least the best exam takers in the country. Imagine if the United States were ruled by a committee of National Merit Scholars, that was a self-perpetuating elite run by exams.

David Goldman:

Well, there are three things to understand about China, what makes China China, that go back literally 5,000 years. One is its enormous wealth and population are based on fertilized river valleys which could produce eight times the caloric content per acre with rice that Western European or Middle Eastern cultures could produce with wheat. So enormous wealth, but also enormous susceptibility to flooding and famine. So massive infrastructure to control floods has been the foundation of the Chinese Empire. When we look at things like the $2 trillion Belt and Road Initiative where China proposed to build infrastructure all across the Eurasian continent and basically lock it in to the Chinese Empire, that is the old Chinese imperial model extended into an external policy.

The second thing to understand about China is imperial bureaucracy. For thousands of years, the smartest kids in the provinces that sat and taken an examination to become government officials, used to be called the mandarin system. You can see pictures from over 2,000 years ago of young Chinese sitting in an examination hold taking the mandarin exam. This is now the university entrance exam, the Gaokao, which is taken by nearly 10 million Chinese every year. About six out of 10 of whom get to go to university. If you look at the math questions on that, I doubt one in 500 American high school seniors could answer them. I know a little math, and they made me sweat.

The third thing to understand is family. Chinese society is based on the extended family. It’s hierarchical. The emperor is like the big pater familias of the nation, and he has smaller pater familiases under him. The foundation of the Chinese economy has always been an extended family farm led by one pater familias. So you’ve never had a civil society where people have peers. No Chinese has ever sat on a school board or a little league committee. Everything’s always come top down. There’s no sense of rights and obligations as we have under Roman law, no sense of the divine spark of the individual as we have under ancient Hebrew law. What you have is a set of loyalties to hierarchy. That, in a thumbnail, is what Confucianism is about.

So the Chinese have no experience of self-governance. In place of democratic governance, you have a selection of supposedly the smartest people, or at least the best exam takers in the country. Imagine if the United States were ruled by a committee of National Merit Scholars, that was a self-perpetuating elite run by exams. They’re awfully smart. The system is in many ways awfully inefficient. But they’re not stupid, and they’re incredibly ambitious. They’ve never liked their emperor. The emperor in China is just the capo di tutti i capi. He’s the guy who’s there to prevent the underbosses from killing each other. That’s exactly what they do when there isn’t a strong emperor. So the Chinese tend to like having a strong emperor because in their experience, when you don’t have one you have civil war, war widows, and you lose 10 or 20% of the population.

Richard Reinsch:

You said something in the book that stuck with me, and I wonder if you can elaborate on it. You’re touching on it here. The Chinese don’t have friends.

David Goldman:

Well, they don’t have friends in Aristotle’s sense of political friendship where you have a peer group that governs a city, and you have to form friendships in order to solve governance problems and advance policies. Everything in China comes from the top, so the Chinese tend to kiss up and kick down. You don’t question the order that comes down from the top because it’s bad for your health. You could become a kidney donor real fast. And the people below you, you simply tell them what to do. You’re the pater familias. They owe you loyalty. You’re supposed to be benevolent under Confucian philosophy. But in fact, you have absolute control. As I’ve said, there is no subsidiarity. There is no civil society structure. Everything is up and down as opposed to parallel. So the Western concept of political friendship, which was first enunciated by Aristotle, is something which the Chinese simply have never experienced. It’s also a winner-take-all system. There are only a certain number of places. So you have to look to your left and right when you’re in second grade, and decide who you’re going to step over to get ahead.

Richard Reinsch:

So listening to you describe China, it’s almost as if our foreign policy consensus in the post-Cold War period was at odds with reality, at odds with their cultural, economic, political reality. I mean, it sounds absurd that we thought this.

David Goldman:

Richard, I agree with you. The whole idea that China was going to evolve into a Western style democracy simply because they got more prosperous ignores the fact that this is a culture that’s been around for 5,000 years, which operated radically differently from Judeo-Christian cultures. This is the purest form of paganism.

Richard Reinsch:

Yeah, it’s incredible.

David Goldman:

It is. Well, the Chinese are probably the least spiritual people in the world. They believe in fate and themselves. When you say, “Well, what’s Chinese religion?” Well, you can say that there’s Buddhism, there’s some Daoism, there’s some household gods. But the Chinese really are down-to-earth pragmatic. How do I advance my family? How do I get rich?

Richard Reinsch:

On this point, in the book you say China has no desire for war or military confrontation with America. It does desire global economic domination in many respects, and I want to talk about that specifically. One point you make is their technological prowess matches ours, if not surpassing us in quantum computing now. Their ability to deploy the coming generation of 5G technology surpasses America’s, or anything a Western corporation could offer. How did that tech superiority or equality emerge so fast?

David Goldman:

Well, we got very complacent after we won the Cold War. We decided we were so powerful that we could rest on laurels and coast. We could, under the Clinton administration, turn NATO into a responsibility to protect kind of social work organization. Or the George W. Bush, we could go out to support democracy to the world. I think that was a big mistake. I very much agree with President Trump in his criticism of that kind of policy. With the Chinese, they watched what happened to the Soviet Union in the 1980s. They saw the United States created technological miracles that no one could have imagined. We created the digital age, the fast microchip, optical networks, plasma displays, the internet, graphic user interface. Everything that goes into modern economy came from America’s commitment for superiority over the Soviet Union, Defense Department funding of public-private partnerships with US corporations. Chinese watched this, and they learned. So China is attempting to emulate what the United States did in the 70s and 80s as it won the Cold War. It has a vast budget for public support for advanced technologies. China’s idea is that there’s going to be a fourth industrial revolution. That industrial revolution is going to be based on artificial intelligence. And whoever controls the porting and storage and processing of data is going to run the world, because that’s going to allow you to have industrial robots talk to each other and automatically program themselves in flexible manufacturing. It’s going to allow artificial applications to medical diagnoses based on analysis of billions of people’s digitized medical records, DNA, and daily upload of vital signs into the computer cloud. It’ll be based on autonomous driving vehicles, detailed analysis of consumer behavior. And 5G internet is kind of like the railroad in the 19th century, which was the carrier for all these other technologies that made them possible. They want to dominate that, and they want to dominate the industrial applications. They saw the United States dominate the third industrial revolution, the computation revolution. They want to dominate the artificial intelligence revolution.

Richard Reinsch:

The Chinese government invested a lot of money in this technology itself with the idea that the spinoffs, the entrepreneurial creativity and how those would be deployed in various ways would come, but they wanted to beat us in this technology front. You argue they’ve largely succeeded.

David Goldman:

The Chinese People’s Congress, at the end of May, just approved a $2.2 trillion five-year technology budget for any number of things. I mean, 5G itself, the Chinese are spending, according to a study by Deloitte, three times what we spend per capita on 5G. They’ll have the fastest rollout. They also are the biggest market for robotics in the world. The last I saw, their robotic purchases have gone up 25% year on year. And the chief technology officer of Huawei, whom I interview in the book You Will Be Assimilated, explained to me that with 5G and artificial intelligence, you can get a bunch of industrial robots in a factory floor, give them an assignment, and they will work out autonomously a production process that human engineers wouldn’t come up with, in a tiny fraction of the time. So the implications for manufacturing productivity are just staggering. You add that to medical diagnosis. I mean, let’s say you’ve got hundreds of millions of digitized medical records and DNA, and you have a smart phone that takes your blood oxygen content, your temperature, your blood pressure, and so forth with attachments. And with these hundreds of millions of people, in real time, uploading their vital signs into artificial intelligence services run by servers run by Huawei. What’s already happening, Richard, is that every pharmaceutical company in the world is setting up shop in China because the data the Chinese have is a vast mine for researching new drugs, interactions, genetic defects, and so forth. The Chinese computer scientists aren’t any smarter than Google. I think Google’s probably the best computation company in the world. But if you think of artificial intelligence as the engine, data is the fuel. And China, where there’s no guarantee of personal data protection, has the biggest trove of data for medical research in the world.

Richard Reinsch:

On the question of Huawei, which you write about compellingly in the book, and in this interview you’ve mentioned. Their position versus, say, Silicon Valley. Because we always think Silicon Valley has the best technology, the best creativity. Capital is flowing to the best opportunities, those with the best ideas. And there’s Huawei out here which seems to be in position to supply all of Europe with 5G, if not many other countries around the world. Where are we on this? I take it we have the technology. It’s just what? The ability to deploy it or implement it?

David Goldman:

Well, starting about 20 years ago, American technology companies decided that they were much better off in terms of share price by letting the Asians do the manufacturing. Not just China, but also Korea and Japan and Taiwan. Now, to some extent, Vietnam. Let the Asians do the dirty work, and we do the software. Software, if you’re successful, has incredibly high return on equity, because the marginal cost of adding a customer is zero. They just download the software from the internet and pay you. So a company like Cisco, which used to dominate the hardware for internet routers has basically gotten out of the manufacturing business entirely. There was a report in The Wall Street Journal a couple of weeks ago. It mentioned that the US government, specifically Larry Kudlow, the head of the President’s Economic Council, had gone to Chuck Robbins, the CEO of Cisco, and said, “Well, why don’t you go and buy another big telecommunications equipment manufacturer? Go buy Ericsson so we would have a national champion to compete with Huawei.” And Robbins told him, “Cisco’s not in the business of buying low-margin companies.” In fact, Ericsson’s return on equity is a fraction of that of Cisco. So if they did that, Cisco’s stock price might go down. The problem is not so much that we don’t have smart people. It’s that the US tech sector made a conscious decision to become dependent on China for the production of hardware. And of course, the Chinese, who excluded Google and other US companies from the Chinese market, has spent vast amounts of money developing their own software, their own computation, and are now in position to compete with us in the software field, as well. I think this was terribly short-sighted. But I don’t want to entirely put the blame on the tech companies because in Asia, capital-intensive businesses are subsidized the way we subsidize sports stadiums. We don’t have that kind of subsidy in the United States. So to some extent, we are running according to an industrial policy which steers people into that kind of choice. The problems is it’s not our policy. It’s China’s industrial policy which is guiding our investment decisions.

Richard Reinsch:

So just thinking about that, I mean, you and I are both students of free market economics, understand those arguments well. Let’s just play this out, though. Is it not the case though, that in subsidizing these things and having incredible government directed investment, that the technology over time is deficient? Or that resources themselves aren’t being well-utilized and, say, the Silicon Valley sector should over time find the highest and best uses, not only for capital but technology itself?

David Goldman:

I think China’s system is extremely vulnerable because any kind of top-down system tends to make very bad choices, but there are certain kinds of subsidies which stood us in good stead in the past. I think the right division of labor is the key. For example, under Reagan we spent about 1-1/4% of our gross domestic product on federal support for R&D. What that meant is that RCA Labs and GE Labs and IBM Labs would get a research grant from DARPA, and they’d do basic research. Bell Labs, their people won Nobel Prizes doing things there. That produced things like the semiconductor laser, which made optical networks like cable television possible. Produced fast and light computer chips, which made look-down radar in F-15s possible. The US government did not build enterprises. It subsidized the basic R&D, but it let the private sector take the risk of commercialization. Now, to some extent, the Chinese have tried to emulate that. If you look at the National People’s Congress, the entity which just passed this $2.2 trillion technology investment budget the end of May. In that People’s Congress, there are 100 billionaires. The different between the Chinese and the Russians is the Russians said, “You’re a good engineer. Have a good invention. We’ll give you the Order of Lenin and maybe a dacha.” The Chinese say, “You’re a good engineer. Produce a good invention. We’ll let you do an IPO in the Shanghai Market and become a billionaire.” So to some extent, the Chinese have combined that kind of incentive into their system, and let a lot of people take private sector risk. It’s sort of a mixed thing. Now, I believe that American ingenuity and the American system, if it’s unleashed, can do a lot better than China. I saw this in the 1970s and 1980s when I was a very young man. In the late 1970s, everybody thought Russia would win the Cold War. The Russian economy was doing wonderfully, and the United States was a declining power. Reagan came in. By 1982, it was clear that the United States would win a conventional war, and the Russians weren’t too sure they wanted to fight a nuclear war. That was the beginning of the end for communism. We turned them around in a very short period of time.

Richard Reinsch:

You used the word unleashed. What’s leashing, say, America’s tech firms now?

David Goldman:

If you look at what our kids are doing, we graduate, I think, about 40,000 mechanical engineers a year. That’s not half what Germany does. A tiny fraction of China. The smartest kids aren’t going into manufacturing because the smartest companies aren’t investing in manufacturing. Really ambitious kids at US universities want to either go with a software or a Goldman Sachs, so they study mathematical finance or computer science. The danger is we end up being, if you pardon the expression, geeks in a new Roman Empire. I think we need a very strong signal from the government, including very strong tax incentives and, in rare cases, subsidies for manufacturing investment. We have to get our best talent thinking about manufacturing, particularly the kind of artificial intelligence, computer-driven manufacturing, which the Chinese call the fourth industrial revolution. We need to restore the level of federal support for R&D that we had under Reagan and under Kennedy. We need to get US corporations to understand that their future depends on the future of the United States, and they have to put the kind of effort into R&D that they did back when Bell Labs was the wonder of the world. Nobody knows what happened to Bell Labs. Well, it still exists, because Nokia bought the assets of Lucent. It’s now called Shanghai Bell. It’s sitting in Shanghai, and Nokia employs 16,000 Chinese scientists and engineers in China doing research there. That’s our problem.

Richard Reinsch:

It’s interesting. You’re saying this is a national security exception to markets and we just need to draw that line, and the government has to step in in various ways to push things forward because the market itself isn’t, or American companies operating in the market aren’t recognizing this problem.

David Goldman:

There are always things government does for the general welfare, and promoting science and engineering research, basic research, is something the government legitimately can do. I don’t like the idea of the government picking winners. That always lead to corruption and cronyism and inefficiency. Entrepreneurs will take risks, but it’s hard to get entrepreneurs to take risks on the unknown unknowns, when you’re talking about something where the science isn’t yet established. When we talk about Bell Labs in the past producing Nobel Prize winners, it’s because they did basic science. Texas Instruments in 1958 invented the integrated circuit. That was basic science, and that happened because you had federal support for that. So I think there’s a legitimate basis for that, but there is a real world out there. We’ve got competitors. So to the extent that the Chinese have tilted the pool table by producing massive subsidies for capital-intensive industries … Not just the Chinese. Koreans and Japanese, as well. That’s the Asian model. We have no choice but to respond in kind in some cases. As much as I’m an old supply sider or old free marketer, our economy is being guided, as I said, to a great extent by somebody else’s industrial policy. We have an industrial policy like, “They’re not the problem. It’s not ours. It’s China’s.”

Richard Reinsch:

It seems to me also in this regard, and I don’t know what your thoughts are. Marco Rubio favors an industrial policy. This seem to be much more about bringing manufacturing jobs to America, and that’s a key element of it. I guess my fear is that actually doesn’t do what you want to do, which is advance science and research in order to push technological bounds with likely commercial applications. It seems to me this is more of a, “Well, we just want to bring the past back.”

David Goldman:

Richard, I share your views. I wrote a response to Senator Rubio’s paper, which I thought was a good contribution to the debate, on the website of Claremont, The American Mind. I said you have to treat these problems as different. If you want to make a case for promoting industrial employment because it’s a good thing for American workers, make that case separate. But we also have a national security issue, which has to be pursued on its own merits. If you lump these two things together in an overall industrial policy, you tend to get into a pinata grab for funding by people. Congressmen who want money for their district, and industries who want subsidies. We have to distinguish very carefully what the policy objectives are. Clearly, it can’t bring the past back. And in fact, the best kind of manufacturing, the kind that really could reshore efficiently American production is going to be very capital intensive. It won’t involve a whole lot of workers. If you look at the pinnacle of manufacturing today, that’s chip production. That involves 10 different processes, each of which is incredibly complex and involves massive amounts of investment. A new chip foundry costs about $20 billion and employs a few hundred workers. So what we have to figure, is that if we have a massive increase in productivity, that’s going to lead to all kinds of spinoff. Take the optical network. One result of that is we created hundreds of thousands of jobs in building out the cable TV industry. Building out cable created a massive surge in employment, and well-paid employment. There weren’t a lot of people employed produced in the lasers that went into the optical networks, but the secondary effects created a vast number of jobs.

Richard Reinsch:

Okay. Yeah, well said. Thinking here, you’re aware of this as well. I just want to go through, because there’s also a counter argument or counter thinking to your position on China, that the country may be more brittle than we might think. I want to get your response to those. Thinking about the Belt and Road Initiative, you’ve written a lot about that. What’s China doing there? But then also, is it not just sort of massively overextending itself and eventually creating a lot of debt problems? Basically, it’s just not going to recoup the gains that it’s invested.

David Goldman:

China has some serious problems. The Belt and Road Initiative has been very poorly done. Chinese really don’t have the expertise in dealing with a lot of countries where they’ve thrown a lot of money around and created a lot of white elephant projects and a lot of bad debt. They do have $3 trillion worth of foreign exchange reserves, and they do have a current account surplus. With that kind of starting position, you can afford a number of mistakes. But I think the Belt and Road has been, in many ways, a disappointment in some ways, in other ways it hasn’t. If you look at Southeast Asia for example, that’s 600 million people. China’s imports from Southeast Asia have just exploded. Southeast Asia has become a source of not just cheap raw materials, but cheap manufactured goods for China. As the cost of labor has gone up in China, they have substituted cheaper labor in Southeast Asia.

And as the Chinese labor force has ceased to grow, the Chinese population is stagnant, they’ve managed to integrate into the Chinese economy the labor of hundreds of millions of people in Southeast Asia. So it’s a very mixed picture. In terms of China’s debt profile, China’s debt to GDP is about the same as the United States. The difference is that government debt is much lower and corporate debt is much higher. Look at the corporate debt levels. They’re staggering. A lot of people have said, “Gee, aren’t they all going to go bankrupt?” Well, we did a study of this at Asia Times. The thing about China is that infrastructure has been the key to Chinese productivity growth, and the cost of that infrastructure was placed on the balance sheet of state-owned companies.

So the majority of corporate debt is related to building railroads, building oil refineries, building airports, building roads, harbors, and so forth. That shows up as corporate debt simply because you have state-owned companies doing that instead of having a municipal corporation that issues municipal bonds and builds the infrastructure. It’ll go onto the balance sheet of Shanghai Pudong Development Corporation, which does ports, or China Petroleum, or China Tower, which builds towers. So a lot of that debt is infrastructure related. Although it looks like a lot, it’s fairly sound. Now, where the Chinese have a serious problem is in the housing market. In the United States, the average cost of a house is four or fives the annual income. In China, 10 to 20 times the annual income, depending on the part of the country. Now, Hong Kong is 50 times. That’s because the savings of the Chinese people have gone overwhelmingly into houses, because they’ve never trusted the stock market. That’s viewed as a casino.

So housing prices are excessive. If they go up much further, people won’t be able to buy a house. If they go down, you wipe out the savings. So very carefully, the Chinese government is trying to shift household assets away from housing into the stock market, and make it better regulated and less a casino-like entity. That’s a significant problem. They’re trying to address it. That could lead to a major issue for them. Now, typically, countries that have current account surpluses … In other words, they’re not dependent on borrowing money from overseas. They’re not lenders to overseas … and very high savings rates and have economic growth don’t have unmanageable crisis. They have adjustments they can deal with. China has a current account surplus, a 44% national savings rate as opposed to about 18% in the United States.

Richard Reinsch:

I’m surprised it’s that high.

David Goldman:

Vast savings rate. High. That’s households, corporations, government. Very high savers. And it has economic growth. So the idea that China is going to have an unmanageable financial crisis as opposed to some painful adjustments here and there is, in my view, highly improbable. There’s simply no record of a country that has those three criteria getting into really crippling financial problems.

I don’t believe China’s demographic problems are going to hold them back massively. However, if China doesn’t fix them, China will go into a decline towards the end of the 21st century.

Richard Reinsch:

Talk about how is capital deployed in China? I mean, is there this idea of a market of winners and losers, and it happens apart from state direction or state funding or financing. I mean, describe that process for us.

David Goldman:

Well, for most of the past 30 years, 40 years, capital in China has come from state-owned banks. A state-owned bank is basically a bureaucrat with a shovel standing next to a barrel of cash, waiting for a state-owned company to come along with a bucket, and he shovels some cash into the bucket. So even though you have this clever mandarin caste composed of the top exam scores in the country directing the investments, and they’re not stupid people, massive inefficiencies have cropped up in that. Increasingly, China is trying to use equity markets as source of financing. For example, Semiconductor International Corporation, SMIC, China’s biggest chip foundry, just did an IPO for tens of billions of dollars at a value that’s now tripled in the mainland markets.

Ant Financial, which is the biggest consumer payments company in the world with 900 million customers. That’s Jack Ma’s big company. Ant Financial is going to come to market and do an IPO for, I think, $40 billion, which would make it the biggest IPO in history. So there is a significant amount of money which is being channeled into new enterprises, new technologies through equity markets. That’s what China is trying to do. Now, of course when you allow the markets to make decisions, that is a certain kind of democracy. That gives the public a certain kind of veto on government policy. Because if they don’t like your policy, they don’t have to buy securities. Same with bonds. So that does mean a certain kind of concession of power away from the center to the public on the part of the Communist Party, and they’re trying to make that concession very carefully and very gradually.

By the way, one of the reasons they’ve invited American financial companies into China is to help them do that. Companies like J.P. Morgan and Goldman Sachs and Morgan Stanley now have wholly owned subsidiaries in China. The banks that are expected to manage this Ant Financial IPO, biggest IPO in history, are I believe Goldman Sachs, Morgan Stanley, and J.P. Morgan. So America’s financial sector is being given a huge incentive to help the Chinese government accomplish exactly this transition, and they’re very eager to do that.

Richard Reinsch:

Interesting. Thinking about other observations. One, you’ve mentioned the aging workforce, but also birthrates, demographics. How do you see China trying to surmount those problems that it presents long term?

David Goldman:

China traditionally had a high birth rate. Children were the most valued possession. China imposed, 40 years ago, a one-child policy, which is the cruelest demographic policy since King Herod or Pharaoh. It forced people to have only one child. Of course, the result is that China’s population growth is old. Its workforce has stopped growing. And it’s said, “Well, now you can go ahead and have two children.” It doesn’t appear that the population is responding very quickly to this incentive, partly because China created a set of winner-take-all incentives in which the average family will spend the equivalent of a year’s income in tutoring fees so their one child can get ahead in the university system, can get the brass ring. So whether the Chinese population will get out of this hole or not, is not clear. As I mentioned, a great deal of the motivation for the one belt, one road policy is for China to lock in the available pools of usable labor around the world, of which the biggest is the 600 million people in Southeast Asia. They’re not necessarily the biggest pool of labor. There are more people in Africa. But if you want to find people who will show up to work on time, follow instructions, and be able to read the users manual, that’s Southeast Asia. So to some extent, that will buffet.

For the next 20 or 30 years, which will be the critical years for us, I don’t believe China’s demographic problems are going to hold them back massively. However, if China doesn’t fix them, China will go into a decline towards the end of the 21st century. That, however, will not be soon enough to bail us out. So although it’s something to watch carefully, I don’t think we can count on China going into a demographic winter that’s going to cripple them as a strategic rival in the kind of time horizon that we really care about.

Richard Reinsch:

We should see them as a rival. Not as an enemy, not as an ally, but as a rival.

David Goldman:

It’s like meeting a tiger in the jungle. A tiger isn’t wicked. It doesn’t hate you. It just looks at you and thinks protein source.

China is the old pagan world. The concepts of good and evil don’t exist in the same way they exist in the Judeo-Christian worlds. Loyalty and obligation substitute for good and evil. So we will never be friends with China. It’ll take a very long time, if ever, for China to decide that the Judeo-Christian concept of human society is superior to theirs. They’ve been around for thousands of years, and they change very slowly. Our system is better. I believe in the sanctity of the individual as the highest good in society, and that’s entirely absent from the Chinese system. But the Chinese idea of, “Let’s have a meritocracy of the cleverest people who run everything from the top,” occasionally does better than the messy brawl of democracy, and unfortunately.

Richard Reinsch:

Yeah, and I’ve been mentioning China’s weaknesses. We need a whole other podcast to mention our weaknesses, which are glaring and evident to all right now. In many ways, to even take seriously what you’re proposing requires a great effort on our part.

David Goldman:

Well, we did this before. We worked miracles when we beat the Russians in the Cold War, when we beat them in the Space Race, when we beat the Axis powers with the arsenal of democracy. America’s capacity, for a generation, has astonished the world before. But I really think we have to understand that this is a lot more serious than we’ve been telling ourselves, and we need to say goodbye to a lot of self-consoling illusions about where we stand in the world. This is the biggest challenge we’ve ever faced.

Richard Reinsch:

Wow. David Goldman, well said. We’ve been talking with the author of You Will Be Assimilated: China’s Plan to Sino-form the World. Thank you so much.

David Goldman:

Thank you so much for the conversation, Richard. It’s always a pleasure.

Conservative Nationalism and American Statecraft Mar 15, 2022

What does conservative nationalism mean for American foreign policy, immigration, trade, and other international commitments? Colin Dueck, author of the new book, Age of Iron, discusses these questions in this edition of Liberty Law Talk.

Richard Reinsch: Today we’re talking with Colin Dueck about his new book, Age of Iron: On Conservative Nationalism. Colin is professor at George Mason University’s Schar School of Policy and Government. He has worked as a foreign policy advisor on several Republican presidential campaigns. He’s been a consultant for the State Department and Defense Department. He’s also the author of a number of other books including Reluctant Crusaders, Hard Line, and The Obama Doctrine. Professor Dueck, welcome.

Colin Dueck: Thank you, Richard.

Richard Reinsch: So thinking about this book, Age of Iron. I thought it was an interesting title, because of what we commonly associate, another phrase, blood and iron, or iron and blood to a nationalist of sorts, German Chancellor Otto Von Bismarck who said that blood and iron would displace parliaments and parliamentary procedures. The title of your book, Age of Iron, I don’t think was meant to recall that.

Colin Dueck: Well that’s right. Even though I often do ask myself what Bismarck would do in any given situation. But the term age of iron is from an ancient Greek myth that suggests that history can go down rather than up. In other words, you can have decline or decay over time. And so the reason I chose it is that I do think there was actually a kind of golden age of liberal internationalism, but that was a long time ago now, that was in the 1940s in my opinion. And so it’s been generations since that time. And so in a way, Trump, I think the Trump phenomenon is kind of an effect more than it is a cause of a number of long-term problems, or conditions including, for example, frustrations over globalization, and whether they benefit working Americans. Frustrations over military interventions that don’t seem to have successful and conclusive endings. Frustration over national sovereignty that seem to leave decision making further and further out of touch. So I think these are some of the trends that fed into the Trump phenomenon back in 2016.

Richard Reinsch: So Age of Iron in a way, just kind of thinking about your answer, you’re challenging standard ways we as Westerners, as Americans, think about the future, as you call it, Whig theory of history, or a progressive theory of history that history changes, but is always in ascent upwards in the realm of greater individualism, greater material security, greater prosperity, all of these things we associate. You’re perhaps suggesting, well, maybe that’s not the case, or if it is the case, it’s not that we’re going to necessarily proceed as we’ve done in the past. We might have to do things differently than we’ve done in the past, say 50 or 60 years. But that’s okay, and you go on to make an argument in the book for conservative nationalism. Maybe talk about that. What is conservative nationalism?

Colin Dueck: Sure. So your first point, I think you got it exactly right, which is that the liberal, or the progressive view of international relations is that it’s kind of this long-term upward trend where we sort of transcend power politics through multilateral organization, interdependence, cultural exchange, human rights promotion. And I actually think that some of the central features of world politics haven’t really changed that much over time. I mean, there has been some progress, but power politics is a reality. So just denying it in a sort of a furious way doesn’t really get us very far. In fact, it leaves us actually at the mercy of our adversaries overseas.

Richard Reinsch: What would you say is the biggest embodiment of liberal internationalism today? I mean, what are you sort of pushing against?

Colin Dueck: The biggest flaw, is that it?

Richard Reinsch: Or embodiment. Institutional representation of say liberal or progressive, and maybe I guess liberal internationalism isn’t necessarily progressive trans-nationalism but I also, I think about those in conjunction as the latter being a goal of the former, maybe.

Colin Dueck: Sure. Well I think there’s the liberal internationalist tradition and there’s some variety within it, too. There’s people that are more hawkish people and more dovish, but you have a variety of think tanks, you have journals, you have leading newspapers. I mean, for the most part kind of the center left establishment really in DC and around the country, and certainly in Western Europe, I mean these are assumptions that are just taken for granted. I think that in the Democratic party, I mean if I had to name an institutional embodiment, I would say the Democratic party is dominated by liberal internationalists. And then you have interesting debate going on where progressive’s like Bernie Sanders, they don’t really argue with the liberal element, but they think that the US should be less interventionist militarily overseas. So that’s an interesting debate that’s going on right now on the left.

But there’s really no debate over whether the core kind of left liberal progressive assumptions are true. I mean, if anything they are furiously offended by any suggestion that they’re not.

But your question, I think the second part of the question was what is conservative nationalism.

Richard Reinsch: What is conservative nationalism?

Colin Dueck: In the American case, one of the points of the book is to point out that there are different versions internationally. So I’m not denying that there are versions of nationalism around the world that really are authoritarian. I mean, we’ve seen that over the past century, and beyond. But I think in the American case, there is a kind of core American nationalism that is benign, actually. I mean foreign policy, which is the main topic of the book, I really trace it back to George Washington in his Farewell Address where he said that the US should have no binding political commitments of a permanent nature. That it could be engaged and friendly with a wide variety of regimes, but that it should avoid those kinds of permanent alliance commitments.

Colin Dueck: And so that was really the dominant strain well into the 20th century, and it was Woodrow Wilson who broke that, or challenged it by suggesting that the US could best serve and promote its interest and its values overseas through a set of global multi-lateral binding commitments as embodied in the League of Nations. And even though he’s failed in the short term, I think he had a lot of success ideologically in the long-term, because eventually that’s where mainstream US foreign policy elite sort of landed in a more practical way with FDR and Truman in the forties. So Republicans and conservatives for their part could never really figure out exactly how to handle Wilson. I mean, they knew they didn’t like him, but they had a lot of disagreement amongst themselves, and I traced those disagreements in the different factions. There’s a more non-interventionist faction that is very skeptical of any military engagement overseas.

And then there are others that are more muscular, robust and those coalitions have formed and reformed over time, particularly when conservators are convinced if some concrete security challenge, whether it’s Soviet communism, or Al-Qaeda. But I think most conservatives, at the grassroots level, never really bought into the most ambitious Wilsonian vision for what the US should do overseas, and so eventually what you get after the frustrations of Iraq, and after Bush 43 has left office, you get this rethinking of what are we doing here? And Trump, in a way, tapped into that, and expressed at least one side of it very forcefully. And I see him as a resurgence of traditional American nationalism in foreign affairs. Not because I’m suggesting that he’s gone back and he’s possibly read these documents, but because he does have a point of view that he’s expressed pretty consistently for more than 30 years. He thinks that US allies are free-riders, that they free-ride off of the US economically, militarily, and otherwise, and that the US should assert itself, and assert its freedom of action, not only against adversaries, but actually against its own allies.

So for better or worse, that that is his point of view. And it is a more traditional American nationalist foreign policy. And it’s the most dramatic such shift, I think, since really before World War II. I mean, who doesn’t take it for granted that liberal international model should be dominant. In fact, I don’t think he has much use for it, and he says so.

Richard Reinsch: Well, let’s talk about nationalism just a little bit more here because as you know, and I certainly know people hear the word nationalism and they lose their breakfast, they get upset. There’s a fear that individual liberty will be swallowed up by a comprehensive government defining unilaterally what it means to be an American nationalist, or something like that, or pick the country. You said that’s benign just now, that nationalism in America has a benign tradition. And I wondered if we could talk more about that. In the book, you argue there’s a civic nationalism at the core here, and that’s also important because if we’re going to pursue this strategy you say was the mainstream tradition in American foreign policy thinking before Woodrow Wilson that also applies they’re acting on behalf of a certain understanding of America. I wonder if you could talk about those things.

Colin Dueck: Sure. Yeah, that’s a good point. So I do think, and I say in the book that there is a kind of civic American creed which has these classical liberal elements well beyond foreign policy, and that it is fundamental to the founding, and it’s no coincidence that Jefferson writes into the Declaration of Independence that all men are created equal, and that’s going to have foreign policy implications as well. So there is a kind of classical liberal element in the founding from the beginning, it is a civic form of nationalism, rightly understood, and in America at its best, which much of the time I think has tried to work toward that.

Now, the implication for foreign policy is not that you have to intervene militarily all over the place, all the time. I mean, you’re hoping that eventually this order, this republican form of self government spreads, right, as the founder’s hoped, but they never dreamed that you could do this by force on all fronts at once. In fact, they took it for granted. You would have to have normal diplomatic relations, and even sometimes alliances with undemocratic regimes in order to promote US national interests so they could be quite hard nosed about that and that’s a lesson that’s useful as well.

Richard Reinsch: Thinking about just the civic nationalism component, is there a sense in which that becomes a forward doctrine, that people want to use it to project American power abroad to make other people like us? Is that so illogical?

Colin Dueck: It certainly has been used that way and it can be a problem. So when you have this tradition that says that we have our own civic creed, and we really believe it, and it says that all men are created equal, it might create the impression, for example, that you then have an obligation to spread democracy, for example, in a country that isn’t particularly ready for it. I mean, so we’ve seen this more than once. I mean one of the lessons that some drew in the United States after the end of the Cold War is that the experience of Eastern Europe could be transferred to other parts of the world, like the Middle East.

As it turns out, Iraq for example, was not as ready for democracy as Poland. So if every foreign policy debate is just an attempt to project ourselves, or what we think it means to be an American onto other countries, that can actually be misleading. It’s not always very helpful, because you can get yourself into trouble when you’re talking about other parts of the world that are just very different in terms of their own political cultures. So I think it’s useful to always be very careful. We want to stick to our core principles. We have our own civic traditions, but what that means for a foreign policy is something we need to be very careful about.

Richard Reinsch: You referenced George Washington as being a great representative, and our first president acting on behalf of American nationalism, and you referenced the Farewell Address and that phrase entangling alliances, avoid entangling alliances. Also, though, throughout the 19th century, and I’m just sort of thinking about your argument here, there’s also, though, a growing sense of American national power and one way that expresses itself as the continent is ours, the famous manifest destiny understanding. I guess one question for you is, how does conservative nationalism deal with hubris, or arrogance, or assertions of power on behalf of this growing 19th century reservoir of power America had, which has now made us this incredible nation? How does one deal with that? So I guess I’m also thinking what is a statesman trying to achieve with foreign policy, or an American statesman, I should say, particularly.

Colin Dueck: Well, so, right. I think that’s right. In the 19th century, there is this growing sense of American power. And so as US statesmen are sticking to this model of no entangling alliances, they are at the same time expanding American influence, and trade dramatically. They’re expanding American territory across the continent. They are debating with each other what is right and what is appropriate. I mean, in fact, factions at that time often hurled the most violent nations against one another.

So, apparently this isn’t entirely new to our era, but if you look at the Mexican war and other cases, both sides typically thought of themselves as being more true to the original tradition, but the overall pattern in 1800s is clearly an expansion of American power. And I think that in the end though, Washington’s foreign policy model continues to reign right into the 20th century. Now your question was about arrogance or hubris, are you thinking about at that time, or today?

Richard Reinsch: Well, in any anytime really, I mean, but in particular because I think Washington, while I admire his statecraft, but Washington has a pretty weak country, and he’s got a lot of difficulty. So one can see circumstantially the need to be a great steward of that, and to be very protective and humble in how you approach the world. But what do you do in your post-Civil War Woodrow Wilson, you’ve got this industrial capitalist state which Woodrow Wilson possessed that could be marshaled into a war machine. Challenges like that. Challenges post-World War II you face international communism, international aggression, you’ve got an incredibly weak Europe that you’ve got to rebuild. I mean, all these sorts of things coming to play as well here and I guess what I’m asking you is, is there a philosophical core here to what you’re describing that would help us think about the use of power?

Colin Dueck: Right. And so I think for conservatives throughout the 20th century, there was a constant wrestling with, on the one hand you don’t want to go all the way that Wilson has gone in arguing for this kind of dramatic handing over of US sovereignty. I mean, that was something all Republicans agreed during the Treaty of Versailles debate, even though Henry Cabot Lodge on the one hand is pretty hawkish against the Germans, agrees that the League of Nations goes too far. So the core principle there is it is not appropriate to hand over US national sovereignty to this multilateral organization. It should be the United States that preserves the right to choose war or peace for its own interests, and for the security and prosperity of the citizens. Now, over time eventually most conservatives, most Republicans become convinced of the need to act energetically overseas in more of a long-term way during the Cold War.

And that’s one of the stories I tell in the book, is that it was that visceral anti-communism that sort of cemented conservative nationalists like let’s say a Senator Barry Goldwater, who didn’t have much use really for liberal foreign policy projects, but he was a staunch cold warrior. So that allowed for a coalition to form, right, for decades, which also continued successfully under Reagan. But then, after the end of the Cold War, the question becomes, what next? I mean, the Soviet Union’s collapsed, and so for many conservatives, the question is, why are we still doing this?

And that’s where the point about arrogance or hubris comes in, because I think now looking back on it, it has to be admitted that there was a kind of hubris. And I think it was very sincere. And I think it was well intentioned, but the idea that history had kind of ended, that democracy and human rights would just continue to spread, that this could be done at low cost. The globalization of free trade would benefit everybody and be seen by everyone as mutually beneficial. If you look at George Bush’s, I’m talking about Bush 43 here, if you look at his 2005 Second Inaugural, he talks about the defeat of tyranny worldwide. It’s very ambitious, and I don’t doubt that he-

Richard Reinsch: It’s a Wilsonian address.

Colin Dueck: It’s Wilsonian. It is absolutely a Wilsonian statement. And I don’t doubt his sincerity. He’s an honorable man and he meant it, but it was overly confident, and Trump for all of the strangeness of the Trump phenomenon, I think one of the things Trump tapped into was a reaction to all of that. Looking back on the last quarter century to say, we’ve been very optimistic now for 25 years, 30 years about what globalization, free-trade, multilateral organization, military intervention would get us. Maybe we’ve been too optimistic, and we need to take a step back, and find some sort of more solid basis, or correction for this. And I do think for a lot of voters that that actually really resonated.

Richard Reinsch: And I want to talk more about the Trump phenomenon, and what Trump currently represents. I did want to just briefly, because Woodrow Wilson is such an important figure in your book, and a parting of the waters you argue, but also before him we have Teddy Roosevelt, and you point to him as a good example of conservative nationalism, and maybe people don’t know so much about Roosevelt’s foreign policy thinking, or his conservative nationalism, maybe they’ve heard quotes, things like that. Maybe delve more into what separates those two men on this question.

Colin Dueck: And by the way, I wouldn’t deny that over time Teddy Roosevelt on domestic affairs really does move in a progressive way. By the time he’s running in 1912 as a third party candidate, I mean he has split off from obviously pretty far from any kind of mainstream conservative view, but he’s a fascinating character, and he’s charming, and he’s an excellent foreign policy president, really. And the reason I say that is he understood that there were limits, at the time, on what the public would tolerate. He also understood that the US had national interests. Wilson, by contrast, hated to talk about US interests. He claimed that the US only acted selflessly and that that’s what made it exceptional, which I think is a misunderstanding of American history. Wilson was also bent on collective security, as opposed to what he called or criticized as special alliances. So Teddy Roosevelt believed you had to promote balances of power overseas, for example, between Germany and France, between Russia and Japan.

He tried to do his best in his own limited way in the opening years of the 20th century when the US was not, for the most part, interested in playing that kind of forward role. But he did a very good job in preserving and expanding US interests in Central America, at sea, overseas, and he was an impressive figure. Wilson, I think, is much more idealistic in the worst sense. I mean, he’s unrealistic in the sense that Wilson wants to sort of teach or scold other countries into following interests that they do not view as their own, and that is just not how international relations works. So I think in that sense, there were important differences between TR and Woodrow Wilson.

Richard Reinsch: So Wilson would be ignoring not only conservative nationalism and the pursuit of an abstraction, but also, I mean, and obviously just ignoring realist foreign policy thinking as well. Assuming realism is a valid or viable way to think about foreign policy. I mean, he’s really progressing so to speak on his own here. And I guess it was his famous idea of World War I being not just in pursuit of a balance of power pushing Germany back, but something grand, universal like democracy. This is sort of where you can then see how conflicts don’t end, resources are constantly thrown in, factions form internally in the United States, bitter factions which tie themselves forward against the foreign policy, et cetera. All these things you can see start to come into play with that type of an approach.

Colin Dueck: Right. I mean, he had a way of handling stuff in foreign policy that tended to drive, Wilson did, that tended to drive his Republican critics insane, because in fact he started this in cases like Mexico in his first term, and then he applied the same model to Germany, and the model was this, and I think it’s a common pattern with liberal international threat up to the present. You begin by laying out some universal abstraction, and tie your country’s credibility to it. That’s step one. Then step two, you refuse to do anything about it meaningfully. So you create a gap between the stated moral commitment or legal commitment, and then the material cost that you’re willing to sustain, which makes you ridiculous in the eyes of other countries, and it creates problems with credibility and perception.

And then finally third, you eventually agonizingly have to close the gap. This was something Wilson did over and over, and it’s a mistake that TR avoided. TR’s model was very different. He said, as everyone knows, “Speak softly, and carry a big stick.” Which means you don’t make commitments that you can’t keep in the first place. And then at the same time, you maintain the power, for example, the Naval power, the Navy, to back up those commitments. I mean that is just common sense. So that’s an important difference in the tradition that’s set by Wilson on the one hand, and TR on the other.

Richard Reinsch: Now you talk about in the book it was in liberal internationalism that it did work. It worked post-World War II. It worked during the Cold War in American interests. But it required a whole structure of institutions, ideas, politics. It didn’t just go of its own. It had to be created primarily by the United States. Talk about that, because I think that’s an important way for us to then to transition into whatever it is we’re in now.

Colin Dueck: Right. So I think that the two democratic party presidents of the forties, so FDR and Truman, on foreign policy, I mean they each made mistakes. For example, FDR was far too optimistic about the possibilities for cooperation with the Soviet Union, but in a lot of ways, they both got more right than wrong. And Truman in particular, I think, led a very useful effort in the end to counteract Soviet power in the months and years immediately following World War II. So that required the creation of a new set of institutions that meant overseas you had new alliances, which clearly broke George Washington’s original methods. I mean, the United States decided in the forties it would abandon that tradition. That was a dramatic shift. Now you’re forming long-term alliances with countries in Europe, Asia, eventually the Middle East, the Americas. So that is a dramatic shift.

You’re setting up bases and diplomatic commitments overseas. You’ve joined this new institution called the United Nations, and FDR and Truman were much more practical, or hard-nosed and adaptable than Wilson in recognizing valid concerns and conceding to Republican sometimes on those concerns. So they had more success in building support from at least one wing of the Republican party. And I think on balance, they did a lot of good and then that continues with Eisenhower in the fifties and then into the sixties where I think the liberals really hit kind of a brick wall was in Vietnam. And in my opinion, they never really recovered.

I think that the liberal internationalist model and the Democratic party splintered and fragmented in Vietnam. And actually I think every Democratic party president since, whether it’s Jimmy Carter, or Bill Clinton, or Barack Obama, has been very much preoccupied with bridging internal differences within the Democratic party between the establishment on foreign policy, and then the base of their own party, which is really to this day is antiwar based on the reaction of Vietnam. So there are set of assumptions that have taken hold among Democrats since the late sixties and seventies, but I don’t think have ever really been shaken. And then at the same time we get added to that this just increased emphasis over time on the idea that the world will be a safer, better place as long as you just keep adding an unlimited number of multilateral treaties and institutions, which is not necessarily realistic.

Richard Reinsch: Now you argue in the book, many have argued, liberal internationalism, or certain liberal thinking in the Cold War leads us into Vietnam, and of course we know a lot of resources are put into that conflict. But I think it’s crucial here to think about something that other foreign policy scholars have noted, a few bring this up, that we never talk about, that we stopped talking America’s commitments in terms of victory, and in terms of what it meant for the United States of America to actually win wars. They became something else. Ongoing, continuous policing actions, to use the phrase in Vietnam, things like this. This is a part of liberal internationalism and that school of thought and where it leads with the projection of force, or is this just a part of the Cold War containment strategy?

Colin Dueck: Well, yeah. It’s an important point. You have in Vietnam, it’s worth pointing out that, for example, Goldwater had argued in ’64 against Johnson that the US, if anything, should be more forthright in countering communism with Vietnam. And of course he was attacked by LBJ as a warmonger, and then the next thing that happened in ’65 was that LBJ led the US into Vietnam, although in a much more indirect and kind of stealthy way than Goldwater would have preferred. So there was a way in which the US approached Vietnam, partly for domestic political reasons under LBJ as a sort of halfhearted effort at first deliberately, and that is not necessarily the most likely to produce military success. I mean, to this day you’ll still get a lively debate over whether meaningful success was possible in Vietnam. But I think that a responsible president could have either put forward the full effort early to try to achieve that success, or admitted that it wasn’t going to happen and then act accordingly.

So we’ve seen that pattern over and over of halfhearted interventions. I would give credit to Bush 41. I think in 1990-91 the first Gulf war, he handled that quite well. But then you get a series of interventions in the nineties whether it’s Somalia, Haiti, Bosnia, and then you have Iraq, and Afghanistan, and Libya in the past 20 years, and it’s a frustrating pattern, and that’s no doubt part of what Trump and his supporters were responding to as well. I mean, Trump used to say it regularly, “we don’t win anymore.” So what is the purpose of lengthy, inconclusive military engagements? It’s a popular concern often from people who have family and friends that have served overseas. What’s the plan? When does this end?

Richard Reinsch: And also in that regard, thinking about just the mindset here, you referenced the term in the book, “the blob,” and the blob being sort of this moniker to describe the foreign policy establishment in America that is sort of there, which suggests there’s a group-think. There’s a reluctance to criticize, or to look back on say the past century of foreign policy in America, and evaluate what’s happened. There’s sort of this ongoing acceptance of deployment of American soldiers abroad in numerous places without regard to what it actually does for the country at home. I mean, that’s sort of what, when I hear the term the blob, that’s what comes to mind. Do you find there being merit in that in writing a book on conservative nationalism? I take it, you mean to, in great respect, challenge foreign policy thinking in America, or give it a jolt?

Colin Dueck: Well, one of the things that I’ve actually… I had some serious concerns about candidate Trump when he first came on the scene, and I still do have some concerns. I lay these out in the book, but I don’t think there’s anything wrong with asking first order questions. I teach students at George Mason foreign policy, and if a student asks me, “Why do we have alliances overseas?” I don’t respond by saying to them, “What an outrageous question. Get out of the room.” It’s a perfectly legitimate question for a US citizen to ask, why do we need these alliances? My own view is that we’re on balance safer, and more secure, and more prosperous by having allies than, for example, if we were to dismantle all the alliances, I mean, that’s my own view.

However, I don’t think it’s unreasonable for President Trump, or any American, to just ask that question, and if the blob, to put it bluntly, can’t answer that question convincingly, we have a problem. And I think a lot of Americans in both parties right now are asking, why do we do these sorts of things? What’s the reason? You have to be able to present the argument in a sensible way, in a common sense way that connects to people’s concerns. And so I think that where there has been a kind of problem with the blob is, for example, to treat those questions as just outrageous, or out of the line. That’s not appropriate.

Richard Reinsch: And we saw a lot of that, I mean just even the idea Trump suggested during the campaign that NATO partners contribute their agreed upon GDP percentage contributions to their defense budgets. That question seemed to go too far, to even suggest that as if he was questioning NATO or something like that, which struck me as a very weak sort of approach to this whole thing, particularly when NATO was created to thwart the Soviet Union who no longer exists.

And so the question obviously becomes, well, why does NATO really need to exist? And of course the current French president, Emmanuel Macron, seems to be suggesting the same thing as he calls for a European Integrated Force. Do you see a displacement happening? A new age? Do you see signs of a new age of foreign policy thinking in America, or conservative nationalism, or is there actually still great continuity with what’s existed in the post Cold War period in American thought?

Colin Dueck: So I would say what Trump has done is to kind of blow the lid off the top in the sense that there are questions now that have been asked that you can’t just put those back in the box and pretend that they haven’t been asked. So for example, when he said that NATO was obsolete, once you have a successful presidential candidate who, at some point, said that NATO is obsolete, you can’t pretend that was never said. Europeans continue to know that president Trump said that at one point, and they worry about it. Macron does, others do as well. So I think what you’re going to get is you may have the next president, whether it’s Democrat or Republican, you may have somebody who’s more conventional in terms of their style and their approach, but there is going to be a long-term shift in the sense of maybe a new willingness to look at some first order questions or assumptions and ask how these serve the interest of US citizens.

I’ll give you an example. I’m struck by how many progressives are actually questioning very basic assumptions about the military overseas. And so you have this odd alliance between some on the right, and some on the left where particularly younger, it seems to me, particularly younger Americans who just don’t have that memory of the Cold War. In fact, for many of them, 9/11 was when they were small children. But what they’ve experienced is Iraq and Afghanistan, which doesn’t give them much positive to go on, and they are often more skeptical about the use of force overseas. So I think you may have a shaking up, and we’ll have to see where it ends. I think there’s more than one way this could go. I mean you could have the sense looking back on it that Trump rearranged things in a way that lasted.

I think in the case of NATO, Trump supporters actually for the most part say they support NATO. So when you ask people in public opinion polls who are Republican, and who are Trump supporters and you say, “Do you oppose NATO? Do you favor dismantling NATO?” They say, “No, we support NATO.” However, they also support Trump, and they support his efforts to increase ally burden sharing, particularly on defense spending. And by the way, our European allies have long since got the message, I mean, they know that that is the US position right now, and they also know that Trump may very well be reelected. So they are trying to come to grips with this, and that is a challenge. And those countries, each have their, the Germans have their own point of view. The French have another. The French for example, kind of pride themselves on independent military capabilities. So their ideal would be a strong European Union led by France.

Richard Reinsch: Yeah, I mean they’re the only nation in continental Europe with actually an aircraft carrier.

Colin Dueck: Right. They really do have some serious expeditionary capacity.

Richard Reinsch: Question here that I wanted to raise is the degree to which the future, and you write this in the book, our future is going to be oriented, though, by great power competitions with other nations. China immediately emerges. Russia comes to mind. India, not necessarily an antagonistic relationship, but a country that we want to further some interrelationship with, the need to have relationships with nations in the Asian sphere to counteract or buffer China. This seems to be the future of American foreign policy. In a way, if that’s true, then the conservative nationalists thinking comes back of necessity, I think.

Colin Dueck: Yes. I think that’s right. I mean, and actually the administration has identified that. So national security strategy, the national defense strategy of the Trump administration make this very clear that this is how they view it. And I think they’re right to view it that way. It’s an interesting shift from really Clinton, Bush, and Obama all said, and you can go back and look at the documents, they all said in their own national security strategies that the assumption was that the great powers of the world, including Russia and China, would eventually converge on a kind of a market democratic model, a liberal model. And the hope was that you could nudge that forward, for example, by trading with them, and diplomacizing them with them. And I think this is another area where that just didn’t work out. I mean, it was a kind of gigantic gamble, particularly in relations to China, and the gamble did not succeed.

So now we have a wealthier China, much wealthier China, more powerful, but it’s not any more democratic. In fact, in some ways it’s more authoritarian now than it was 10 years ago. So we’re dealing with now a very powerful China that doesn’t want to play by our rules. And to the administration’s credit, they have recognized this, and said that they understand that reality, and they’re trying to push back against China commercially, as well as diplomatically. So I do give the administration credit on that. And then you have Russia, similarly, Vladimir Putin has no intention of playing by our rules. He leads a great power, which is Russia, and in its own way it is a major power, and it is not any more democratic than it was 20 years ago. Probably less so.

And we have to deal with these challenges that are very real. And then you have Asian powers like Japan and India, which are worth taking very seriously as major democratic Asian powers that have their own armed forces, and their own role in the world. And the Japanese under Shinzo Abe are, to some extent, reasserting themselves. And I mean that as a compliment actually. I think we need them. We need the Japanese to play more of a role in the world. The EU is a bit of an anomaly, because the EU feels squeezed by this new reality.

Is the EU a great power? Is it sort of the Holy Roman Empire of the 21st century? What exactly is it? There are deep questions as to whether it can cohere on these matters of high politics. So I think you have the United States, China, Russia, India, Japan, but then the Europeans are sort of caught, particularly the Germans, in their own mind, they are sort of caught between these competing powers and they feel torn, not only for strategic reasons, but actually for economic ones as well.

Richard Reinsch: As I was reading your book, there’s this thought that the hopes for the post-1989 were all perhaps expressed succinctly by president George H.W. Bush of sort of open minds, open markets, open borders, this sort of thing of growing together as a new world order, that famous speech, that this didn’t happen. That in many respects, China, Russia, other countries didn’t become like us, and I think the evidence is really staring us in the face. So if that’s true, then how does America readjust and recalibrate? And it seems to me that process has started, and we’re in it right now.

Colin Dueck: Exactly. And so, I mean there were certainly some great gains for the US from the end of the Cold War, and there were democratic consolidations that happened, and that have lasted in parts of Central and Eastern Europe, parts of Latin America, parts of East Asia. But these bigger powers, Russia and China, it did not work out as planned. And there’s also been backsliding, other cases like Venezuela. So we’re dealing with a world where if we look at it honestly, we have to admit that we may not have the luxury anymore of picking and choosing, for example, in every case, whether we can only ally with other democracies. I mean with China, just to take an example, if we were to say that we only work with democracies, and counteract in China, we could be shooting ourselves in the foot, because we might need the Vietnamese. The Vietnamese, under their own system, are very worried about China just as we are.

And even though they don’t live in a liberal democracy, we should work with them. And as a matter of fact, there seems to be, I mean, for all practical purposes, I think there’s agreement on that. So it is odd to see how often you get this line of argument, for example, from Democrats outside of the administration saying that the administration has betrayed American values by conducting diplomacy with undemocratic regimes. And yet we know perfectly well that we’re going to have to, and not only that, we know that Obama and Clinton did in a case like Vietnam, and that it made sense to do so. So there is a kind of an odd quality to some of those critiques.

Richard Reinsch: It sounds like in certain respects, you think about Jeanne Kirkpatrick’s famous essay defending Reagan’s foreign policy during the Cold War, and aligning with authoritarian governments against communism as well. So, Colin Dueck, thank you so much for coming on the program today to discuss Age of Iron: On Conservative Nationalism. I appreciate it.

Colin Dueck: Thank you.

Willmoore Kendall‘s Democratic Faith Jan 31, 2022

Richard Reinsch (00:04):

Hello and welcome to Liberty Law Talk. I’m your host, Richard Reinsch. Liberty Law Talk is featured at the online journal, Law and Liberty, which is available at lawliberty.org.

Richard Reinsch (00:19):

Hello, I’m Richard Reinsch, and today we’re talking with Christopher Owen about his new biography of the conservative thinker, Willmoore Kendall. The book is titled Heaven Can Indeed Fall. Christopher Owen is Professor of English at Northeastern State University in Oklahoma. Christopher, welcome to the program.

Christopher Owen (00:40):

Thank you, Richard. I really am excited about being on your program. It is Professor of History instead of English, but other than that everything’s right.

Richard Reinsch (00:49):

I apologize for that.

Christopher Owen (00:51):

No problem.

Richard Reinsch (00:52):

Okay. So who was Willmoore Kendall and why does he matter?

Christopher Owen (00:57):

Yeah, a great question. Willmoore Kendall was probably best known as being the mentor of William F. Buckley Jr. at Yale, so he was a Professor of Political Science at Yale off and on after World War II. And at Yale, certain talented students fell under his influence. He was a dynamic, colorful personality and really a great teacher. So William F. Buckley and also L. Brent Bozell Jr. were both sort of his mentors, or he was their mentors at Yale. And he had a great influence on their life, and their thought, and their activism, which is important in itself. But I believe, and I argue in the book, that he’s probably most important as a political theorist. So he was a founder of conservatism, one of the co-founders of National Review, for example, but his thought doesn’t really fit neatly into any of the common categories that we think of as contemporary conservatism. So not a neocon, not really a state’s rights guy, not really a theocon, not really a social or religious conservative exactly either. I call him in the book a populist. One might call him in today’s lexicon, I guess one could call him a national conservative. Those were neither terms that he would necessarily have embraced. But when thinking about his ideas and his thought, that’s really where I would put those. I would say that if you look at the early days of National Review for example, his ideas had some importance and resonance that in time kind of faded away, particularly as conservatism came closer to power and liberalism went more on the defensive.

Richard Reinsch (02:52):

He also worked in the CIA and part of his influence over Buckley was recruiting him to the CIA. Is that right?

Christopher Owen (03:01):

Sure. That’s right. Buckley, I guess, was recruited by Kendall to serve in the CIA. That was one way he could avoid getting drafted and sent to Korea, I guess, was part of it. There were other people at work in the CIA with National Review, James Burnham, for example. Kendall’s work as an intelligence officer was really important, and he was really good at it, and he was briefly head of what became the CIA for all of Latin America. He was also really important as an intelligence officer during the Korean War. But I think that experience that he had in the bureaucracy of the federal government made him skeptical about the federal bureaucracy and that it should be maybe more controlled by the popular will.

Richard Reinsch (03:54):

Yeah. That’s interesting in itself, a PhD in political science who had spent some time in academia at that point, then making his way into the CIA. How did that happen?

Christopher Owen (04:04):

Sure. Well, he really spent most of his entire life really in academia. So he had been in the 30s, Kendall was a man of the left. He was an isolationist. So he was sympathetic, I guess, with Trotskyism, though not so much as James Burnham would’ve been. He sort of, as the war broke out, which he had opposed the U.S. entry into the war, so after Pearl Harbor he had to figure out what to do. And what he ended up doing is falling in with a group that was led by Nelson Rockefeller called the CIAA, which is the committee for—I can’t remember the exact initials, but essentially an intelligence group that where it’s the—The Coordinator for Inner American Affairs is what that stands for. It was basically American intelligence work in Latin America. So Kendall was fluent in French and Spanish and so he put his language skills to work there. Worked in Columbia for a while and was really good at sort of public information, I guess we would call it propaganda, counterintelligence, not covert stuff, not spying so much as public intelligence work. His Spanish also kind of bonded him to Buckley, because I’ve heard that William F. Buckley’s first language was Spanish, and Buckley’s dad made his money in Mexican oil investments. And so that was probably one thing Kendall and Buckley had in common-

Richard Reinsch (05:36):

Yeah.

Christopher Owen (05:36):

… was that language.

Richard Reinsch (05:38):

Thinking here, you mentioned Kendall was at Yale, so very bright obviously. Early on, his career took off academically. You write in the book and maybe help us understand this, he had a way of analyzing texts that was unique amongst political theorists and this seemed to really bring out the brilliance in his work. Talk about that some.

Christopher Owen (06:06):

Sure. So he had a couple of different influences in that way. He was a Rhodes Scholar and he was a student at Pembroke College in Oxford and was a student there of the philosopher, R.G. Collingwood. And Collingwood was an analyst of the philosophy of history and Collingwood really focused on sort of investigating questions, almost like a detective asking the right questions, trying to carefully, systematically work through your evidence logically to come to a logically coherent answer. That was part of the influence. The other was when Kendall, in the late 30s, taught at LSU, which at that time had a lot of money and was pretty prestigious. And there he became good friends with both Robert Penn Warren and Cleanth Brooks, who were sort of pioneering the new criticism of close reading of texts and they would sort of put historical context aside to really focus in on the text itself. Kendall became, I don’t know of any other political scientists who did this, but he really liked to focus on a specific text and delve into and dig out its deepest meaning and putting aside historical context for the purpose of analysis. And so he was really able to do that with John Locke’s Second Treatise on Government very effectively and kind of come up with some new ways of looking at that key text that others hadn’t really brought out too effectively.

Richard Reinsch (07:40):

Also, I mean, I think this is sort of key to his unique position in conservatism is an author who’s a foundation for Kendall was Rousseau. So talk about that, because I think that helps us understand his thinking better.

Christopher Owen (07:57):

Yeah. So Kendall was very sympathetic to Rousseau. He found him first really as a man of the left. A lot of Kendall’s focus was on democracy and so he saw Rousseau as the sort of main theorist of democracy. Most conservatives, Kirk, etc., Russell Kirk, hated Rousseau. In fact, I don’t know of any other conservatives but Kendall who really admired him. I’m sure there are some. Look, so Kendall said, “If we’re going to have democracy, we have to figure out how to maintain it in the large nation state,” which is a reality of the day. So how do you have both a large nation state and democracy? So that, I think, drove Kendall to focus on local government where he believed democracy was more real and so he really, when he got an assignment to do a discussion of local government, he taught classes on local politics at several different universities, but he went to Rousseau to make this not just a mundane routine assignment on the, I don’t know, the commissioner system of elections, but something that was more fundamental to maintaining democracy. And therefore he came to believe, I think, that representatives in Congress and so forth really ought to protect and safeguard the interests of their own local communities, which they represented. And that ultimately was Rousseauian in the way to best preserve democracy in a large state.

Richard Reinsch (09:34):

So in that regard, it’s interesting just to think about his work on Locke as well.

Christopher Owen (09:41):

Right.

Richard Reinsch (09:41):

And his dissertation on Locke, which very well received at the time.

Christopher Owen (09:46):

Right.

Richard Reinsch (09:46):

And he does something new with Locke. He says, Locke is a majoritarian theorist. He’s not… To think of him as a proponent defending individual rights doesn’t fully make sense of that.

Christopher Owen (09:58):

Right.

Richard Reinsch (09:59):

And talk about that too because that seems like it’s going to play out later in his career, particularly when he turns to writing on politics in the 60s.

Christopher Owen (10:08):

Sure. So he starts out as, at that point, I call him an absolute majoritarian, Kendall, so the majority had the right to rule, the minority has the duty to obey. So in reading the Second Treatise, instead of relying on what others had said about it, he read it and analyzed it carefully. And one of the things he noted is chapter one focuses on the right of the majority to rule the community and to impose its will up to and including the death penalty for those who step outside of its bounds. And it’s really only in the second chapter when Locke turns to natural rights. So the right of the community to rule as it sees fit is logically and prior to the rights of the individual not to be ruled by this society. So he argued really that there’s a fundamental contradiction, I think, between those two things. That if individuals have natural rights that are not given to them by society and cannot be taken away by society, that seems to contradict the idea that the majority has the right to impose its will on the rest of society. So he sort of saw that seeming contradiction by suggesting that Locke had a tacit understanding that the majority was virtuous enough that it would never take away the rights that individuals deserve. That was his position, at least in 1941. That changed a little later.

Richard Reinsch (11:49):

He changed later. His thinking changes about Locke as well. I guess we should say Willmoore Kendall found the politics department at the University of Dallas.

Christopher Owen (12:02):

That’s right.

Richard Reinsch (12:03):

And towards the end of his career, he dies, I think, in 1966?

Christopher Owen (12:09):

’67.

Richard Reinsch (12:09):

’67. And he taught at Yale. He had a, shall we say, a difficult personality wherever he went.

Christopher Owen (12:17):

Right.

Richard Reinsch (12:18):

I think it was said of Kendall, he never wanted to be on speaking terms with more than two people at the same time.

Christopher Owen (12:24):

That’s right.

Richard Reinsch (12:26):

And he was an alcoholic, he was married three times, and very just challenging personal life. But he was also a genius who entered, was it he entered Northwestern at the age of 13 or 14?

Christopher Owen (12:41):

Right. 13, yeah.

Richard Reinsch (12:43):

Yeah, and overbearing father, his father was a blind Methodist pastor, a progressive pastor in Oklahoma in the early part of the 20th centuries. So I think that also is obviously a part of Willmoore Kendall’s story.

Christopher Owen (13:01):

Absolutely. So he certainly had a contentious personality, but I think that was one of those things where it was a thing that also attracted people to him because people never really forgot meeting him when they did meet him.

Richard Reinsch (13:18):

Yeah.

Christopher Owen (13:19):

Saul Bellow wrote a short story or a novella really about him called Mosby’s Memoirs. He knew Saul Bellow and he just made a vivid impression on people when he did meet them. So he had a charisma about him, particularly when he was young, that attracted women and young people and his contentiousness was mostly focused on his superiors or his colleagues. He was never brutal or really argumentative with his students. In fact, he was never really ideological with his students, he was able to tolerate people of all sorts of shades of opinion within that. And I do try to… I don’t really connect necessarily all the dots, but… Yeah, so his childhood, he was really rushed into a lot of stuff by his dad as a child prodigy and he had a lot of scars from that I think, and that really came out in his later life. I do mostly in the book try to avoid saying that his father, Reverend Kendall, that it was unfortunate that he did blah or whatever, because kind of my idea was that it is what it is and so the good that was in Kendall and some of the contentious parts all came from that. And he could have been an obscure professor somewhere and nobody would’ve ever heard of him, he might have lived a happier life, but made less impact. So I tried not to make too many judgements on that and just tell the story like it was.

Richard Reinsch (14:54):

Yeah, Kendall… I mean, if you’re trying to consult him to understand sort of the essence of his thought there’s several books of his that are really collections of his essays. The one that sticks out to me is the Conservative Affirmation and although there’s a collection of contra mundum, but we’ve been talking about this, how would you define his approach to American constitutional thought?

Christopher Owen (15:20):

Sure. Well, it’s also lined out in his book, Basic Symbols.

Richard Reinsch (15:25):

Basic Symbols.

Christopher Owen (15:27):

Really I think for American constitutional thought he really regards himself as a follower. I call him a Madisonian, but Madison himself is all over the place at times. He really calls himself, I think, a follower of Publius, and the Federalist, and the Constitution and the papers that explain the Constitution is really where he came down. And he even comes down with the original Constitution pre Bill of Rights because he believes. He cites Madison at a couple of points that the Bill of Rights are really part, what he calls, parchment barriers, paper that really don’t mean anything unless you have a virtuous people who’s willing to rule with restraint, carefully deliberate its course, and proceed into the future, so that’s really where he lies. And he really puts a lot of emphasis on the Preamble to the Constitution as the purpose of American government, so more perfect union, justice, domestic tranquility, general welfare, and so forth. So his thought really uplifts the Constitution, the Preamble, the Federalist. He is less enamored with the Declaration of Independence, which he thinks is sort of hastily put together, not well thought through, and less coherent than the Constitution, which was carefully deliberated over months before it became the law of the land.

Richard Reinsch (17:08):

But you said, Publius mattered.

Christopher Owen (17:10):

Right.

Richard Reinsch (17:11):

How did Publius inform his thought and how did he understand Publius?

Christopher Owen (17:15):

Sure. So he likes to… The Publius of course is John Jay, Alexander Hamilton, and James Madison, the anonymous title, pseudonym, that they wrote the Federalist Papers justifying the Constitution. So Kendall, like his focus on textual analysis, he thought it was less important in trying to determine which of those individuals wrote each, Federalist 51, Federalist 10, or whatever, than to look at the document focusing on the text itself and what it said about the American Republic and how it was supposed to operate. So the Federalist, written by Publius, he thought was the best guide to how the Constitution ought to be understood and interpreted, and really the best guide for how the American system of government was supposed to operate. And that was a defense of the Constitution before the Bill of Rights was attached to it.

Richard Reinsch (18:21):

Uh-huh (affirmative). So talk more about that, because I know he had this idea of constitutional morality inside the workings of the federal government should guide those people, people working in the institutions and the branches. Help our listeners understand that.

Christopher Owen (18:37):

So Kendall believed that there was a constitutional morality of restraint, and a lot of that meant not seeking to impose one’s will, or desires, or policy goals at the expense of other forces in society, that if you through, this is his later thought, it changed from what he was thinking early, that if social forces, reformers, et cetera, tried to impose their will and ran sort a roughshod over large groups who resisted, that that would almost certainly lead to social disorder, disrupt if not destroy the public government, the federal government. So Kendall really put the sovereign center and his focus on Congress, that Congress really was the place where sovereignty as loaned to Congress by the people resided and that as Congress went, so went the Republic. And when Congress was weak, that wasn’t good, that that really threatened sort of dictatorship.

Richard Reinsch (19:50):

Thinking about that, he has a great essay about the different types of majorities in American politics, and there’s a presidential majority and the congressional majority. And the presidential majority, I would say, I’m interested to get your thoughts, I think that largely governs us now. And Kendall was trying to say, well, congressional majority are different, that they’re defined by districts, by personalities representing those districts, and it’s going to be more directly responsive. And the goal should be to build around those majorities, which would represent something that approximates the majority of the actual people. And a presidential majority, it’s about television, it’s about grand ideals, it’s foreign policy related, it seems to be more elite driven. It’s a brilliant essay, but I think it’s… Now, it’s very much how we do politics and it has been true for decades.

Christopher Owen (20:52):

Yes. I think that’s true. And he saw that coming and he thought that, that would be really destructive. By the way, I think in that he was, even in his day, he was butting his head or running against the grain there because a lot of political scientists believe that the presidential majority is where real democracy resided. So a lot of that, he uses the phrase structured communities, so your Congressman represents a particular community, a structured community, his constituents can know him. He understands the particularities of his place in a way that presidential candidates never can. So he talked about how in a congressional election the candidates can talk about something real, tangible, local that affects people. Whereas in presidential campaigns, he said, mostly the candidates were just full of hot air talking about nothing, just sound bites that really didn’t mean a whole lot when it came right down to it. So absolutely he saw that coming and thought it would be destructive.

Richard Reinsch (21:57):

Yeah, and I think this leads into my next question. I’d like to get our listeners to understand. So Kendall defended Joseph McCarthy, why did he defend McCarthy?

Christopher Owen (22:07):

Yeah, that’s a great question and that’s something that I’ve really struggled with. And boy, if you want to turn someone’s head say someone was favoring Joe McCarthy, that’s still… McCarthy, his name is not well received, obviously. So look, that does go with what he’s saying. So Kendall, and this is the early 50s, he basically sees that there’s an out of control bureaucracy. So there’s some resonance here when people today start talking about the swamp, et cetera, Kendall didn’t use those terms, but that’s what he was thinking back in the 50s. And there’s a bureaucracy that doesn’t really have a particular boss anywhere, it’s kind of loosely under the control of the Executive Branch. There’s an unelected judiciary and he links them together in what he calls kind of this three-headed great bureaucracy, which he says is the news media, the federal bureaucracy, and the judiciary, and that those three combined basically are imposing their will on the people.

Christopher Owen (23:19):

And his whole idea was in a democracy you need someone to right herd on this bureaucracy and the only real institution set up to do that is Congress. And Congress of course, that would be in this case, Joseph McCarthy, could have been Martin Dies from earlier on in the 1940s, and that the only way that the people can exercise some control on this bureaucracy is through their elected representatives in Congress. So that’s why it sort of logically connects, I mean, he had no illusions about McCarthy.

Richard Reinsch (23:55):

Yeah.

Christopher Owen (23:55):

He knew what McCarthy was doing and he didn’t think of him as right on all accounts by any means, but he saw no alternative to what he said, right herd on this bureaucracy, the only body to do that would be Congress. And so I think that’s why he would gravitate towards supporting some of what McCarthy was doing.

Richard Reinsch (24:16):

And he also wrote a brilliant essay on the trial of Socrates.

Christopher Owen (24:25):

Right.

Richard Reinsch (24:25):

And I think further revealed sort of the political thought of Willmoore Kendall.

Christopher Owen (24:29):

Yeah.

Richard Reinsch (24:30):

But why wouldn’t he defend Socrates?

Christopher Owen (24:34):

Well, he might defend Socrates’ ideas, but look, his basic idea is there. A great example, great article, he loved to shock people by saying it was right to kill Socrates, so he definitely got a rise out of people by doing that. But the basic idea there is that the Athenian’s Assembly of the People’s purpose, function, was to safeguard the Athenian way of life and that’s the purpose of any government is to safeguard the life of its people. And if you have a dissident who attacks, attacks, and refuses to stop attacking that way of life, that the Athenian Assembly was within its rights in order to defend that way of life to silence that criticism any way that it saw fit. And then he of course goes on to make the argument that Socrates himself recognized the democratic Assembly’s right to do so by refusing to flee when sentenced to death. So that essentially was the idea that the people have the right to defend their way of life, and that there are critics who refuse to stop attacking that way of life, then the Assembly has the right to silence them through death or exile.

Richard Reinsch (25:53):

So you would say he’s an offender of the polity and the centrality of their needing to be a governing consensus, a moral consensus that governs the people, which I think that would make… That’s another way to enter into his thought and even to think about… He’s sort of reemerged recently, and you note this in the book, some conservative thinkers talking about Kendall again in the current moment, the present moment, applying Kendallian insights. Matthew Contenetti has done so in a couple of essays, Daniel McCarthy. I wrote a piece about Basic Symbols for the 60th anniversary last year and thinking about trying to develop that approach, the constitutional consensus approach. How do you see those efforts and how do you see Kendall’s ideas? Does it give us leverage in thinking about problems today and should conservatism become more, or is it becoming more Kendallian, not necessarily intentionally, but just through experience?

Christopher Owen (26:56):

Yeah. Well, so I say in the book that really Kendall is the theorist of what I call conservative populism, so a brand of conservatism that takes seriously the right of the people to enact their will into policy. Some of that does have to do with having a political orthodoxy, a standard to which we adhere, a minimum standard to which we all adhere. And Kendall, a lot of what he says is a society that doesn’t have that, a society that’s open to every point of view, a society that says it’s okay to talk about destroying the Republic, is not a society that lasts very long. It’s destroyed. It comes apart at the seams. So he said at one point that the open society, that is a society where all points of view are equally fine, is an enemy to the free society because a society where all points of view are fine ends up destroying itself. And so the goods that we have, and one of the goods, the freedoms that we have, end up being destroyed in sort of what he calls the phosphorus of political debate, where everyone hates one another.

Richard Reinsch (28:11):

John Stuart Mill, he was not a defender of John Stuart Mill. He was a passionate-

Christopher Owen (28:16):

[crosstalk 00:28:16] Not a fan of John Stuart Mill, right.

Richard Reinsch (28:17):

… So the society that believes in everything, I guess Kendall would say falls apart because it can defend nothing.

Christopher Owen (28:26):

That’s right. And it doesn’t have a place to stand. It doesn’t have a political, social orthodoxy to defend and with no social orthodoxy to defend, you suddenly sort of fall apart.

Richard Reinsch (28:39):

Yeah.

Christopher Owen (28:40):

Another thing I’ve been thinking about some with current events is… So you mentioned McCarthy and I don’t want to dwell on McCarthy per se, but one of the things I talk about in the book is Kendall made his conservative turn partly because he was personally involved in ferreting out some Soviet spies that were at work in some of the bureaus that he was in. And so I guess one of the things I thought recently about foreign influences on the American policy and if different actors, I don’t know, it could be Russia, or China, or whatever, if they’re having a major influence on our policy makers, or at least our bureaucrats and so forth, and that’s negative for our country, who is it that can stop that? And I think the only place I can come up with is where Kendall came up with, which is Congress. Congress has to somehow reign that in if that is in fact what’s happening. So a similar question in a different context to what was happening in the 50s, I would say.

Richard Reinsch (29:45):

No, that-

Christopher Owen (29:46):

40s and 50s.

Richard Reinsch (29:47):

… I think that’s interesting and it also raises the point too of orthodoxy, that for example, American corporations acting in this country in ways that the Chinese government wants them to act.

Christopher Owen (29:59):

Right.

Richard Reinsch (29:59):

Or firing employees, if the Chinese government tells them to, silencing voices, pulling people off a social media platform, that raises this question of well, do we know what it means to be an American now? And I think Kendall… Kendall says, you probably know it, it’s something like Americans live their liberty in their hips. I mean, it’s just like something that they do.

Christopher Owen (30:25):

Right.

Richard Reinsch (30:25):

They know how to do it.

Christopher Owen (30:26):

Yeah.

Richard Reinsch (30:26):

And do we still know how to do it? Well, I mean, would Kendall just be pulling his hair out right now?

Christopher Owen (30:31):

I think he’d be pulling his hair out to some extent, but Kendall had really this abiding faith in the people to make the right decisions. So if he looked at what’s going on right now, he wouldn’t blame the people. Okay? He would blame sort of the corrupt institutions that are failing to enact the will of the people. So he always really did… He trusted democracy, but he believed that people could be misled by the elites. By the way, he stole that in the hips thing, that’s a Lincoln Steffens thing I discovered.

Richard Reinsch (31:02):

Oh, okay.

Christopher Owen (31:04):

That he picked up from him, which I didn’t know until I discovered that. But yeah, so that’s definitely… I think he would have faith that the people ultimately can do the right thing. So his idea of the role of a political theorist or philosopher was not to tell the people what was right, but to try to guide them in the sense of if you decide A, the consequences will be B. That’s what a political leader or political scientist was supposed to do, not tell the people what to do, but to tell them, let’s say, if you mandate COVID vaccines, then this is a consequence that might ensue from that, not to tell them whether they should or they should not do that and that’s a key point. Another key point I’d really like to talk about is his ideas about political parties.

Richard Reinsch (31:58):

Please do.

Christopher Owen (31:58):

So he was one of the few people in his day who thought it was good not to have ideologically distinct parties. It was good to have overlap. It was good to have conservative Democrats and liberal Republicans, so that you had to have these cross-party negotiations in order to enact a law, in order to enact change, to make changes. So the votes that we’ve had really, I mean, I guess for the last several decades, but really, I think starting with… I did a thing on the Obamacare vote, where you have a vote that’s pretty much right down the line, like zero Republicans vote for it, all but one Democrat’s votes for it or whatever, or some of the recent votes we’ve had on spending bills that are right party line votes, that he thinks is really destructive because what you get is two camps, two choices, one side hates the other, and that’s a division that cleaves right down the middle and divides us as Americans. And he thought that was almost certain to be destructive, which went against what almost every other political scientist at the time was saying, that they believe we needed two ideologically distinct parties. He thought that would be almost certainly destructive.

Richard Reinsch (33:22):

No and that’s very well said in thinking also now we’ve become accustomed to it in the last, what? I would say, 15, 20 years to having these two ideologically distinct parties.

Christopher Owen (33:35):

Sure.

Richard Reinsch (33:35):

And it makes it… It’s interesting watching the debate over this Build Back Better bill that even within, say the Democratic party, but the Republicans aren’t immune from this either, but that there would be a handful of senators choosing against the President itself has become a spectacle. It’s interesting in that regard.

Christopher Owen (33:56):

And that’s part of the nationalization of politics. So Kendall would argue that those different representatives of whichever party they might represent really ought to be safeguarding the interests of their own particular district rather than serving well, what the national leader of their party might tell them what they should or should not do.

Richard Reinsch (34:20):

Also just thinking, Kendall was a part of National Review at the beginning and has a falling out with Buckley and leaves, and what was he doing in National Review? How would you characterize his writing?

Christopher Owen (34:36):

Yeah, so he writes a column called The Liberal Line, which is pretty much a regular feature in every issue from the founding of the magazine until 1958, so three or four years. And in that… It’s amusing to read, so he could write in amusing… His best writing’s pretty dense. You got to work, it works you.

Richard Reinsch (35:00):

Yeah.

Christopher Owen (35:00):

But he could write in an offhanded kind of satirical way. So he basically used that as a metaphor, arguing that there was kind of a liberal machine that had told its echelons what the right story was that they needed to come up with and follow, and that there was kind of a liberal machine that tried to control both parties. So he really kind of set out, I argue in the book, to kind of denigrate the term liberal and to make it not a term of praise, but one that you might hold with, if not contempt, at least not a great deal of respect. So he was pretty good at that. He was initially also, I think, the book review editor and he was sort of dropped from that. So Kendall kind of distinguished between his serious writing I think and his popular writing and his serious writing was not really that accessible to a mass reading public. And I think he, over time, wanted to focus more and more on his political theory and a little less on his popular writing, but he did value National Review and that was really important to him. And I think getting kind of eased out of that, that hurt him. He was kind of emotionally hurt by the break with Buckley and kind of getting pushed out, eased out at National Review. That was, I think, hurtful to him.

Richard Reinsch (36:31):

Yeah.

Christopher Owen (36:32):

But he had started focusing more on his formal academic political theory and less on his popular writing at National Review, which is one of the reasons he was eased out there.

Richard Reinsch (36:43):

That’s interesting. In Kendall’s overall writings, what do you find to be the most compelling?

Christopher Owen (36:56):

Gosh, that’s a little tough to say because Kendall, he doesn’t write one big, huge book, here’s my total theory. I think the thing about when you read Kendall and the thing that got me really fascinated with him, when you read Kendall, you go, I never really thought about it that way before because he says stuff in a way that nobody else said it. So I would say with Kendall, it really starts with we the people. That’s the key. How do we make democracy real in the modern world? He also comes in later life under the influence of Leo Strauss and Eric Voegelin. So Kendall does believe that there is an ethical, moral component, there is a right and wrong independently of what we think, what we do, grounded in Christianity or grounded in natural reason, whether that be this Voegelin or Strauss. But he also believes that the people are the most likely to enact that virtuous society, more likely than smaller self-interested bureaucracies or nine people on the Supreme Court. Trust the people, don’t trust the elite. Interesting, another thing he really talks about, this is really early, going back to 1938 in his career, he has a distrust that scientists know what’s best for society. He argues really… I mean, some of this I’ve thought a lot about with the COVID stuff. He argues back in ’38 that scientists know the mechanics of their field, but they don’t have any special insight into what the good is.

Richard Reinsch (38:50):

Yeah.

Christopher Owen (38:51):

So determining what is the good, he believes the people are just as good, if not better at that than the experts. So he believes we should trust the people to determine the good and that the experts should help guide the people in order of how they might enact their will.

Richard Reinsch (39:11):

So he has an… I mean, it’s a classical notion of politics in many ways of politics is an ethical pursuit, an ethical practice.

Christopher Owen (39:18):

Right. Absolutely.

Richard Reinsch (39:20):

And he’s constantly… And I think also, as I’ve thought about it and you said, he really looked to the political philosophy in the Federalist Papers to ground the Constitution. Sometimes I thought his understanding of Publius is almost like an anti-Federalist understanding in the sense of he wants to bring out virtue as a part of political deliberation and Publius has some nods to virtue, but it’s also very much focused on institutions themselves doing a lot of work and balancing those appropriately. What do you think of that?

Christopher Owen (40:00):

Well, Kendall did not like, in theory, the anti-federalists because that’s one of the things where it gets complicated. So he focuses on local government, but he’s not at all into states rights. He really-

Richard Reinsch (40:14):

No, no.

Christopher Owen (40:15):

… believes that Congress is the place… So it rests with Congress because Congress is where the structured communities from all over the country can send the representatives and these are, as I say kind of in the conclusion, they’re sort of Aristotelian best men to deliberate for the future of the country. So he really focuses on the powers of Congress and he really puts the central symbol, I think he says, is the people deliberating together in their assemblies, that he says is really fundamental and that. So I think he doesn’t say a lot about this, but I think he’s enamored of the British parliamentary system as it was in his day, which he thought safeguarded democracy as much as the structured judicial review and so forth that was associated with the American system. So he really put a lot of focus on that deliberation of the people. He thought the anti-federalists were, I think, too provincial, maybe, too focused on state’s rights, which he was not particularly sympathetic to, even though some have called him a Calhounite, I think that completely misunderstands where he’s really coming from. So really he believes a powerful Congress where representatives deliberate can best safeguard democracy at the local level, but that sovereign power rests at the center with Congress.

Richard Reinsch (41:52):

Yeah, and you allude to Harry Jaffa, I think referred to him as a Calhounite, and Harry Jaffa referred to a lot of people as a Calhounite. Steven Hayward, a student of Harry Jaffa said, “That’s an unfinished argument between Jaffa and Kendall and is worth reviving and worth thinking about.” I agree with Hayward. Talk about, maybe we can end with this, the title of your book is a great title, Heaven Can Indeed Fall, talk about the significance of that.

Christopher Owen (42:21):

Sure, so that comes really from a lecture that Kendall gave at the University of Dallas and it relates to Kendall’s reaction both to liberals who want to promote rapid social change and to conservatives in the Jaffa, I guess, Strauss camp. Kendall liked, actually he liked Jaffa for that matter, he got along with him fine on a personal level and he admired Leo Strauss immensely, but he saw danger in those who wanted to promote social change at all costs. So he says, “These are the people,” in this lecture, “who will do justice, even if the heavens fall. And I say to you,” he’s talking to his students, “heaven to can indeed fall and it can hurt those heads it falls on mighty hard.” And what he meant by that is if you promote your reform, liberty, or justice, whatever camp that might fall into at the expense of other social goods, you can collapse the whole social system. So if you want to promote liberty at the expense of the general welfare, well, that’s going to cause problems. If you want to promote justice and you don’t care about domestic tranquility, you’ll end up having neither, neither justice nor domestic tranquility. So he really looks a lot at the preamble and those six goods enumerated there have to be held in balanced tension. You cannot promote domestic tranquility at the expense of justice nor justice at the expensive domestic tranquility. They have to be held in balanced tension with each other. So as you know, I mean, Jaffa wrote Barry Goldwater’s “Extremism in the Defense of Liberty” speech and Kendall hated that speech.

Richard Reinsch (44:21):

Yeah, that’s interesting.

Christopher Owen (44:24):

Because he believed that you can’t… Extremism as a defense of liberty is a vice, if it destroys the other social goods in society. So those have to be held in balanced tension and if you’re promoting liberty and the society general welfare is collapsing, rural America’s dying, or something, then you got a problem.

Richard Reinsch (44:49):

Yeah. No, well said. Christopher Owen, thank you so much for coming on to discuss your new book, Heaven Can Indeed Fall. Thank you.

Christopher Owen (44:57):

Thank you so much for having me on Richard. It’s been a pleasure.

Richard Reinsch (45:02):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

Grappling With Logistics Dec 23, 2021

Richard Reinsch (00:04):

Hello, and welcome to Liberty Law Talk, I’m your host Richard Reinsch. Liberty Law Talk is featured at the online journal Law & Liberty, which is available at lawliberty.org.

Richard Reinsch (00:18):

Hello, and welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Michael Rentz about all aspects of the supply chain crisis. Mr. Rentz is the chief revenue officer of Gnosis Freight, an international shipping company based in Charleston, South Carolina. He also previously worked for Maersk in their shipping operations, so he knows the industry really well, and has thought a lot about its problems in our current scenario where they stem from, and is here to talk about it with us today. And I think he brings both an interesting perspective, both economically, both theory, and also in the practical problems, and details that he has encountered working in this industry. Michael, welcome to the program.

Michael Rentz (01:03):

Thank you, Richard. I appreciate you having me. It’s an honor to be on the podcast, and I appreciate the opportunity. So thank you.

Richard Reinsch (01:10):

Great. So thinking about the supply chain crisis, this thing that has exploded in American life, and has affected everything from new cars, semiconductors, shelves at Target and Walmart, energy. And so we’ve got a lot of things happening that people don’t like and are experiencing, and a lot of fingers are being pointed, and there’s a lot there… As you and I were discussing offline, there are numerous causes contributing to this but maybe before we get into that, just to help us give us the context for the supply chain, international supply chain. I mean, as I was thinking about this, a small business owner has a supply chain. It may just be that all of his products are sourced locally, but he has some sort of supply chain he’s got to do to bring his business together. It’s just that the supply chain crisis we’re discussing is truly international, but help us understand what is the supply chain, and what has it become in American life over the past two decades?

Michael Rentz (02:10):

Great question. And that’s a great place to start to kind of frame up the fundamentals of what we’re dealing with regards to supply chain. The way I describe it is I tell people it’s a loose collection of a lot of different industries. It’s not one monolithic industry supply chain. Under that umbrella are huge industries in and of itself like ocean carrier industry, ports, warehousing, factories, trucking, air freight, as well as trains… Rail. So a tremendous amount of economic activity under the umbrella of the supply chain. And what that means is it’s a massive problem that deals with how they communicate with one another as they’re passing goods along through the chain. The one ubiquitous part of the entire industry is the container itself, the international shipping container, which revolutionized the industry in the 1950s. And so that’s ironically enough the perspective I take when analyzing the supply chain is that of the container as it goes intermodally, through the entire supply chain.

Richard Reinsch (03:15):

The container. I’ve read that this is an important factor. How did international shipping happen before the container, and what did it do in terms of volume speed, things like that?

Michael Rentz (03:29):

Right. So before the container, when it came to moving goods on boats, primarily, I mean, people literally picked them up in rope nets off the docks, and loaded it, floor loaded it onto the vessel. And you could… As many goods as you could fit on the deck of the vessel was about as much goods as you could transport. And it was just a massive bottleneck, and taking it from one mode of transportation to the next. And obviously, the throughput, the amount of goods you could fit through the entire system, was tiny. When they created the container, I think in 1955, it was a uniform point to which every different party involved in moving goods, adjusted to the trucks, the ocean carriers, the rail. And then, in addition, it made it much easier to store those goods on the vessels. So if you look at an image of a vessel, it’s not just the containers you see stacked up on top of the vessel itself. It’s stacked way below deck as well. So it really is almost unmeasurable or incalculable as far as the magnitude of difference that made.

Richard Reinsch (04:35):

Yeah.

Michael Rentz (04:35):

To moving goods and really international trades.

Richard Reinsch (04:38):

So you’re saying the container, it’s not just international shipping on these massive cargo vessels. It’s also, then you unload it, and it can be put on an 18-wheeler. It could be put on rail. Its goods can be easily dispensed with, and then reloaded. It can be shipped back to its point of origin, and then reloaded. It offers an array of uses that makes shipping quicker, stronger, faster, cheaper, all of those things.

Michael Rentz (05:05):

Exactly. It’s standardized, there’s only a handful of different container sizes and everybody adjusts accordingly.

Richard Reinsch (05:11):

Question. Just how big is a container. I mean, could you live in it?

Michael Rentz (05:14):

You could. People do. It’s very trendy right now. The most common size is what’s called a 40-foot container. It’s 40-foot by, I believe, eight foot by eight foot. The other unit, depending on the entity, measures them in 20-foot. But I would say an overwhelming majority of the goods are moved in 40-foot containers. They have, in addition to that, what’s called a 40-foot high cube, which is 45 feet long, and a bit more space you can utilize inside as well as what’s called a 53-foot container, which is oftentimes referred to in this country as a domestic container because the United States is the only country on earth that has the infrastructure large enough to move those 53-foot containers. So you won’t see those going around Europe or Asia. Ironically enough, they’re manufactured in Asia, the 53 footers. And so, a lot of retailers compete to get access to those 53-foot imports. They’ll ship the asset itself with goods inside of it. Then it will live here in the United States for the remaining time. The last point is if you see goods moving in a 20-foot container, it’s usually incredibly heavy stuff. It’s what’s called loaded-out, as opposed to cubed-out, you move light goods in 40-foot containers, and heavy goods in 20-foot containers.

Richard Reinsch (06:23):

And also, I remember being in a hotel room in Savannah, Georgia a couple of years ago, and I was on the water. And I remember looking out my window, and almost losing my breath as one of these massive cargo ships sailed by. I mean, this largest thing I’ve ever seen, give us a sense of how big these vessels are.

Michael Rentz (06:42):

The new ones, I think Maersk calls them the Triple E vessel are large enough to put the Empire State Building inside of them. They’re about 20,000-

Richard Reinsch (06:49):

That’s incredible.

Michael Rentz (06:50):

20-foot equivalent to these container ships, which are huge.

Richard Reinsch (06:54):

Yeah.

Michael Rentz (06:55):

And some of the largest vessels in the world, those don’t even call the east coast. The infrastructure is not even big enough. So the ones you saw in Savannah are pretty big, but not the biggest in the world. Funny enough.

Richard Reinsch (07:07):

So thinking about America’s ports, but before we get to that, let’s just think more about… So we talked about sort of the nuts and bolts of how these goods travel. Why did the supply chain come to be so… Such an important part of American commerce? I suppose part of that is the free trade globalism story of the last 20 years, but also, in the search for cheaper costs and the ability to deliver products at that cost to American consumers, there’s also something else which is, they seemed to really make it work and delivered high-quality goods and services that people wanted to buy.

Michael Rentz (07:38):

That’s right. And I spent a lot of time thinking very deeply about this, and what I can come up with is about 40 years ago, you really start to see offshoring, and the primary objective of that was cost. And the reason they utilized it for cost is because cash became king. Ultimately, I mean the largest export in the United States really today is cash. And that is where most companies make their money is lending their dollars. And so, they wanted to create as much working capital cash-on-hand so they could invest it in the markets to make more money. Walmart, for example, their business model is literally to sell their products on their shelves at a loss. They have incredible terms. They collect on those goods immediately and have 90 or 120-day terms before they have to pay. And they just invested in the markets and take seven, eight, nine percent return. That’s pretty much how they make a lot of their money. So I think that became a structural problem in the economics where everybody was optimizing for cost, as opposed to optimizing for efficiency. And that just kind of perpetuated itself decade over decade. And everybody assumed this is the way you do it.

Richard Reinsch (08:43):

So are you, and this is interesting, so you work in the international shipping industry, but you’re saying that there’s something structurally wrong with it?

Michael Rentz (08:50):

Fundamentally yes, I do think there’s something structurally wrong with it. I mean, it’s not just in our industry. If you look at the best and brightest minds are going into financial services, everybody’s trying to optimize cash… I think that’s not a sustainable way to do business ultimately.

Richard Reinsch (09:10):

Okay. So let’s maybe think more about the supply chain issue here. I mean, cause I guess part of that would be we’re the world’s reserve currency.

Michael Rentz (09:16):

Right.

Richard Reinsch (09:16):

And as the world’s reserve currency transactions are going to happen in dollars, they’re going to be pegged to dollars. So foreign companies, foreign investors want dollars in order to engage in those transactions. I mean, part of that’s understandable, and is that actually, most people say that’s actually a benefit to America globally. And also it seems that the search for or lower cost is understandable and also allows for comparative advantage and to develop highest-end uses and the most advanced-

Michael Rentz (09:43):

Right.

Richard Reinsch (09:43):

Technology to dominate the American economy. So I understand that, but the supply chain itself becomes sort of, a product of offshoring, but talk about more in depthly about what happens, and we just pick a company, how do they operate? How do they work? How does this come to be?

Michael Rentz (10:00):

Yeah, great question. So, I think one component to chat about is landed cost, which is actually pretty simple. It’s the cost to make, manufacture, plus the cost to import, your transportation costs. And when initially, globalization offshoring began that landed cost was very low. That’s why it was such a good business objective. But as of recently, for a multitude of reasons, that landed cost has gone up tremendously. And unfortunately, that’s being pushed a little bit to the consumer, and we can chat about that later. But most retailers, it’s a giant pareto distribution. About 10 to 15 companies import an overwhelming majority of the goods. And then there’s a long middle and smaller tail. And most of those companies are set up doing what their main objective is, take a garment importer or a clothing company that sells goods. They’re great at selling shirts. And so their expertise isn’t necessarily in moving goods or getting those goods in. They know what they want and they know who… How to sell it to their customers. So they outsource their logistics to a variety of different players. And here we go with the supply chain. So they have factories primarily in Asia, mainly in China, but some in Southeast Asia as well. And then once they are monitoring those inventory levels to try to sell as many T-shirts as possible, they cut purchase orders. They go to their factories that then start producing to make sure that they don’t stock out on the front end to the customers. The last thing they want is to not have any shirts to sell to their customers and miss out on that opportunity to collect the cash. So the factory will make it. And then those t-shirts that are made, let’s say, China for this example, need to get from the factory to the port. So they’ll dispatch an empty container from the port. A trucker will pick it up, take it to the factory, stuff the container, and then bring it back to the port. Then that container needs to get onto a vessel, traverse across the ocean. While it’s going across the ocean, it needs to clear US customs, which is a very burdensome process in a lot of regards, get off the vessel into a port, and then get from the port onto a truck to a distribution facility, probably from a distribution facility to a retailer. And that’s the simplest way to explain it. So they say on average, a container changes hands 20 times on its journey.

Richard Reinsch (12:17):

Okay. So talk about one part of this is this idea of the bullwhip effect. And that’s playing out right now in America, where I guess would be where the whip strikes, so to speak, but that’s being delayed. Talk about that.

Michael Rentz (12:33):

So the bullwhip looks like a bullwhip. It’s the small amplification at the beginning, but at the end of the tail, it’s massive. And so, in that chain, when that retailer cuts those purchase orders, the factory sees a huge order come in. And then that factory places another order to their suppliers for more goods because they’re anticipating that there’s all of a sudden going to be a long sustaining spike in demand. And that just amplifies throughout the entire process where everybody in the chain orders more, and then you get a massive amount of goods trying to flow through the system that may not necessarily truly match the actual demand. And then, from there, everybody’s playing catch-up, and that’s exactly what happened, I think, at the beginning of the pandemic.

Richard Reinsch (13:20):

So with the bullwhip, but also there’s this idea too, of like a delay results in a huge, huge delay on down the line.

Michael Rentz (13:27):

Right. Conceptually it’s the same thing. So, everybody’s pretty much operating on a weekly schedule, and maybe like a 10-minute delay, say, in Shanghai, could result in a 10-day delay in Denver, as those delays process through the system, the handovers miss, the windows miss for an opportunity to exchange the container, and it’s pushed off a week, or it’s pushed off a few days until they have the rhythm, the capacity to pick it back up and keep it moving. And, it just throws off the entire system, which is already brittle, to begin with. I mean, it’s really stretched out like a rubber band, again, optimized for cost, not necessarily optimized for efficiency.

Richard Reinsch (14:03):

Yeah. So efficiency here. That’s something I also want to discuss with you. So we know, I mean, COVID diminishes production across the globe for obvious reasons.

Michael Rentz (14:12):

Right.

Richard Reinsch (14:12):

A number of governments, particularly Western governments, the United States, print money, gives it to people in the form of stimulus payments, and then-

Michael Rentz (14:21):

That’s right.

Richard Reinsch (14:21):

People spend it, and we’ve got, the money supplies increased dramatically in this country, and people are spending money. And we’ve also got this strange effect no one I think counted on of the workforce diminishing, although that would seem to allow with the incentives of giving people money. And so we’ve got labor shortages, increased cash. And so we’ve got all sorts of problems, and we now have inflation. So we know all that. We know that’s a part of this problem. You and I are discussing on a micro level and tell me where… What you would add to that. But it’s also the case. When we think about these issues, there’s a lot of ways in which the government has interacted with the pieces of the international shipping supply chain industry that are not beneficial to a market. I mean, you said it’s price-for-cost. Well, that, duh, we know that, but it’s not priced for, or it’s not acting according to efficiency. Maybe we should talk more about that.

Michael Rentz (15:18):

Sure. There are… We do have good examples, both domestically in the United States and globally as like the premier operating model for certain legs or certain components of the supply chain, take ports, for example, whether it’s Rotterdam in Northern Europe or the Southeastern ports of the United States, the Virginia Ports Authority, South Carolina Ports Authority, Georgia Ports Authority, I think have the premier models, which is one governing managerial structure, the South Carolina Ports Authority, or the Georgia Ports Authority, for example, and a non-unionized competitive labor force that is a meritocracy fundamentally. And they are competing to be the best of their jobs because they get paid more to do so.

Richard Reinsch (16:00):

Yeah.

Michael Rentz (16:00):

Compare that to New York, New Jersey, or the ports on the west coast. It’s the opposite. There’s a tremendous amount of friction at the top. The port is really a landlord. And then there’s a lot of different entities that manage the port. So inherently, there’s a lot of friction and communication issues. And then, on the labor side, it’s completely unionized, and they’re not ultimately competing to be the most efficient. They’re trying to make the most money. And funny enough, they make the most money when they’re working overtime. So it’s… They’re disincentivized to work as efficiently as possible. And then in a moment like post-pandemic world where there’s a gluttony of goods flowing through the system, you absolutely need efficiency. And that is part of the problem.

Richard Reinsch (16:45):

So it’s interesting. You mentioned the ports, so just comparing American ports to ports around the globe, which is at a comparative disadvantage in how we receive goods, but ultimately the voracious demand of the American consumer overrides that, those problems to a great extent, I imagine. So, but then not to say that we shouldn’t fix it, but how do you… You mentioned the Rotterdam port, how does that operate?

Michael Rentz (17:09):

The Dutch have always been incredibly forward thinking and progressive with logistics or with water resources, and if you’ve ever been to Holland, you can see that firsthand.

Richard Reinsch (17:19):

Yeah.

Michael Rentz (17:19):

The terminal that I have firsthand exposure is the APM terminals. The APM is the Moller – Maersk company, the parent company of Maersk, and it’s completely automated. There are literally no human beings on the port. If you walk over a certain line, the entire port shuts down. The crane operators work virtually. They work in an office off the port, and they have a joystick. And I think it’s virtual reality, and they operate the cranes from there. And so it’s perfectly optimized. Now, would that work in the United States? Probably not. I think we need to give people good-paying jobs so they can take care of their families. But I think I read something. That’s how the Virginia Ports Authority apparently was able to withstand the most recent crisis was they had relied heavily on automation. Now that’s not the solution, but it’s certainly a factor.

Richard Reinsch (18:07):

Well, I mean, I would think that is the solution. I mean, it’s… This is creative destruction. This is how a capitalist economy advances, would be automation.

Michael Rentz (18:17):

Yeah. I mean, totally.

Richard Reinsch (18:17):

I would… I mean, I would disagree with the notion that we’re supposed to lock in these jobs to help people protect their… Care for their families. I mean, to me, that’s actually the recipe for decline. If we try to lock in the…

Michael Rentz (18:28):

Fair enough. Yeah.

Richard Reinsch (18:28):

Economy into one labor system. It’s funny listening to you I was thinking of that. I think it’s the second season of The Wire, maybe the third season of The Wire. Where we’re… We get to sort of look at the Baltimore port through the lens of this family, intergenerational family, that’s worked in the Baltimore port, and at the end of the season, they’re introduced to automation, and they’re sort of scratching their heads about it. This means to me, yeah, no, I was reading about the Virginia port. Semi-automated, and it’s been of what I’ve read, it’s been the only port in America free of backlogs. And that would seem to accord with what you are saying internationally, that this is just a more efficient way of doing it. And yet obviously there’s a lot of built-in invested interest who resist that. And that’s clearly what we’re seeing in California.

Michael Rentz (19:20):

Right. I would add the port of Charleston in there. I’m pretty sure they’d never-

Richard Reinsch (19:23):

Yeah.

Michael Rentz (19:24):

Sustained any type of backlog. And I’m from South Carolina, and any time I worked at Maersk, that seemed to be the sentiment globally. I would sit in the conference room, and they put a map at the United States up in South Carolina would be colored a different color, and it’d be for a good reason for the first time ever. And it was because it was the premier port, people globally recognize how good the South Carolina Ports Authority system is. I think we chatted about so Virginia relies heavily on automation. I know more about the South Carolina Ports Authority, and they rely on a competitive workforce. And as we also talked about, they also have the only recent CapEx infrastructure project, which started in 2009 to double the capacity of the port here in Charleston, in the entire country.

Richard Reinsch (20:06):

Well, now that’s interesting as well. So that would be South Carolina as a right-to-work state is free of, say, the longshoreman’s union-

Michael Rentz (20:14):

To a certain degree.

Richard Reinsch (20:15):

That dominates ports. So there is some unionization of the port?

Michael Rentz (20:18):

Right. But the overwhelming majority of the port’s staff are employees of the Ports Authority, and it’s a right-to-work state.

Richard Reinsch (20:27):

In Charleston?

Michael Rentz (20:27):

For example, and this is a few years outdated, and my numbers may be slightly off, but the base salary of the crane operator for a year, $70,000, but the top-performing crane operator, I believe, took home somewhere around $170,000.

Richard Reinsch (20:39):

Wow.

Michael Rentz (20:40):

That year, because they were paid per container to take off the vessel. And so at one point in the last few years, this may be off as of super recently, but the Port of Charleston was the most efficient port in North America, as well as the fastest growing and what they could turn a vessel over in one day, it would take people in LA Long Beach, seven days to do that vessel.

Richard Reinsch (21:02):

That’s incredible.

Michael Rentz (21:03):

That’s the comparative difference. And that I believe, is why elevating what I would call meritocracy at the labor level, so important to efficiency as opposed to call.

Richard Reinsch (21:13):

Oh yeah. So, but yeah, I mean, I was reading, just doing some research for our discussion here today, the longshoreman’s union at the ports in California, average worker there makes over $200,000 a year.

Michael Rentz (21:26):

Right.

Richard Reinsch (21:26):

Which that seems like a generous income, but also seems like one, that’s the result of a lot of protection, a lot of labor protection-

Michael Rentz (21:33):

Right.

Richard Reinsch (21:33):

A lot of insulation from competition to the detriment of a much broader group of people, namely the American consumer. And then, also thinking about our ports, dredging, which would be necessary for growing ports. I mean, so we think about…

Michael Rentz (21:48):

Yes sir.

Richard Reinsch (21:49):

International shipping increasing in volume, which I assume is a pretty regular thing or was, and will be again, do the ports themselves, are they able to update the way you think they should? Or are they themselves hemmed in by a lot of regulation?

Michael Rentz (22:03):

Yes and no. I mean, I’m looking out the window at the Charleston Harbor right now, and there’s, there’s always going to be dredgers out there. So the key number is 52 or 54 feet. You don’t want to be tidally restricted to be able to handle the big vessels, and it’s the ocean. So you need to constantly dredge to do that. That project started in 2009. So it had to go through the Army Corps of Engineers. It’s just a very lengthy, clunky, and robust process that you got to have good leadership. You have to have good foresight and a good finger on the pulse of the macroeconomics of where the goods are going to go. And so, thankfully, the port of the South Carolina Ports Authority has probably the best leadership of all the ports in the country right now, contrast that maybe with some of the other ports who don’t necessarily have that vision in-

Richard Reinsch (22:49):

Yeah.

Michael Rentz (22:50):

Overly burdened with their regulatory environment per… By state.

Richard Reinsch (22:54):

Good. Just a question, the Charleston port, so you’re singing its praises. This is great. That’s what seems to compete with what I would think, but where does it rank in terms of volume of goods received routed to the other ports in North America?

Michael Rentz (23:06):

I think it’s eighth right now. It could be seventh or eighth or ninth, but it’s in the top 10.

Richard Reinsch (23:12):

Out of how many? How many ports do we have?

Michael Rentz (23:15):

It depends. I mean, there’s a lot of niche ports.

Richard Reinsch (23:17):

Okay.

Michael Rentz (23:17):

But I mean probably 10 to 15. I could rattle them off.

Richard Reinsch (23:20):

Yeah. That’s okay. That’s okay.

Michael Rentz (23:21):

Yeah. Main ones. But I think it’s important for everyone to know, imports go to population centers, imports go to cities. So in the Southeast, they go to Atlanta, Charlotte, Raleigh, they go to New York, DC, Miami, LA, but exports come from the rural places of this country where land is cheap, and labor is cheap. So there’s an inherent problem of getting that equipment. The container specifically from where it was unloaded, say Atlanta, to a rural part of Georgia or South Carolina to where there’s a factory. If there’s a factory, to put goods in it, to export it to somewhere. Unfortunately, because of the trade imbalance in this country, and this goes back to what we were talking about initially, the largest containerized export in the United States of America today is air. It is empty containers. We send more empty containers back to China to put more stuff in and then to bring it back into the country than we do anything. And I think second and third in that is scrap paper, scrap metal, scrap cardboard, things like that. Again-

Richard Reinsch (24:21):

Yeah.

Michael Rentz (24:22):

To go back to those countries to make more stuff, to put it back in here.

Richard Reinsch (24:25):

Well, I mean, trade imbalance doesn’t really bother me. It doesn’t bother me one, just thinking about the dollar being the world’s reserve currency, but also because the people outside of America are investing American dollars into American equities, also into bonds, treasuries, things like that. So you can say it’s a trade imbalance, but I think what we actually have is probably an equity imbalance, and that doesn’t bother them. I think that works long term to the benefit of our economy. And I think we export air because we have a lot of hungry consumers. We have a lot of voracious demand, and we want a lot of goods delivered here that it may not make sense for us to produce ourselves. We could produce them, but what would be the cost that we would bear doing that? Thinking about the Jones Act, I’ve read just things that have made things worse. I mean, both preceding this crisis but have made it worse. The Jones Act entails American chartered vessels have to move goods between the ports. And that, of course, is a high cost, and that’s a regulatory cost and which would raise prices, et cetera, decrease of efficiency. What do you see there?

Michael Rentz (25:30):

Right. So American flagged to American made, and I think American owned and operated, which there are no American ocean carriers anymore. So inherently, that’s a problem. The Jones Act, I think, was created in 1920. North America. The United States has the most navigable river system, I believe in the world, and we don’t utilize it. So it’s a huge problem. And it’s not contemporary in the least.

Richard Reinsch (25:51):

And is that… And that’s because of the Jones Act? The navigable river problem.

Michael Rentz (25:55):

I believe in part, yes sir.

Richard Reinsch (25:57):

Yeah.

Michael Rentz (25:57):

So you can’t deliver goods, let’s say from New York to Miami via ocean, it’s got to go over land.

Richard Reinsch (26:03):

Well, yeah. That’s a problem.

Michael Rentz (26:03):

That clogs-

Richard Reinsch (26:04):

I-95 is a problem.

Michael Rentz (26:07):

Right? And so, it sucks up the capacity of trucks and trains to make these long haul moves when they could be put on what’s called a feeder vessel, which is not the giant vessels that you can put the Empire State Building in, but smaller vessels, which is common to Europe, Southeast Asia, the rest of the world to transport goods domestically, via water. And with that new capacity, that’s not being sucked up, to move these goods across the land, they could be used to do what’s called drayage, which is short haulage from the ports to the distribution centers, usually about 30 miles. And that’s where a lot of the congestion is, around LA, Long Beach, New York, New Jersey, Charleston, everywhere. Those trucks are taking the goods out of the port complex to a distribution center nearby and back. They try to make three or four runs a day. And a lot of that capacity, because there’s already a trucker shortage of 80,000 drivers in this country are doing long hauls, because we can’t use the navigable waterways. And because we’re not using domestic ocean moves. So the Jones Act certainly is antiquated and old, and definitely needs to be revisited. I don’t know if I have the answer myself, but if we get enough smart people around the table.

Richard Reinsch (27:15):

Well, I mean, you just delete the legislation, right? I mean, just end the legislation, which is inhibiting markets, inhibiting price discovery, it’s inhibiting how people would actually engage in commerce, but for the cost associated with this bill, this legislation, and things would move a lot better. So I don’t know. I don’t think it’s that complicated, do you?

Michael Rentz (27:37):

No. I mean, yeah, in theory, it shouldn’t be. I mean, I would love to see an American ocean carrier come up. There are certain, what they call Jones Act carriers that will make feeder runs from Florida to Puerto Rico or from Seattle to Alaska. But they’re tiny. They have like four vessels in their entire fleet, but I would love to see that. I would love to see an American ocean carrier emerge. I would love to see us take advantage of the navigable waterways with a barge system. Northern Europe does an incredible job of barges. And I think that would alleviate a lot of of the problems.

Richard Reinsch (28:10):

Yeah.

Michael Rentz (28:10):

As well as a real infrastructure investment into some new ports.

Richard Reinsch (28:14):

Yeah.

Michael Rentz (28:15):

Our ports are confined by these old cities that haven’t grown. Take Charleston, for example, 400 years. It’s confined to how the city developed, the population developed. And if you want to make infrastructure investments, if you want to find empty land to store containers, it doesn’t exist. Doesn’t exist in LA, Long Beach, it doesn’t exist-

Richard Reinsch (28:31):

I can only imagine, and I know nothing about this, but I can only imagine the regulatory cost associated with trying to create a new port or enlarging an existing one to fit new market realities. I imagine it’s a mess.

Michael Rentz (28:45):

Right? I mean-

Richard Reinsch (28:46):

Years, years, years.

Michael Rentz (28:48):

Decades process.

Richard Reinsch (28:49):

Yeah, exactly.

Michael Rentz (28:49):

It’s a decades process. I know South Carolina and Georgia Ports Authority are exploring building a joint terminal in Jasper, South Carolina. And I think the goal was 2030 or 2035 and they started on it five years ago. So the foresight…

Richard Reinsch (29:04):

Yeah.

Michael Rentz (29:04):

Is in leadership has got to be…

Richard Reinsch (29:08):

Talk about the intermodal chassis. I’m reading here 221% trade remedy tariff on imports of the intermodal chassis from China. That can’t be helping us.

Michael Rentz (29:22):

That’s a funny problem. It’s not the main problem, but yeah, so there was the shortest of chassis, and chassis are the metal frame with the wheels that the container sits on. So, the 18-wheelers that people see on the road aren’t really how the containers move. You have a truck, a big trucker that goes to the port, grabs a chassis, hooks it to their… The cab of their truck then goes and picks up the container. So it’s three parts that metal part with the wheels is the chassis. There was a shortage of them. So they decided to order them. And they’re all manufactured in China, and they’re stuck in the same supply chain crisis that we’re trying to solve. And they won’t get here to the middle of 2022. So that’s just a funny problem. The real problem is who owns the chassis. So I think about 10 years ago, the ocean carriers Maersk, CMA, MSC, Hapag-Lloyd, these big international ocean carriers owned the chassis. And it was a problem. People complained it cost the industry billions of dollars a year. And so the ocean carriers said, fine, we’ll sell them. They sell them to private equity groups. And so the private equity groups care about one thing, and that’s sweating the assets out to get as much cash as possible out of them. They don’t necessarily care about the industry or efficiency or anything like that. So the chassis are inherently a problem. And it’s a big problem. And it’s incredibly complex. I mean, I’ve tried to read and study about it, but it has to do with who owns them, how you rent them, who takes care of them, who fixes them when they break.

Richard Reinsch (30:46):

And I suppose, I mean, just for our listeners, the function of it, right? This is what allows you to move the containers.

Michael Rentz (30:52):

Right. The container is just a metal box.

Richard Reinsch (30:55):

Over land in a truck, right?

Michael Rentz (30:57):

That’s right.

Richard Reinsch (30:58):

Yeah.

Michael Rentz (30:58):

That’s right. So, the trucks don’t have… It’s not a trailer, it’s not hooked, like I said, you see the 18 wheelers, it’s just the front of the truck with the trailer hitch basically.

Richard Reinsch (31:09):

Yeah.

Michael Rentz (31:09):

And they come to the port, they pick up the chassis, go get the container, et cetera.

Richard Reinsch (31:13):

As you’ve worked in this, international shipping. And you’ve thought about the elements of the “supply chain,” quote unquote, is it a dynamic industry? I mean, we’ve been in sort of sending forward the case that it isn’t, but shouldn’t it be? Maybe parts of it are, you can enlighten this, but what do you see as the future and what do you see as holding things back? Am I overly insisting upon sort of the… A free market store here that’s not being allowed to work or what’s… What do you see as going on overall?

Michael Rentz (31:46):

So I’ll take the perspective as an American, and I think we have stretched the rubber band about as far as we can possibly stretch it. I just can’t conceptually in my mind, think about how much more globalization there can be. I mean, we’ve pretty much tried to extract as much value as we can from the system. That plus the pandemic, I think there is going to be a natural reshoring of goods. And I think the ground today is different than it was a few decades ago when offshoring began. And what I mean is I think people are more equipped today to move back closer to what I would call only mile delivery, as opposed to last-mile delivery, which is like a completely vertically integrated supply chain domestically for certain goods.

Richard Reinsch (32:24):

Mm-hmm.

Michael Rentz (32:26):

So I think we’re going to see the pendulum swing back towards that way. Certainly, different administrations will help and probably incentivize people to do so. I think it would be best for the American citizen to have some of those goods back, but certainly, access to capital, access to information, and access to technology is different today than it was, say, 40 years ago. So if you and I wanted to go start a toilet paper manufacturing company in rural South Carolina, the likelihood that you and I could do that today versus 40 years ago is extremely high. I mean, we could take… The cash is there to go out and finance the equipment. The equipment is much more advanced today than it was. It could be highly automated. And then, with access to information, whether it’s YouTube or any other online resources, we could learn what it takes to run a toilet paper business. And that’s a very small and limited scope of an example. But I think in general that’s the American spirit is people will take it into their own hands. And then that’s a truly resilient supply chain. You’re buying from your neighbors to a certain degree for certain goods.

Richard Reinsch (33:27):

Yeah. I mean, my sense is, thinking about the… Just to continue talking about toilet paper here. So, we ran out during the pandemic, a lot of panic buying, and we heard a lot about pharmaceuticals of not being available, potentially the way that China could make things unavailable and make things scarce for their own benefit. Vis-à-vis America. And of course, now this dawning realization that China isn’t… Not is it not, no longer an ally, it’s not even really a competitive partner or an opponent, but maybe an adversary. And the realization-

Michael Rentz (34:03):

Mm-hmm.

Richard Reinsch (34:04):

That the last 30 or 40 years of our thinking about China was wrong and okay. And of course the Chinese government in the last five or six years seems to be interacting in a much more aggressive authoritarian manner. Not that it wasn’t before, but even more so. And so I understand all of that at and, but it is… I mean, it does seem to be the case apart from what’s happened with the pandemic and the way governments have dealt with it, which I think has been not optimal. It does seem like the supply chain has worked and held up nicely. I mean, I don’t know of anything. Certainly the pharmaceutical… I don’t know of anything we really missed out on or that we had dramatic shortages and that weren’t sort of replenished fairly quickly. And I wonder overall with the crisis that we’re in, you tell me, seems to me, we’re going to work through it, despite all of these government issues and the way they’re impeding it, we’re going to work through it probably by the middle of next year. What do you see?

Michael Rentz (34:55):

Yeah, no, that is the best point. And that’s exactly right, is the industry as a whole is operating, it is working. It’s not broken. It’s clogged, but the people of the industry are the best workers in the world. And our entire country really sits on the back of them; whether it’s the truckers or the port operators, or the inbound logistics managers for those retailers, they don’t get enough credit. And they have been working tirelessly to make sure the goods keep moving. And they have. There might be delays on your new couch. It might not be six weeks, it might be six months, but ultimately those should flush through the system by the middle of 2022, barring that they don’t inject any more stimulus capital into the system where people go out and reinitiate the bullwhip effect. So yeah, I mean, it should flow out, and then hopefully once the systems unclog and then more at a steady-state, we can start to have serious conversations about the regulatory environment at certain ports about real infrastructure projects, about opening up some of the navigable waterways to better prepare for the next system. I mean, really, the supply chain industry has dealt with one catastrophe after another. It’s just the whole world knows about this one, but it seems like every few years, there’s a problem. And the industry always seems to swallow it and handle it. But now’s the time.

Richard Reinsch (36:16):

Well, that’s testament to the industry and also to market forces themselves and how they can incentivize people to make things happen. Absolutely. Michael Rentz, thank you so much for joining us today to talk about our supply chain crisis and the industry itself. We really appreciate it. Thank you.

Michael Rentz (36:33):

Thank you, Richard. I appreciate it.

Richard Reinsch (36:36):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk available at lawliberty.org.

What's Wrong With America? Dec 15, 2021

Richard Reinsch (00:04):

Hello, today we’re talking with Sam Gregg about the question, “What’s wrong with America?” Sam Gregg, many of you know, is a contributing editor at Law & Liberty. He’s also, his day job, he’s a research director at the Acton Institute. He’s the author of numerous books, including, he’s been on this program to discuss Wilhelm Ropke’s Political Economy and Becoming Europe. He’s also the author of the prize-winning book, Reason, Faith, and the Struggle for Western Civilization. He contributes to a number of publications and he is also a visiting scholar at the Feulner Institute at the Heritage Foundation. Sam Gregg, welcome back to Liberty Law Talk.

Sam Gregg (00:56):

Richard, always good to be with you.

Richard Reinsch (00:58):

So Sam, this question now “what’s wrong with America?” We can also discuss what’s right with America, sort of inspired by GK. Chesterton’s great book, What’s Wrong with the World? Now we don’t have to be as theological, obviously, as Chesterton, but it is to suggest that, or not to suggest, but to say there’s something wrong with America. Many people sense it. It has many facets to it. You follow political economy, you follow law, constitutional thinking, social thought, just any number of areas you write on. And so, I think you can address this well.

There was an essay published this week that a lot of people are talking about. Yuval Levin’s, “The Changing Face of Social Breakdown,” was the title, it was published in The Dispatch earlier this week, this being the third week of November. And Yuval Levin advances something in there that resonated with me. He said in the nineties, and that’s sort of when I was coming of age, that we had this sort of impression of America, still the high crime rate, a lot of anti-social trends, up-ticking, and a lot of just frenetic energy, a lot of chaos in America, a lot of dislocated people who had not been formed well, who had been let down by institutions.

And he says in this essay, we may have the opposite of that problem now in America. We may have a lot of passivity on the part of individuals pursuing education, pursuing career, pursuing family formation, having children, we’ve seen a decline in divorce in America, but we’ve also seen decline in marriage in general. We’ve seen a decline in out of wedlock childbirth, but we’ve also seen a lower birth rate. And so, Yuval wondered why is that? And he thinks it, there really are no scripts anymore. And in the absence of scripts for people’s lives, people become inert and passive, and that has its own set of consequences. Let me ask you, I didn’t know if you had a chance to read that, but how do you react to that?

Sam Gregg (02:57):

Well, I did read the article and there are things that I had thought that Yuval Levin got right and there are things I suspect I’d quibbled with, because I think it’s true to say that the scripts to use his term have broken down to a certain extent. The American story, which maybe because I’m an immigrant, I tend to pay more attention to, but the American story of people coming to the United States or being born in the United States, they’re experiencing a path of upward mobility socially, economically, educationally, that story seems to have broken down. So that narrative, which has informed a lot of American political discourse has informed the way that Americans think about themselves and their country and the history of the United States. I think it’s true to say that there are many Americans who are skeptical about whether it’s even possible to live that story any more. There are some groups, some thinkers in the United States who would argue that it was always a myth and that it’s a myth that has covered up numerous sins on the part of the United States that are being present for a very long period of time, whether it’s the sort of the legacy of slavery or whether it’s the various isms that they say are permeating American society. So there’s lots of different ways of thinking about what’s gone wrong with America. I would say in many respects, that it’s also a question of ideas.

And to my mind, there are significant groups of people on the left. And now, by the way, some groups on the right who aren’t just questioning the scripts or the script as it was laid out for so many people coming of age in the 1980s and 1990s, there are people who are fundamentally questioning the founding of the United States, the key thinkers and ideas that have formed the basis of the United States, who are presenting a vision of American history as one of numerous forms of oppression. And many of these people, many of these groups have been very present in some of America’s major culture-forming institutions for quite some time.

And I’m not simply thinking about obvious places like the universities, where since the late 19th century, we had many professors often educated in German universities who came back and had a whole vision of essentially dispensing with the founding in many respects and adopting what came to be called the progressive agenda, through federal government, top-down management and administration of society, because bottom-up faith in freedom was messy and disorganized.

And so, if you go through the 20th century, that influence has always been there. And I don’t think you can discount the effects of the 1960s and particularly the generation of people that were formed in that period, that the thinking they were exposed to, the ideas that they imbibed. Now, that generation of course is, I guess you could say sort of on its way out in some respects, but their legacy is immense. And it’s a legacy of skepticism, it’s a legacy of distrust of basic institutions of America, a rejection in many respects of the ideas and the figures and the history associated with the founding and the way that that all played out in the 19th century.

I would suggest is that if we’re going to identify the boomer generation as being part of the problem in the sense that the legacy that they have bequeathed to the United States is at best a mixed one, there were other things going on, which reflected older forms of what you might call skepticism about the American experiment and ordered liberty.

So when a country, especially many of its cultural elites or political elites, legal elites, economic elites, when they start questioning the very experiment in ordered liberty, that’s very dangerous for a country like America, because that’s what defines the country. That’s what makes America different from other countries where they have a history, a long history, they have symbols, they have events, they have even an ethnic dimension, linguistic dimension to their history. And America’s always been different. The historian Gordon Wood makes this point in one of his more recent books. He says, what defines America are these key ideas, these key principles to which lots of Americans continue to refer when they’re thinking about what should the direction of the country be? How do we deal with our problems? We go back to look at these founding documents and principles and ideas. So when all that gets canceled out in some respects or dismissed as the product of late 18th century, white male slave holders, we shouldn’t be surprised a deep doubt starts to enter the body politic and no country can endure that for too long.

Richard Reinsch (08:31):

A Republic that depends on voluntary associations, voluntary political institutions, people have to want to be a part of them, have to want to run for all office or have to want to serve in various boards or in anything about the vast network of voluntary civil society institutions in American life. All of those depend on people taking part in the American project as a whole, and the inability to transmit your legacy, your memories to the next generation is certainly as you’re saying a major problem. It seems also just thinking about moving, maybe moving over to the right from it, talking about the left, there’s two conservative authors, one from the boomer generation, Mary Eberstadt, but also Helen Andrews, who would be a millennial, both sort of saying, I mean, Mary Eberstadt, if I’ve read her correctly, she wrote a piece recently saying to millennials and gen-Zs, “We robbed you,” talking about the boomer generation, “In terms of the legacy we’ve left you.” Helen Andrews has said, “Basically, more or less, yeah. You did. What we were left with is sort of fool’s gold in terms of the America that we’ve inherited.” What do you make of those, those critiques, which are kind of similar?

Sam Gregg (09:48):

Well, I think they carry some weight, because let’s think about the boomer generation. So these are the people born after World War II, up until around about 1964. That’s the generational cohort that we’re really talking about. And they grew up in a period of immense American power, economic power, political power, military power, unparalleled, really unparalleled in many respects that put America as the number one country in the world that had slammed the national socialist and fascist colossuses. It had paid for effectively the allied victory in World War II. At the Second World War, the United States accounted to something like 50% of the world’s GDP. The United States essentially saved Western Europe from becoming engulfed by Soviet communism, established bastions of freedom around the world. And I mean, literally bastions. You had American military bases all around the world and America was seen as a citadel, not just of democracy, but also of liberty.

So the children, and remember the people who did that, these were the people who had gone through the depression, they had been gone to war, they’d sacrificed immensely. We all know the story and their children of born into this world of immense affluence of security, et cetera. And they reject it, they reject so much of it. And it’s partly, because they were reacting to things like, things they should have been reacting to like the ongoing presence of segregation in the south. They were disturbed and in retrospect, we can say rightly so by the prospect of endless war in Southeast Asia being carried out by the United States. So there were things to critique about the United States, but it’s also very clear that this is a generation that abide ideas and even models of thinking that reflected a lot of what’s often called the hermeneutics of suspicion.

So you look around the world and you think behind everything that seemed real and good, not everything is so good. And this is of course, when universities very quickly started the March towards the left. American universities had obviously been mostly progressive up to this point, but that goes in a very radical direction, the radicalization of so much of American higher education and culture. People like Michael Novak, the late Michael Novak used to talk about this, because he was one of them. He was one of the people that were part of this whole generation. And that I think to talk about the boomers in that way, Michael Novak himself wasn’t a boomer, but he was very good at discerning what was going on among that generation of people that he was very much part of.

I think there’s a fair amount that we can say yes, that the boomer generation with the skepticism, the hermeneutics of suspicion, and to a certain extent, the hostility that they brought to the public square about certain things that have been seen as always true, whether it’s, America’s understanding of itself, whether it’s things like the place of traditional religion, place of business, the type of economic life that existed in the United States, despite the New Deal, despite The Great Society and all these things. So I think there’s some truth to that, but I think we also need to think about some of the very grave errors, political errors that we were made in this same period, which I’m not sure you can put on the backs of the boomer generation.

So we see the Supreme Court, for example, in the 1950s, and this is not populated with boomers adopting a pretty progressive agenda quite deliberately. So you see that is happening. You see the Johnson administration embarking upon what was one of the biggest expansions of government into society and the economy in the 1960s. Again, the people who were in charge were not part of the boomer generation. These are sort of holdovers in the respects from the New Deal and that whole way of thinking about things. So on one level, I think the critique of the boomers is in many respects accurate, but I’m not sure it explains everything. Now, I don’t think that people like Helen Andrews or Mary Eberstadt are claiming that either, all I would suggest is that if we’re going to identify the boomer generation as being part of the problem in the sense that the legacy that they have bequeathed to the United States is at best a mixed one, there were other things going on, which reflected older forms of what you might call skepticism about the American experiment and ordered liberty.

Richard Reinsch (14:58):

Question that comes to mind and one responsibility. This is what democracies do, but it does seem in the last 10 years, maybe even beyond that, we’ve lost any sense of fiscal responsibility. And thinking about, obviously this is a very, in the headlines right now, in terms of the amount of money that we’re spending, it does seem there’s something in the American psyche right now of the belief that this won’t really hurt us, or that we can just continue to get away with this. Certainly, if you listen to Jay Powell, this is going on this sort of justification, legitimation of a lot of spending. And I just sort of throw that to you, is that also an indication of something profoundly wrong with this country?

Sam Gregg (15:43):

Well, it’s not the first time the United States has experienced-

Richard Reinsch (15:47):

Outside of a major war though. I mean, it is quite amazing.

Sam Gregg (15:51):

Yes. Now I think that’s true that what’s different now compared to say the levels of indebtedness that the United States incurred during the Second World War in particular, we are obviously going heavier and heavier into debt. And as last time I checked, we weren’t in involved in a major war against a major European power, and that hasn’t been the case for a while. So there to be a loss of sense, not just on the left, but among considerable portions of at least the political right, of a sense of fiscal responsibility. Now, so what’s driving this.

Well, one, I think is obviously the gap between income and expenditure. And it’s very important to understand that most expenditures, for example, in the federal budget are pretty much fixed. Most of it’s on what are basically, we would call welfare programs and that’s been the case for a while. So the degree of what’s called discretionary spending that Congress authorizes or it’s supposed to authorize every year has actually shrunk significantly in terms of their wiggle room. So one of the ways they deal with that is by going further and further into debt. Now America’s lucky in the sense that it’s the world’s reserve currency, that it’s in a position whereby it can print more dollars, but this catches up. And it’s clearly something that is driving a lot of irresponsible behavior on the part of a lot of the left and much of the right. So there’s a certain detachment from fiscal reality that’s going on. So you even see this, when you hear politicians talk about things like, “Well, we are going to reduce the rate of growth in federal spending.” So they’re not talking about reducing the actual real expenditure, they’re talking about reducing the rate of increases in expenditure. It’s really interesting to listen to that type of language, the notion that you might be actually reducing expenditures in real terms seems very foreign.

We spend as much and we borrow as much, but we never actually get back to paying for what we need to pay for. So that does seem to me, interestingly enough, to be somewhat of a departure from the emphasis upon fiscal responsibility, and a certain degree of frugality, that was certainly present in the rhetoric of the founding, even if it wasn’t necessarily lived out in practice.

But I think it’s also because a lot of Americans they’ll say things like, “Well, I believe in limited government, but I also want a welfare state. I think we should be doing X, but I also think we should be doing Y.” So the notion of fiscal responsibility, imposing choices that when you choose X, you therefore do not choose Y, that seems to have been dispensed with. And what’s interesting, I find about this is that in many respects, this is somewhat new in American political culture. If you go back to the 19th century or even a lot of the 20th century, especially the early part of the 20th century, American political culture was very hostile to the idea of the federal government spending lots of money and even very hostile to the notion of heavy levels of debt, very hostile to this. And presidential administrations would brag about how much they had reduced the debt by in the 19th century and even in the early parts of the 20th century. So I’m not sure what’s changed, but it’s clearly a problem.

Richard Reinsch (19:23):

It is interesting. Just speaking impressionistically, Americans are very comfortable with carrying huge levels of private debt in their own personal lives, in their consumer lives, and not balancing ends and means, and the money they make and the money they spend. And you just look at the credit card advertisements, they appeal to that. And I just, I’ve always kind of, I mean, I’ve started to think, well, there’s a line there between this personal behavior and the way you view the federal government and the way you view spending and the way you view things that you’re entitled to. What do you think of that?

Sam Gregg (19:56):

Well, I have to say that when I first came to live in the United States in 2001, I was shocked by the attitudes of a lot of Americans towards things like credit. I was shocked that Americans so quickly resorted to credit to basically, overcome the problem of distance in time between my means and what I can buy now, as opposed to waiting to buy something in the future when I have a bigger income and I can probably afford it.

So credit is one of the magical things of any economy, which allows us to basically pay for things now and build businesses now and do good things now, and then pay back with interest, the capital that we borrowed to do those good things now. I mean, credit is a very important, very useful, very productive financial instrument, not just on a private level, but also in many cases, especially in times of crisis, this is what governments do. And so, a very important role that credit and sensible credit policies play in the role of people’s personal lives and at the level of government. But it does seem to me that the sense of restraint that at some point you borrow now, but you know you’re going to pay it back in the future and you undertake the responsibility to do so, and you use credit for things that are really important rather than things that just satisfy immediate desires and wants.

Richard Reinsch (21:39):

That’s sort of like, Chris DeMuth has made this argument, the federal government increases its debt every year, but it doesn’t really do it for things that might, we might think of as investments or things that actually build the strength of the country, various things of federal government might spend money for. But we’re a debtor nation to fund consumption in the form of entitlements.

Sam Gregg (22:05):

We’re also a destination at the moment to fund social security programs, because the social security programs, as we all know, we’re all told every time we get these social security statements, that the fund will be exhausted by such and such a date. That date doesn’t seem to be going away, doesn’t seem to be extending into the future very much.

And if you look again, if you look at American history, there have been times when the federal government has embarked upon extensive borrowing in order to fund very important things like winning the Second World War or paying for parts of the rebuilding of Europe after the Second World War, or even further back buying Louisiana, that was a very worthwhile set of borrowings that the federal government undertook under President Jefferson to expand the United States, that was all really very important stuff. Now we are borrowing to basically pay for existing programs. And it seems to me that that is problematic on so many levels, because governments really shouldn’t be doing that. You would think that they would stay within the limits imposed by revenue.

And this is, I mean, it also points to this dysfunctionality in the politics of some of these things, because Americans generally are quite hostile to high levels of taxation, it’s a longstanding tradition in United States. And even a lot of people on the left are somewhat perturbed by high levels of taxation, but they also want the federal government to be spending on any number of programs, not just welfare programs, but also things like subsidies, subsidies to entire sectors of the economy. So it’s not just the left who are guilty of this, there are sections of the right are also guilty of this.

We spend as much and we borrow as much, but we never actually get back to paying for what we need to pay for. So that does seem to me, interestingly enough, to be somewhat of a departure from the emphasis upon fiscal responsibility, and a certain degree of frugality, that was certainly present in the rhetoric of the founding, even if it wasn’t necessarily lived out in practice by say, people like Jefferson himself, but even through the 19th century, in parts of the 20th century, the emphasis upon the federal government, staying within budgets, only spending what they can, that has gone. If you go back in the debate that they were having in the 19th century, presidential candidates would be bragging about how much money they’d saved, if they’d been in public office.

Richard Reinsch (24:58):

And better than Calvin Coolidge.

Sam Gregg (25:01):

Yeah, agreed, this is just Calvin Coolidge. If you go back to the 19th century, one of the reasons why after the Civil War, the American military was shrunk so quickly was because American legislators were so anxious to reduce public spending as much and as quickly as possible and to reduce debt as much as possible, that is a very different political world from the one we’re in now.

Richard Reinsch (25:26):

Yeah. This is something that, struggle to formulate it, but John Courtney Murray in We Hold These Truths, makes an argument that if a people start to disagree about the ends of their political association, they should actually, they should agree on the end, they should have a consensus about the ends and extent they have public debates over things. It’s really about the means. And it seems in my mind that we are at odds at the level of ends, do we want to be a constitutional people with what that implies in terms of accepting, fixed limits on government power, accepting that those who are in the government are actually accountable to people and we want to strive to work that way as a people?

We want to have a rich, simple society. That’s actually the purpose of government. We want to have a lot of market activity. I mean, am I being too critical or negative to think, I’m not sure everyone’s onboard with that anymore. And we’re actually at odds over those ends. And that of course, makes a lot of other things really difficult to have a conversation about, because we’re not even really locked into a consensus framework to begin with.

Sam Gregg (26:35):

Well, I think that’s right. If you go back to the founding and you had disagreements between the Jeffersonians and the Hamiltonians, they had different visions of foreign policy, they had different visions of what they thought economic life would be like. They even had somewhat different visions of the relationship between the federal government and the states. They had different visions of what they thought, the role of what we would call monetary policy should be et cetera.

But no one was really disputing that the end was life, liberty, and the pursuit of happiness. And very few people were disputing the idea that by life, liberty and the pursuit of happiness, that there was a lot of normative context, which gave form to what that content of that life was, the way that liberty was lived, and the substance of what happiness consisted of. And that broad consensus was informed by a variety of sources ranging from let’s call it a type of Protestant, Judeo-Christian conception of the world, what you might call also the moderate enlightenment associated with Scottish enlightenment in particular, French enlightenment thinkers, and a certain commitment to much of the heritage of limited government and constitutionalism, and even I would argue, natural law and natural rights discourse as developed in 18th century Britain and Scotland. And that persisted, I think, for quite a long time.

And even up until I would say maybe the 1980s, you would still find a fair amount agreement about what the ends were, even though you have two very different political parties articulating often quite different visions of what that should be like. So if you look at a president like Jimmy Carter or a president like Lyndon Johnson, not clear to me that they were aiming for anything else beyond this broad life, liberty and the pursuit of happiness, that just agreed with Republicans and people on the right about how to get there. So there wasn’t really an argument about at least a deep substantive argument about the ends in the way that you clearly have today, because there are many people I think in among many educated Americans who have essentially rejected the founding, rejected the experiment and ordered liberty, and they’re reflecting ideas that are coming out of many of the universities now.

I think of someone like John Rawls, for example, it’s very clear that his vision of the United States is one of more or less Western European egalitarian social democracy. Now there’s a big gap between that on the one hand and the type of life, liberty and the pursuit of happiness and all the emphasis, as you said, being a constitutional people and what that means. There’s a big gap between all that and what you hear coming out of what you might describe as modern liberalism. And even modern liberalism looks moderate now, compared to some of the ideas that are being articulated about what America should be, that are coming from much of the left these days, but also on the right, because we have people on the right today who explicitly reject the American founding, who say that it was flawed from the very beginning. And so, I’m not sure they have a very different vision of, to the left in many respects of what they want. But I do know that what they want is inconsistent with the type of constitutional Republic and the normative foundations underlying that Republic that I think formed a reasonable consensus among a critical mass of the American population.

Richard Reinsch (30:48):

Yeah. Okay. They’re going to call us “the grumps,” Sam. Maybe we should change focus. Let me ask you this question. What do you think is right about America right now?

Sam Gregg (30:58):

Well, I think there are many things that are right about America. America remains, for example, for many people, the most desired country that they would want to move to, if they ever felt that they needed to do that. I’ll never forget. I think it was Tony Blair. So this is in the middle of the 2000, when many people around the world are becoming disillusioned with the United States, primarily because of the war in Iraq and all the things that were entailed with that. And Tony Blair said something like, “Lots of people are very critical of America, but it’s still the place that people want to migrate to. People don’t want to migrate to China.”

Richard Reinsch (31:40):

Julius Krein does.

Sam Gregg (31:42):

When people want to migrate to a place like Western Europe, why do they want to migrate there? Because they’re interested in getting access to very generous welfare states. They not going to Europe, because they want the opportunity to flourish economically under their own volition. Many of them are going there because there’s generous welfare programs. So the fact that I think America is a place that people want to move to, because they believe it is a place of opportunity, a place where they can exercise their freedoms and they can realize a degree of personal responsibility for themselves and their families, that’s something that’s really powerful about America, that doesn’t seem to be diminished.

Another thing I find optimistic about, to be reason to be optimistic about America, is it still remains despite the fact that we have the legacies of the New Deal and The Great Society and things like Obamacare and all these regulations and government programs, America still remains by most indices of maybe even all indices of economic freedom, the number one country in the world for entrepreneurship, that’s telling you something. That’s a very powerful thing.

The third thing, which I think is a very good reason to be optimistic about America, is that Americans, a critical mass of Americans still are very uncomfortable with the idea of arbitrary power. They don’t like the government telling them what to do. They don’t like the idea of politicians behaving badly. Now lots of politicians on both sides do behave badly, but at least in America, there’s still a critical mass of people who are disturbed when they see this type of thing happening. Whereas in many European countries, I think there’s a certain degree of cynicism about all this. It’s just part of the way things are. I think Americans still not all, but still Americans are still somewhat perturbed by that.

It’s a sign of hope, it’s a sign of freedom, it’s a sign that things can be done in a country that takes constitutional liberty seriously. But what you also said about rule of law is extremely important, because one of the reasons there are good numbers of people coming to the United States is because they’re trying to get away from situations where they have constitutional anarchy, where they have rule of men, rather than rule of law.

The fourth thing I would say America has going for it is I do think that the particular constellation of ideas of principles and institutions that came into critical formation in the 1780s is still a major reference point for Americans as we talked about before, but it has immense potential for America to renew itself, because whenever we go off-track, we can look back. We have this set of principles and ideas we can look back to and say, “Okay, we are departing from what we’re supposed to be. We need to correct that.”

And many of the best movements in America that I think have helped to shape the country in positive ways, generally speaking, that is where they’re getting their inspiration from. And lastly, I’ll say, I have a fair amount of faith in ordinary Americans. I have less faith in elites. I think in many respects, we have a problem of elites in America on many levels, but I’m astounded every day by just the common sense observations of ordinary American people who recognize silliness and nonsense when they see it and are willing to try and do something about it. And we see this today, for example, with the pushback against some of the things that are going on in schools. It’s as if a light has been turned on in many people’s minds, and they’re saying, “This is bad, this is wrong that our children are being taught these things,” but rather than just sort of accepting it and just saying, “Well, this is just the way things are,” what do Americans do? They go in and they vote out the school board and they put new crew of people into the same positions. I can assure you that in lots of other countries, most other countries that initiative coming from below is far less evident.

Richard Reinsch (35:35):

And it’s been interesting watching, and then the attempt to thwart this parental opposition, which has been very heavy-handed, which indicates to me a certain mindset of we really have to cram this down people’s throats. This really may not have a lot of belief and a lot of support amongst parents, if you keep in track of even the federal government getting involved. And I thought that’s been interesting. Something that also seems right with America is we talk a lot about immigration. Everybody talks a lot about immigration. It seems that apart from the federal government and what the federal government wants to do, particularly to the civil rights state to do to immigrants, that immigration is actually, when we look at what immigrants do, when they come here, it’s actually pretty good.

Sam Gregg (36:35):

It is in fact amazing.

Richard Reinsch (36:35):

It’s still a very positive story to tell. And that seems to be forgotten that we can talk, I mean, certain people will talk about, well, the rates of welfare dependence and expense and all that, but that’s a function of the federal government programs that have been put in place. That’s not necessarily the case that they are coming for that, I don’t think that’s true at all. And so, there’s still something very good there to be told, but you’ve also got to have a rule of law system in place and that to be widely perceived in order for immigration to work also.

Sam Gregg (37:05):

Yes. So if you look at the rate at which businesses are created in the United States, or if you look at who is creating new businesses in the United States, immigrants are disproportionately represented in the number of new entrepreneurs, the number of people that are creating new businesses. So they punch above their weight, way above their weight, when it comes to creating new businesses, generating wealth, providing jobs for other people. And many of people come here precisely because they have an opportunity to do that in a way that’s a lot less evident in Central America or Latin America or Africa, or in the case of Europe, it’s less about the chaos, it’s much more about the bureaucracy they’re trying to escape. That makes it much harder to start and create businesses.

So immigration, in that sense, provides a way for people who are optimistic in many respects, people who are looking for opportunity, who are not looking for a handout, they just want to be able to exercise the freedoms in a way that they can’t in their own country, that’s something that’s very, very unique in many respects and I think it helps the economy to keep ticking over, it means as if you like fresh ideas, fresh people coming into the country.

And remember, if America wants to continue to grow, it’s going to need immigrants unless Americans start having more children again. So demographically, we are very dependent on that. And the other thing is that we often think of many immigrants as refusing to assimilate, of not wanted to be part of the American body politic. Most immigrants do want to be part of the body politic, they do want to become citizens, they do want to get involved, they do want to become American, they do want this. And that’s a very powerful thing in the sense that it tells you that the idea of America is still extremely attractive to people all over the world.

It’s a sign of hope, it’s a sign of freedom, it’s a sign that things can be done in a country that takes constitutional liberty seriously. But what you also said about rule of law is extremely important, because one of the reasons there are good numbers of people coming to the United States is because they’re trying to get away from situations where they have constitutional anarchy, where they have rule of men, rather than rule of law. And I do worry, I do worry to a certain extent about how strong rule of law is in certain parts of the United States. I do worry about that, because I do know, I think we all know that a society that abandons a commitment to rule of law is a society that’s inevitably at some level, going to undergo some degree of deep degeneration.

Sam Gregg (40:02):

And remember that that’s why a lot of immigrants come trying to escape chaos in their own countries where you can’t rely upon the court system, you can’t rely upon judges doing what they’re supposed to do, you can’t upon the different branches of government, doing things in particular ways, rather than other ways. They’re coming here to escape all those sorts of things and that’s precisely why immigration needs to be structured under a rule of law framework, because we have in some respects, the worst possible immigration system you can have, because it’s very easy to migrate here illegally, but it’s very hard to migrate here legally, believe me, I know, I migrated here legally. It’s really complicated. It’s very hard. Whereas if you just swim across the Rio Grande, it’s easy to get in, at least now it is.

Sam Gregg (40:57):

So if you’re going to have immigration and I think America generally benefits from immigration at some level, all of us are associated with the immigration experiment. It has to be built within a strong structure of rule of law. And that I think is absolutely key, if you want to keep immigration as something that’s a positive force in American society rather than what it is today, which is a source of division.

Richard Reinsch (41:24):

No, that’s exactly right. And also gets turned into a way to drive Americans farther apart from one another. Sam, maybe we should end there. We’ve covered a lot of ground here. Thank you for joining us and sharing your immense knowledge on this general question that a lot of people are thinking about. And I think you’ve broken it out in several parts to help us understand it better. I appreciate it so much, Sam Gregg, thank you.

Sam Gregg (41:47):

Thanks Richard. And thanks to all the crew at Law & Liberty and Liberty Fund for having me on.

Industrial Policy Dreams Perpetually Deferred Dec 01, 2021

Richard Reinsch: Welcome to Liberty Law Talk. Today we’re with Scott Lincicome senior fellow in economic studies at the Cato Institute about industrial policy, its prospects, what it means, and what its consequences would be if we had something like that fully implemented. Scott, as I mentioned is at the Cato Institute in economic studies, he writes on international and domestic economic issues, including trade subsidies, industrial policy, global supply chains, all the things that are in the news, we’re discussing. Scott, glad to have you on the program.

Scott Lincicome: Thanks for having me. Good to be here.

Richard Reinsch: Thinking about industrial policy and I’ve read a lot of your work on it. What is industrial policy?

Scott Lincicome: Great question, because it’s funny to start there, but it’s really necessary because so often you hear, especially from industrial policy advocates it is anything and everything. It is what gave us the iPhone and COVID vaccines and everything in between, you name it. If it is a technological marble of any sort, you will hear that it was a result of industrial policy. The reality is as you and surprisingly, listeners might find out is far different. And that’s because if you look back at the history of industrial policy and we have a lot of it, in not just the United States, but around the world.

If you go back to the Hamiltonian report on manufacturers, surely there was some industrial policy baked into that. The question is whether that actually first of all, was fully implemented. The history shows that it really wasn’t. But second, is, was that really effective? Did it actually achieve outcomes that were better than what the market would’ve done and that’s where I think, especially in that Hamiltonian high tariff, industrial intervention era of the 19th century, you really see that at least the scholarship on the issue says that, you know what, it really didn’t work as well as people will claim.

Experts tend to coalesce around a few really essential defining characteristics of what is industrial policy. First, you need a national strategy or a plan of some sort. This isn’t just government funding for basic research, for example, where, you give a bunch of smart people grants to do some research, and they might stumble upon some amazing thing while they’re doing their work at some university. You need a national strategy and a plan to achieve some sort of objective. The next thing is you need to then pursue into that strategy.

You’re going to have a targeted microeconomic meaning company, industry, firm, specific stuff. Microeconomic policies, things like tariffs or subsidies or localization mandates or the rest. And those policies are going to be intended to achieve specific market beating commercial outcomes. Making that really simple, this isn’t like building a fighter jet, and it’s not just simply to try to achieve some objective that the market could achieve. It’s essentially saying, look, no, the market has failed, and in order to achieve our national strategy, we have to intervene in the market. We have to beat the market.

Because there is apparently this market failure. And then the last part is there has to be an element of nationalism in all of this. This is not just simply establishing a prize and saying anybody who can deliver an amazing technology to us gets the prize. We don’t care where you’re from. We don’t care how you do it. This is far different. This is really the government saying, we want this on national soil. We want it to use American workers, American manufacturing. That’s the only way you can qualify for any of these goodies that we just talked about.

Richard Reinsch: As I think about things that I hear when I’m out there regarding industrial policy something that frequently gets trotted out and seems to be received with nods by a lot of people in the room. What is said is the internet is the outcome of industrial policy. COVID vaccine strategy, Operation Warp Speed proves industrial policy. Is there ever a need for industrial policy? And is there ever an argument for it? And I think, so another thing you hear is Alexander Hamilton in the famous report are manufacturers. America itself from our founding, some would say is rooted in industrial policy, is comfortable with it.

Scott Lincicome: Yeah. And I think that, look, if you go back to Hamiltonian report on manufacturers, surely there was some industrial policy baked into that. The question is whether that actually first of all, was fully implemented. The history shows that it really wasn’t. But second, is, was that really effective? Did it actually achieve outcomes that were better than what the market would’ve done and that’s where I think, especially in that Hamiltonian high tariff, industrial intervention era of the 19th century, you really see that at least the scholarship on the issue says that, you know what, it really didn’t work as well as people will claim.

That in fact, it was things like rapid demographic expansion and a lot of other factors that drove America’s rise in the late 19th century. It wasn’t really about industrial policy or trade protectionism. Now, the internet one is a great example of what I was just talking about. If you actually look in the history of the United States government’s involvement in the internet, what you see is that very little of those necessary conditions I just said really apply because certainly there was government involvement.

You look back at the creation of certain parts of the network and what became potentially modern email and all these things, but you see that a lot of these things were discovered by happenstance. You had a government contractor working on a different project and needed to develop a certain amount of technology or needed a messaging system through the department of defense, they needed to contact each other. The government wasn’t saying, “We want the internet.” They just, again, these researchers are very smart people on a contract and they stumbled upon it.

That’s not industrial strategy. That’s simply, there’s just a government touching the thing. You see that a lot in what we hear are industrial policy victories are oftentimes things that, again, people just stumbled upon and the COVID vaccines, I think are another really great example of where industrial policy gets credited for things that really weren’t a lot of industrial policy. Starting with mRNA research. Well, that was first of all, a basic research grant. The researchers were not trying to achieve some amazing market beating vaccine.

But beyond that, you actually see that there’s been some great work looking back at the scientist Katalin Kariko, Drew Weissman who actually weren’t primarily being funded for mRNA research. In fact, his grant was on a totally different subject and they really came into their own when they left the government research apparatus and moved to Moderna and BioNTech the German company that brought it forth. And then with respect to the COVID vaccines themselves, one of the great things about the vaccines is that they really show us what a private market alternative would be.

And that’s very rare, because when the government gets involved in something, it’s going to tend to crowd out alternatives and then aha if there’s a success, then that was clearly an industrial policy success. But here, we actually had a really excellent contrast because the Pfizer-BioNTech vaccine was almost entirely a private endeavor. The only thing the US government did, well, two things. First, is they eased regulatory constraints.

Richard Reinsch: That was nice of them.

Scott Lincicome: Exactly. Allowing vaccine production to go in tandem with testing and all that stuff. Typically, they do those things sequentially. They were allowed to do this all at once, and then the other thing is they said, “We’ll pay you for finished doses.” Now, this is essentially a prize format. If you look into the contract of the Pfizer vaccine with the United States government, there’s an entire section that says that the United States government will have no control over the supply chain. Will have no control over the manufacturing process.

We will essentially just bring you on a vaccine and if it gets by the FDA, then you’re going to pay us. That is, again, there’s very little micromanagement and in fact, Pfizer used its own resources, its own manufacturing plant, BioNTech used its own research as well. The government only came in really at the end of the process. People talk about BioNTech got money from the German government, but again, that was after the vaccine had been created.

And if Pfizer’s executives before Operation Warp Speed ever even existed were predicting, so in say April of 2020, they were predicting have finished doses by December like they did. And so, you contrast that with a much more government centric approach. And here, in fact, we just had headlines today about Emergent BioSolutions. Emergent BioSolutions has been involved with the US government for about a decade or so. They were a plant in Maryland that was specifically funded by the US government to produce vaccines in time of a pandemic, produce medication.

Well, Emergent has produced almost none, almost no… At least in no significant commercial quantities vaccines and the government just canceled their contract because they’ve been having tons of problems in the manufacturing facilities in Maryland and J&J was contract the government arranged for Johnson & Johnson to work with Emergent and early on in the pandemic, you heard from a lot of industrial policy advocates that Emergent, that was it.

Clearly, this is going to be the success. And now of course they’re quietly… All of those comments have quietly disappeared. And when you actually look into the history of Emergent, you see that it’s connections with the government, it’s federal contracting and the rest were a problem that they spent a lot of money on lobbying. They spent a lot of money on winning government contracts, but they weren’t so great when it came to actually producing results. And again, in the vaccines, we see that.

You have a much more market-oriented vaccine in the Pfizer-BioNTech vaccine, and then you have a much more government-oriented approach in the J&J Emergent. And I think that that provides us really with this incredible contrast that we don’t normally have. And so, I think that’s the type of counter factual we really need to apply to industrial policy supposed successes. Because look, the government’s not going to go all for infinity. There’s going to be some successes in there.

And the question though, is were those successes really something that beat the market, that the market could not achieve in the absence of government intervention? [And again, I think the vaccines give us a really excellent teachable moment in that regard.

Richard Reinsch: Yeah. And on that point, thinking about the internet, it is the case that government researchers and DARPA stumble onto the technology, create a form of it. But it’s corporations in a market that develop a technology and make it a commercial product that changed the way we all live, basically.

Scott Lincicome: Exactly. And that goes for the iPhone too. There’s certainly parts of the iPhone. If you hang out on the internet enough and you are into industrial policy-

Richard Reinsch: And I do.

Scott Lincicome: …you’re going to run into this meme or picture or whatever that essentially says everything in the iPhone is coming from the government. The government invented the iPhone, right?

Richard Reinsch: Yeah.

Scott Lincicome: When you dig into that, unfortunately, some researchers have, I wrote about it in my paper, what you see is that certainly, there were some government… A couple guys on a government grant who developed the, I think it was the LCD screen, but they weren’t even trying to develop that technology. They were working on a totally different project, but they needed this tech for what they were doing.

But more than that, you look at Taiwan’s economic makeup overall and you see that they are heavily, heavily leveraged in one industry, semiconductors. That’s great when you’re talking about semiconductors, but when you’re talking about biotech and let’s use pharmaceuticals, for example, not so much, they’re laggards. And so, even where you admit there are successes, do you want the government to have that much… Do you want to have an economy that is that unbalanced, that the chances of having bigger problems for not having a more diverse economy are really rather substantial?

They stumbled upon it. But the bigger deal is that it took private, took apple and Steve jobs to package all of these different technologies into the iPhone and to develop a manufacturing strategy that involved a lot of globalization and offshoring and all of those nasty things that industrial policy folks, don’t like to achieve a product that would be a success in the commercial market and thus, get consumers to buy it. And that led to all the wonderful upgrades and adaptations and really, the amazing technology that well, I have in my hand right now.

And it’s that type of direction or whatever that is really rare in the industrial policy successes, you hear so much about. It’s much more, there are a few things that people stumble upon but then it’s the private actors that create the modern technological miracles.

Richard Reinsch: There’s two directions I want to go in. I want to talk about, because I think that brings up just the idea of the knowledge problem, inherent and industrial policy planning, and also I want to talk about other nations in particular Asian nations that we frequently hear about our successes in this regard, but one, just thinking about Steve Jobs’ example and bringing together all these technologies.

That’s about specialized knowledge that he in some great way was able to combine along with the people around him and all of the record they had in their industry of thinking about what could actually work and what could we actually build upon and creating this new product. And that gets the famous essay by Friedrich Hayek it was 1948, The Problem of Knowledge and what would a government bureaucrat have to know? When would they have to know it? How would they apply it? What incentive would they have to get it right?

And of course, and you’ve been saying this versus, and then compared to what? And is really the thing that they’re trying to do to achieve a political objective on behalf of an ideology or on behalf of a turf battle inside their agency or on behalf of Congress, congressional representative supporting them. All of those things factor in and it just seems like the comparisons ultimately [00:15:00] mean that a government official getting it right is really spectacular.

Scott Lincicome: Yeah. And like you were saying, having the specialized knowledge needed to achieve these things is something that requires not only a ton of input from all sorts of different actors. It also requires a willingness and ability to change course quite quickly to admit failure and to then adapt accordingly. Steve Jobs has had some failures too. It wasn’t just all iPhones, iPads and the rest.

Richard Reinsch: Yeah. Well, he was fired at one time. Right? And he came back.

Scott Lincicome: Right. And so, it’s the willingness to fail that is I think quite often missing from, and again, that’s part of the knowledge process and something that government actors are rarely willing to do. It took Emergent BioSolutions, going back to that company, it took years of failure before the government finally pulled the plug. And thank goodness we had alternative vaccines, because just imagine, if our entire vaccine production was on that model and reliant on the millions of doses that have never left that factory. Think of the damage that that could cause.

And so, that gets, I think to another big problem with industrial policy, which is the political influence. That even things that might seem good on paper, even things that might say, “Well, no. We’re going to actually use market input. We’re going to rely on the private sector and all of that.” Very, very often politics intervenes and you have all the public choice issues that arise from that. And that something that looks good on paper after it gets through the sausage baking in Washington, doesn’t look so good when it comes out the other side.

And then when it actually fails, it still continues for years and years because it’s hard to turn off the spigot once the technology pork barrel as we call it gets rolling.

Richard Reinsch: Yeah. I want to ask you about some Asian supposed successes in industrial policy. You and I, it’s funny, in my research in industrial policy, I stumbled across the amazing statement you found as well, and that’s from the once wanted Japanese ministry of trade, MIDI. And they said, “We thought industrial policy was the source of our success instead we found it was the source of our failure.” Something like that. It’s incredible statement from this once incredible government agency in the Japanese government. Are there successes in say South Korea, Taiwan?

Recently, I was at a political economy conference debating this issue and others with people on the right like Warren Cass and he was on a panel and forthrightly said, “The Taiwanese semiconductor industry proves what can happen.”

Scott Lincicome: Yeah.

Richard Reinsch: And the thing is, well, there has been a great success with semiconductors in Taiwan. We don’t know what would’ve happened without the government getting involved, but to your mind, is the Taiwan Semiconductor success story an industrial policy success story or is it more complicated?

Scott Lincicome: Well, yeah. I think it’s certainly more complicated and it’s more complicated in a couple ways. And first is that there’s a lot of myopia from the industrial policy advocates. They see government action, they see a tangible successful outcome and they think aha, that proves we should duplicate that. And it will certainly work as well as it did in that example. Now, the first issue with that though is and this is something you’ve written about as well, is that when you actually dig into what Taiwan did well, their initial innovations were very much Western technology and Western.

This was not the government fomenting actual innovation, it was essentially borrowing that tech. You start from that. Now governments have lots of money and they can throw around that money. And certainly, in Taiwan, government subsidies helped boost the industry, but also there was a lot of private action in that. TSMC, the large Taiwan Semiconductor Company is a very well managed private company and government involvement in TSMC is relatively minimal these days.

But more than that, you look at Taiwan’s economic makeup overall and you see that they are heavily, heavily leveraged in one industry, semiconductors. That’s great when you’re talking about semiconductors, but when you’re talking about biotech and let’s use pharmaceuticals, for example, not so much, they’re laggards. And so, even where you admit there are successes, do you want the government to have that much… Do you want to have an economy that is that unbalanced, that the chances of having bigger problems for not having a more diverse economy are really rather substantial?

Richard Reinsch: Yeah.

Scott Lincicome: And then the last part, as you know is the counterfactual. If you look at some of the research, Arvind Panagariya, for example, has done some great work on this. He’s at NYU. And you see that actually Taiwan grew more slowly in its peak industrial policy period than it did outside of those periods. And when you look at other industries outside of Taiwan, so look at South Korea, for example, or Japan, like you mentioned, you actually see that a lot of these companies and these industries ended up being less productive and these big hulking conglomerates that weren’t very innovative or had all sorts of other problems.

You certainly say there’s not a world where there aren’t going to be occasional wins, but you have to ask at what cost in terms of the economic makeup of country, in terms of the counterfactuals and the other unintended consequences.

Richard Reinsch: I’ve thought, just well you might succeed in the short term.

Scott Lincicome: Yeah.

Richard Reinsch: Maybe the medium term. One question I’ve thought about in Taiwanese semiconductor success would be, there was government, I think it was a Western executive, maybe it was a Taiwan expatriate, I forget brings this technology and this idea to Taiwan and gets some initial funding through a research institute. And that becomes the basis of the company. But then the company within a couple of years is heavily private. And so, again, like the internet, but what really made it successful was it was private investment. There’s this initial public seed money, but that, to me, isn’t really industrial policy. I don’t think.

That’s just, we want the government to do some initial basic investing. And that then creates a lot of momentum for the government doing a lot of things in that regard. But I thought too, what if someone comes up with a better way to design semiconductors and a better way to manufacture them, and you’ve invested in this way and now what? How are you going to retool? That’s also there.

Scott Lincicome: First point on the infant industry subsidization and government seed money. This gets to something I wrote about in my paper and have written elsewhere as well, that looking at small developing countries and saying, “Aha, America can and should copy that.” It’s very problematic. The US capital markets are the thickest and most active on the planet. And the idea that we need government seed money for industrial and commercial applications is pretty far-fetched. We are not 1970s Taiwan. And that leaves even aside the political differences and political systems and the rest.

Just the same economic arguments that might support some sort of infant industry involvement by the government in a developing economy just really don’t fly in the United States.

Richard Reinsch: Yeah. Thinking about, I think the elephant in the room here which seems to give this life is China.

Scott Lincicome: Yeah.

Richard Reinsch: And thinking about this new missile, hypersonic missile China launched. That made me do a double dig. Not that I think we’re going to go to war with China, but that they seem to be progressing. My impression is they seem to be outdoing us in certain forms of say super computer technology. Obviously, I think this missile they’ve launched is beyond our capability and that all brings to mind this idea again, of maybe the government should be actively engaging in technological discovery and innovation, and then allowing companies then to do something with it. Is that China? Is that what’s going on?

Are they a massive success in industrial policy and the interaction between the Chinese state? And I don’t know. I have a hard time thinking of companies being private in China. I know that’s not true. Even the private companies, I think have Chinese government members on their boards. The government is involved in something in every way, but is China this living rebuke and that’s something the economic nationalists point to as well as you know, is maybe we should be more like China.

Scott Lincicome: Right. Yeah, there’s a host of problems with that. The first and most basic is, can we be like China? Let’s assume everything is amazing there, that they are dominating in all these technologies. Just, we’ll assume that for the moment, the idea that the US economic and political system would be able to implement China style industrial policies, pretty farfetched. Not only does it require tolerating a lot of cost and a lot of failure and a lot of distortion.

But also just simply in sheer terms of how our economic systems are set up, the idea that the United States could somehow be directing bank funding and doing all this type of other stuff with state-owned enterprises is pretty loopy. Barry Naughton, the China expert wrote this great book on Chinese industrial policy and basically said as much. He said the stuff that China can do economically is not really something that Western more market oriented economies can do. That’s the first, I think big problem.

The second big problem though, is that when you actually dig into Chinese industrial policy, you see that there are a lot of failures, and certainly there are some successes. They seem to be progressing in AI. You mentioned the hypersonic missile thing. But there are a lot of failures too. For example, China’s been trying for decades to be a champion in semiconductors, and they’re still a decade behind TSMC and Intel and Samsung. Most experts say they might never reach the technological frontier in semiconductors without a massive influx particularly on the human capital side.

They need a lot of smart people, but there’s also other hurdles there in terms of materials and equipment and the rest. And so, that’s, I think a huge rebuke because that is one area that the Chinese government has been laser focused for 30 years and they have still not much luck. Automotive, cars is another one. Everybody likes to talk about electric vehicles. Well, China has also been trying to establish a combustion engine industry for decades. They have not done very well there.

I think the biggest success is the Chinese acquisition of Volvo, which again, that’s just simply borrowing others’ technology. And there’s several other examples out there of where, even things that look like successes. You say electric vehicles or ship building or the rest have been just immensely costly. We’re talking tens of billions of dollars wasted in bankrupt companies and leveraged loans and the rest. And those are, again, the types of things that well, is that actually good for the Chinese economy, has that actually put them in a stronger position in the long term?

And I think the answer there is no. And that gets to the third point, is that regardless of what you think about China’s industrial policy, the fact is that China’s economy and future, they have a lot of significant issues. And it’s funny if I had said this a year ago, people might have laughed at me, but now I think we, in the last year between the crackdowns on private enterprise and entrepreneurship between the Evergrande issue between a lot of folks starting to see China’s debt and demographic problems, China, they are going to get old very soon.

They are very top heavy when it comes to the organization of the populous. A lot of old people, not a lot of young people, not a lot of people having babies. Well, that’s a recipe for pretty substantial problems, not just in terms of innovative and productivity, but also things just simply like having a safety net that can function. And then you also look at how the productivity is going there. And a lot of that goes back to… China has significant productivity problems. They are not anywhere near the frontier in most areas. And a lot of that goes back again to their industrial policies.

These are state owned enterprises in China are increasingly ascendant. They were receding during the ’90s and early 2000s, but that has changed back. And so, you have a country that, it’s this big hulking ship out there, but then when you look a little closer, you see that it’s old and got some cracks in it. And now, that doesn’t mean that China’s economy’s going to implode. I’m not one of those folks that thinks that China’s on the verge of collapse, but I do think that they have a lot of headwinds and it’s those headwinds that should give us pause.

Do we really want first of all, to change the United States economic system because there is this immediate threat of China being a global economic hegemon? That doesn’t seem quite right, but beyond that is, do we want to have all the similar distortions and problems that that type of planning appears to have caused?

Richard Reinsch: It seems to be clearly in the last 10 years, something has changed in China regarding the government, which has never been limited by the rule of law, but a much more aggressive, powerful state intervening and killing their golden egg there or-

Scott Lincicome: Yeah.

Richard Reinsch: …breaking it, which had really launched China economically. Something you also hear a lot about is we invented, our American companies invented software technology and made great gains with it. But the loss has been, they’ve offshored it to China.

Scott Lincicome: Right.

Richard Reinsch: Or to other countries. And another argument that you then hear is, and of course you and I have a story to tell about that. That makes sense, a logical economic story, but then they say, “But software manufacturing…” Something in the software manufacturing produces ideas for further innovation. And because we don’t do that software manufacturing, we’re missing out on software innovation, what do you make of that argument?

Scott Lincicome: Well, it’s a weird argument, I think, because do we want to be truly innovative? Do we want to be the guys who invent the software or do we want to be the guys that just copy it? I’d rather have American companies focused on what’s going to be the next big thing, not focused on simply trying to crank out a bunch of the last big things. And you see this time and time again. If you look at the data on, say US R&D spending, if you look at the data on venture capital, things are still really active in the United States. And in fact, by some measures at all-time highs.

We just hit 3% of GDP for research and development spending for the first time ever I think in 2019, which is the last year available and venture capital funding and all these other things have just gone crazy both before and now after the pandemic. And I want folks focused again on the cutting edge and innovative stuff. That’s the stuff that really will define the next 50 years, not the last 50 years. And that’s where we still seem to be headed. Now, look, are there some headwinds and some problems here too? Yeah, sure. But I’d much rather be quite frankly in the United States’ position than China’s in that regard.

Richard Reinsch: Yeah. The headwinds you mentioned for China, we have some of those.

Scott Lincicome: Yeah.

Richard Reinsch: We have demographic problems. We have tremendous debt problems, which we don’t want to actually fix, among other things. All this debate started five or six years ago, industrial policy in America around this constant drip of an argument of manufacturing jobs. And with the loss of manufacturing jobs has hollowed out the middle class. It’s hurt men in particular, it’s been responsible for drug overdose deaths. It’s been responsible for single families and maybe perhaps the decline in our own birth rate. There’s all sorts of things that gets tied to industrial policy to bring back manufacturing jobs.

There are cities all over the country that were hit hard by the shift in the 1990s and 2000s. Whether it’s trade with China or automation or just changing industries, moving away from coal or whatever. But we hear a lot about these old industrial cities, what we don’t hear about is that the vast majority of them did adapt.

That’s an argument you hear from people I think are smart on a lot of other issues. What would that take? What would it look like? Do you think it’s even possible? I think manufacturing jobs are like 7% of the economy. And I don’t know what number would be good if according to the economic populists, they never say, but what would actually happen if you try to reshore manufacturing jobs?

Scott Lincicome: Right. Well, the problem that industrial policy folks have is just a huge contradiction in objectives. On the one hand, they want to have the most innovative and productive companies and manufacturers in advance manufacturing. On the other hand, they want to have a lot of jobs. Well, the problem is that the advanced manufacturing, first of all, the jobs that are there are going to be pretty high skill. They’re going to require if not advanced degrees, at least some, well beyond a high school education, what we call now, gray collar jobs.

Yes, you’re working in manufacturing, but also you know how to operate robots, you know how to program some basic programming, that kind of stuff. That’s your first problem. These are not going to be the classic guy working in a steel mill type job, but the bigger problem in advanced manufacturing, there just aren’t a lot of jobs there. And the fact is because they are very capital intensive, they’re going to use again, robots, computers and the rest, and that’s the real story of American manufacturing employment over the really long term.

But the bigger problem is that over the long term, going back to say, the 1940s, US manufacturing jobs as a share of employment are just steadily going down, they’re going down at essentially the same clip, and that’s a story of productivity games. There just aren’t a lot of jobs in the advanced, innovative industries that industrial policy folks want. By contrast where the jobs are, are going to be in labor intensive, low wage areas. We have some of those jobs, food manufacturing, for example. We have a very large food manufacturing sector. Most of the food we consume is domestic.

Those jobs don’t pay well. You’re lucky if you’re looking at 15 bucks an hour, but they’re the types of jobs that you would need if you’re trying to restore these classic men with a high school degree and nothing more in these small communities and having breadwinner families and all that jazz you hear so much about from industrial policy advocates. Well, yeah. I think theoretically we could reshore these jobs in textiles and the rest, but if we do so they’re going to be tremendously unproductive and thus pretty low paying. And that’s quite frankly, not going to be a good way to orient our economy.

I would much rather have industries at the high end and the most innovative and most productive than essentially forcing a certain part of the workforce into these low wage, low productivity sectors. And that’s the trouble we have in some of these issues like so you say male labor force participation and the rest. I don’t think anybody doubts that, hey, there are reasons to be concerned in some of this. There are reasons to be concerned about declining male labor force participation overall, but industrial policy ain’t going to solve the problem.

Having just a bunch of additional textile manufacturing in the United States or furniture or food or whatever is not going to solve the problem. These are really complex issues that are some cultural, some demographic, looking at women joining the workforce, some just modernity doing its thing, some related to education and the rest. These are not things that you can just simply flip a switch, impose some textile tariffs and then boom everybody’s having babies again.

Richard Reinsch: Yeah, and you mentioned this in your writing that there are a lot of places, regions, cities in America that were heavy industrial and they experienced a decline and then they recovered.

Scott Lincicome: Yeah.

Richard Reinsch: One you mentioned resonated with me, which is Spartanburg, South Carolina. I’ve been through there a number of times, and it’s a nice city. And you get the sense of this city is robust, economically. Certain places in North Carolina as well, but then you’ve got Pittsburgh, another one, and then you’ve got Youngstown, PA, which never came back, and which… I can’t speak to the decisions that they’ve made but it’s like always wanting someone to save you or always wanting to bring the past back and you’ve just got to let it go and retool, and that hasn’t happened there.

And then this question too, of prime age working men. There are a lot of idle men. There’s also a lot of welfare dependency, I think there too. I think there’s a lot of government policies that have made this possible and that rarely gets mentioned.

Scott Lincicome: Exactly. Yeah. And that goes back to, I think, the complexity of some of these issues is, is the safety net in some cases doing more harm than good? There have been a series of papers out recently that look at work requirements that were a part of welfare reform in the ’90s and they said that these were at the time these reforms that were accused of being draconian and the rest actually ended up improving the long term out outcomes of single mothers or children in these families that were affected.

And those are, again, those types of really more complicated questions, but going back to what you said about Spartanburg versus Youngstown and the rest, and for those who are listening, I wrote an op-ed or a long column on this. But there are cities all over the country that were hit hard by the shift in the 1990s and 2000s. Whether it’s trade with China or automation or just changing industries, moving away from coal or whatever. But we hear a lot about these old industrial cities, what we don’t hear about is that the vast majority of them did adapt.

And they adapted, I think in part because of economic policies, I think certain states in particular had really bad economic policies and that makes change more difficult. The other big thing, though, like you said, is that there is this idea of economic nostalgia, that we were a city defined by a certain industry, textiles in Spartanburg or steel in Youngstown, and that’s what we’re going to be. Gosh, darn it, forever. Well, Spartanburg said, “No, you know what…” They saw the writing on the wall in the 1970s and they being industry and political leadership in the state.

And so, what did they start doing? Well, they started courting for investors in automotive manufacturing, in tires for Michelin or in automotive in BMW, but also they said, “Look, let’s diversify in the services again.” And they had the willingness and the economic policies in place to adapt and now they’re thriving and those towns, Pittsburgh, another one, those towns are all over the country. We never hear about them. Instead, we hear about Youngstown where Youngstown did not diversify.

Youngstown wanted to remain a steel town. Youngstown struggled to do anything beyond that, despite tons of federal intervention. And that I think is the story that we need to tell more on the free market side of things. That certainly some older industrial cities still struggle, but the vast majority of them have moved on. And it’s that contrast, you got to ask, well, why didn’t those cities move on? What were they doing wrong? It’s probably not a failure of federal policy, whether it’s tax, trade or whatever, surely may be some, but it’s far more likely that this is a problem of state and local governance and of other things.

I think one of the things we’re looking at in retrospect is that the Milltown economic model where you have a single mill at the center of a town and that the town is undiversified, it’s essentially dependent on a single industry, a single factory or company is a really bad model in terms of withstanding economic shocks. That a diversified city is, and it doesn’t even have to be a place like New York city or San Francisco or whatever. It can be a place like Spartanburg or here in Raleigh, for example, where I live. These are diverse areas and it’s much better to have your eggs in a lot of baskets instead of in one basket.

Now, is that a reason for industrial policy or for protectionism or something like that? I think that’s quite manifesting obviously not, but it’s again, an argument and a viewpoint that we rarely hear in the press. It’s all just simply closed mills, shuttered towns and economic populism.

Richard Reinsch: Also, there’s this view of America as a, we’re just in this free market country for the last three decades and these jobs just fell prey to the amount of capitalism. Senator Marco Rubio has said that at times, among others and then China got all the jobs and it seems to me it is the case. America has been very actively engaged in trying to keep and protect manufacturing jobs.

Scott Lincicome: Yeah.

Richard Reinsch: Including steel jobs and that isn’t widely known and it hasn’t worked. And you pointed out in your writing, if you look at countries, Western countries, Germany sticks out, I think France sticks out, that have really tried to manufacture or keep their manufacturing jobs, they too have experienced a decline as well. It’s automation and also offshoring and also consumer decisions as people get wealthier, they buy more refined products and services with that income. And so, that also, but that takes a while to explain that.

Scott Lincicome: Yeah, exactly. That brings up another great point is that you hear so much that the plight of the American working class is due to decades of laissez-faire, free market fundamentalism, right? But when you actually dig into the history and the policies, you see that look, first of all, the United States has a lot of protectionism in place. You look across certain industries and across, whether it’s ship building or sugar, or even textiles and apparel and footwear, or then you look at anti-dumping and counter bailing duty policy where we have hundreds of special duties in place specifically intended to protect American workers and American manufacturing. And these things, it turns out that, like standing in the middle of the ocean and promising to stop the waves.

It might, maybe you have a little success for a second, but at the end of the day, you’re going to get soaking wet anyway. And that’s because these are bigger global phenomena that are happening all over the world, they tend to happen as countries develop economically. And it’s those seismic forces that are really what’s driving things at the end of the day. And that protectionism most often, and the subsidies and the rest most often do more harm than good by encouraging industries to not innovate in the face of competition.

By encouraging workers not to adapt and upgrade their skills or move on to other industries. And by creating bloated industries like the ship building industry, which has had a hundred years of protection from the Jones Act, and now can’t make a ship that’s worth a darn. It costs five times as much to make a ship in the United States, as it does abroad as a result, you’ve seen the slow degradation of the US merchant Marine and all sorts of other distortions. And, by the way, an industry that is far better at lobbying than it is at making ships, because they have a…

Honestly, it’s a really impressive lobbying machine to maintain that protection. And so, that’s the sad, but true story of a lot of industrial policy that it just doesn’t work very well in the face of these broader challenges. With that in mind, there are things that do tend to work pretty well. Nothing’s perfect, but we know that whether it’s streamline tax and regulation policy or high skill immigration, or just immigration generally, there are things that do tend to help, but it’s just not, like you said, it’s not an easy solution as opposed to just saying, “I’m going to save all your jobs.”

Richard Reinsch: Yeah. It requires patience. It requires a certain amount of prudence and the ability to see things in the long term and-

Scott Lincicome: Yeah. And an optimism too. One of the things I like about being on the free market side of things is there’s an inherent optimism in supporting free markets. The idea is that, I actually do think that the US economy for all its worth is a prosperity machine and has been one for a century plus. And I think that individuals can, if given the opportunity can better themselves and can make it. However, you want to describe it. It’s nice to be on that side because quite frankly, the industrial policy side is really quite pessimistic.

Workers can’t make it, industries can’t survive, innovation can’t exist without massive subsidies or protection or whatever. And that the best thing that we can do for these communities is to just let them stay etherized or frozen in Amber in a certain period of time that has long since passed instead of giving them a kick in the butt and getting them along the way.

Richard Reinsch: Yeah. Scott, maybe we’ll end there. Thank you so much for coming on to discuss what is industrial policy and what it would look like if it were implemented. Appreciate your time.

Scott Lincicome: My pleasure. Thanks for having me.

Understanding Lee Dec 02, 2021

Hello, and welcome to Liberty Law Talk. I’m your host Richard Reinsch. Liberty Law Talk is featured at the online journal, Law & Liberty, which is available at lawliberty.org.

Richard Reinsch (00:19):

Welcome to Liberty Law Talk today, I’m talking with Allen Guelzo about his new book, Robert E. Lee: A Life. Allen Guelzo is one of our great American historians of the Civil War, of Abraham Lincoln, of slavery, of reconstruction. It’s an honor for him to join us today. I mentioned the subjects he’s published on. He’s published numerous books in those areas, also books that are award-winning, including Gettysburg: The Last Invasion, which spent eight weeks on The New York Times Best Sellers list, won the Guggenheim-Lehrman Prize in Military History, the Fletcher Pratt Award of the New York City Roundtable, and the Richard Harwell Award of the Atlanta Civil War Roundtable. Recently published a book, Redeeming the Great Emancipator with Harvard University Press, and Reconstruction: A Concise History with Oxford University Press. Allen, we’re glad to have you on the program and we’re thankful also for the contributions you’ve made to Law & Liberty over the years.

Allen Guelzo (01:20):

Richard, thank you for the invitation. I’m glad to be here, glad to be able to speak to the Law & Liberty audience, and especially be able to talk about this new book on what is really something, I guess, of an unusual subject for me to be handling.

Richard Reinsch (01:34):

Yeah, and I mentioned to our audience, I couldn’t go through all of your publication achievements, because there’s so many, but as I said, they include Lincoln. They include slavery, the Civil War, and you are not shy about the side that you take. And I think about you, Allen, I think about not only your historical work, but I think of you as a man firmly dedicated to natural rights, to the Declaration of Independence, and firmly to the American Constitutional Project. And so that leads me to ask you this question. What got you interested in writing about Robert E. Lee?

Allen Guelzo (02:13):

It might have been a certain perverseness or at least the perverseness of curiosity. I have spent a lot of time writing about the Civil War. I spent a lot of time writing about Abraham Lincoln, in particular. And you might say that in 2013, after I’d finished work on the Gettysburg book, the question that came to my mind was, what next, and the thought that came in accompaniment with that was, what would it be like to look at this Civil War from the other end of the telescope? Now, I’m a Yankee from Yankee land, no question about it. And I was always raised at my grandmother’s knee with a sense of the righteousness of the Union cause. She had been a school girl in Philadelphia at the turn of the last century. And at that time there were still old union veterans who would make a point of coming to her school, the George Clymer School on what they then called Decoration day. We call it Memorial Day. And they would come and they would talk about the real meaning of the war and the real meaning of the war was not what those horrible, treasonous Johnny Rebs were telling people way down below the Mason Dixon line. So she imbibed early on the Union cause, and I learned that from her and that for me was the default position.

So that it was always a curiosity for me growing up to find people who would display the Confederate flag. What are you doing that for? That sets the flag of the enemies of the country. And people who glorified Robert E. Lee, I’d go, wait a minute, the man committed treason. So I thought in 2013 and into 2014, what would it be like if I was on the other end of the telescope, what would the Civil War look like? And in particular, I was intrigued by a question I just sort of barely alluded to. And that is, how do you write the biography of someone who commits treason? That’s an interesting point of view because it’s easy to write biography of people you can admire. If not entirely without any qualification, I don’t think you can do that for anyone. But certainly, to write about people whose basic achievements are things that we admire today and take strength and take consolation from, Robert E. Lee is different because he did commit treason and I don’t use the word lightly either.

Some people throw that around as a negative term that they would hang on someone like said, you are ugly. Treason has a very specific meaning for me. My father was a career army officer. He took the oath that all army officers take. My son is, United States Army and he took the oath. I took the oath when I became a member of the National Council of the Humanities when I was appointed there by President Bush in 2006, and I take that seriously. It was an oath to defend the Constitution against all enemies, foreign and domestic. And Lee fought against that oath. He turned his back on an oath he had sworn and he raised his hand against the flag and the Constitution that I and my family had taken an oath to defend. So when I looked at the man, my most general sense was, I am looking at a face of a man who committed treason. How do you write the biography of someone like that? That’s a challenge. And the challenge, well, the challenge appealed to me, I guess in the same way that Mount Everest appealed to Mallory. When people ask him, why do you want to climb Mount Everest? And you know, he responded “because it’s there.” So to Robert E. Lee I went, and what we have now is the result of seven years worth of work on Robert E Lee.

Richard Reinsch (06:19):

Trying to think about the treason point, trying to walk in Lee’s shoes and think about the world as he did as best we can do that, just for even trying to do that on this treason point. And you can probably reproduce the quote word for word. It’s something like “I’m a citizen of America, but I’m a citizen of Virginia first.” Why didn’t he think he was committing treason?

Allen Guelzo (06:45):

He wouldn’t even talk in terms quite that specific. When he makes his decision in April of 1861, it’s really a series of decisions. It’s a decision first to turn down an offer that comes to him from Abraham Lincoln through an intermediary, the old Washington political hands, Francis Preston Blair. And Blair and Lee meet at the home of Blair’s son, Montgomery, on Pennsylvania Avenue. That’s Blair House, literally, that’s where they met. And there, Lee declines the offer that is made to him to take command of any federal forces that are going to be used to suppress the Southern rebellion. He then goes and resigns his commission in the United States Army. He was at that moment, colonel of the First United States Cavalry, resigns that commission, then he goes back home to Arlington and he makes a third decision. And that is to leave for Richmond and to accept an invitation from the governor of Virginia to take charge of Virginia’s state forces. That’s really three decisions that happen in sequence, but they are decisions that take him, each one of them, a step further and further away from his original allegiance. And the one thing which runs as a common thread through all of those decisions is this insistence, I cannot, I cannot draw my sword against my native state. Now, people have interpreted that as saying, well, this is because in Lee’s day, people understood their citizenship in their states to be on an equal plane with, or maybe even superior to that of their citizenship in the nation. I think that’s questionable. I think that’s questionable in 1861.

So what exactly is he referring to when he says I can’t draw my sword against my native state? I think what he is really talking about is this vast network of kin. And I think he’s also talking about protecting the property that he was charged with passing on to his children, and especially the property that today we identify as Arlington.

Richard Reinsch (08:42):

Yeah.

Allen Guelzo (08:43):

Yes, there was some constitutional uncertainty that’s not actually clarified finally and utterly until the 14th amendment, but I don’t think there’s a whole lot in the way of Lee’s decision making that was bound up with technicalities like that. I think for him, when he says he can’t draw his sword against Virginia, what he’s really talking about is the vast network of his kin folk and his family.

Richard Reinsch (09:07):

Okay.

Allen Guelzo (09:08):

Because many of the members of that family are people who came to the rescue of Robert E. Lee and his siblings and his mother when they were pretty well left on their own in Alexandria before Lee went off to West Point and he was thinking about the debts and the obligations he owed to this vast network of kin. And that was an important consideration for him.

Richard Reinsch (09:32):

So as I listen to you and I want to talk about that Lee in Virginia too, because that is new to me, this difficult childhood he had and being abandoned by his father, his father being “Light-Horse” Harry Lee, a famous man.

Allen Guelzo (09:47):

Oh yes.

Richard Reinsch (09:49):

And so one question, and maybe you’ve answered that. Lee is a political thinker. You don’t at all think perhaps what was in the air was the compact theory of union, of Calhoun, other Southern thinkers that had become certainly part of the discourse, that somehow that legitimated what he did. To me, I listen to you and I think, well, this is home and men just don’t turn against their home.

Allen Guelzo (10:18):

For Lee, the notion of the union as being a compact theory was nonsense. And he said as much in letters that he wrote during the secession crisis. For Lee, the United States as a nation had the primary authority. And he dismissed argument in favor of secession as being nothing but revolution. And we might say, well, what’s the difference between secession and revolution? Actually, there’s a big difference. secession is, technically speaking, a peaceable process of separation. It involves legal and constitutional niceties, but it’s the kind of things that happen when two particular groups of people within a single nation state decide that they really, for a variety of reasons, want to go their separate ways. And you had secessions like this take place within Lee’s lifetime.

For instance, Belgium is a secession from the Netherlands. And then later on after the of the 20th century, Norway. Norway as an independent nation is a secession from what had been the dual kingdom of Norway and Sweden. That’s a secession, but a revolution is different. A revolution is when you cut the ties, you create discontinuity, you do what we did in our American Revolution. That’s why we call it the American Revolution or revolution.

We didn’t secede from the British Empire, we had a revolution because we not only cut our ties to Great Britain, we actually got rid of the entire notion of monarchy, hierarchy, British law, everything that connected us in any real way to the British past. All of those things were thrown overboard and we created an entirely new nation, a Republic, based on entirely different principles than the British Empire had been built upon. That’s a revolution.

Lee looked at what Southerners were trying to do, and he was scornful when they tried to use the term, secession. He says, this is not a secession. This is a revolution. And if you take him on those terms, then you scratch your head and you wonder, well, if he understood what all this argument about secession and compact theory and so on like that was just a massive donkey’s kidneys, then you wonder why did he do what he did. And I think the answer is bound up with questions about family and questions about family property. After all, Lee, although Lee is born in Virginia in 1807 at Stratford Hall on the Northern Neck, he actually does not live most of his life in Virginia.

When his mother decides that they’re going to pick up from Stratford and move to Alexandria when Lee is less than 10 years old, Alexandria was not part of Virginia then. Alexandria was then part of the District of Columbia. Alexandria and that part of Virginia on the Potomac shore is not retro-ceded to Virginia until the 1830s when Lee is long gone. So Lee grows up in the District of Columbia, not Virginia. Then he goes to school at West Point in New York. His first assignment as a graduate of West Point is to Georgia. He works on saving the waterfront at St. Louis in Missouri. He has a brief assignment at Fortress Monroe that does take him back to Virginia, but then he is assigned to Fort Hamilton in New York. He serves a spell as Superintendent of West Point, again, New York. And he’s assigned to coastal fortification construction in Baltimore Harbor. Look, you take all that together, the man actually spent more consistent time living in the state of New York than he did in the state of Virginia.

So what exactly is he referring to when he says I can’t draw my sword against my native state? I think what he is really talking about is this vast network of kin. And I think he’s also talking about protecting the property that he was charged with passing on to his children, and especially the property that today we identify as Arlington. We think of it as Arlington National Cemetery, but before it became a national cemetery, Arlington was the estate of Lee’s father-in-law, George Washington Parke Custis. And Lee felt a particular responsibility as the executor of Custis’s will to make sure that that property got passed on appropriately to Lee’s own children. When Lee talks about his native state, I think he’s very largely talking about protecting family and protecting family property more than anything else.

Richard Reinsch (15:02):

It’s almost like a deep, very deep Burkean sense of social responsibility, family responsibility.

Allen Guelzo (15:10):

Yes, but it’s also connected because I don’t think he would’ve, if we had quoted Edmund Burke to him, I don’t think he would’ve even necessarily recognize who we were quoting. I think what it really goes back to is the experience of his own father. Light-Horse Harry Lee was a great hero of the American Revolution. He had come into the Revolution as a young man, fresh out of college. He shows a remarkable talent right away for command of horse soldiers. And he becomes part of that circle of young men whom Washington virtually adopts as his surrogate sons, people like Alexander Hamilton, people like John Lawrence, people like Marquis de Lafayette. And Light-Horse Harry, he acquired that big name from his talent at command of cavalry. He becomes part of that circle and he’s very successful during the Revolution.

The problem is that after the Revolution, that was when the success dried up. Like many veterans of the Continental Army, he looked to make a fortune in investing in Western land, lands of the upper end of the Potomac River, lands in Western Virginia, which they hoped would be developed with a view towards establishing a water connection between the Potomac estuary and the Ohio River. And beyond that, of course, the Mississippi. That never ever practically panned out. And Light-Horse Harry Lee lost money, hand over fist.

He married his cousin, Matilda Lee, that made him the master of Stratford Hall, but he burned through her cash. When she died, he remarried, this time to her Virginia Carter and he burned through her cash too, so much so that he ends up in debtor prison. And not only does he make one catastrophic economic decision after another, he makes catastrophic political decisions. In Jeffersonian Virginia, he identifies as a Federalist and in the early months of the War of 1812 finds himself mobbed by a pro-war of 1812 mob in Baltimore and is beaten within an inch of his life. And after that, he decides it’s time to go someplace else. So he decamps for the West Indies. And although he makes a brief effort to return to the United States, he makes landfall on Cumberland Islands on the Georgia coast, he’s dying of cancer and he dies two weeks after making that landfall, never makes it back to Virginia, never sees his son Robert again. Robert, the last time Robert saw his father, he was six years old.

Richard Reinsch (18:03):

Wow.

Allen Guelzo (18:04):

And that meant that effectively Robert grew up fatherless and the trauma that inflects on children who are standing somewhere shy of the door of adolescence, that is one of the severest of all human hurts. And I think Lee carries that with him all his life. He carries with him the embarrassments of his father’s actions and his father’s shortcomings. And he carries with him the pain of his father’s desertion for a good 40 years of Robert E Lee’s life. He’s always being introduced to people as the son of Light-Horse Harry Lee, yet Lee himself, only one time in all of his voluminous personal correspondence, and this is a man who’s a compulsive letter writer, he writes something like six to 8,000 letters in his lifetime. In only one letter, does he ever refer to his father, and that’s his application letter to West Point when he really needed to be able to cite the old man’s authority. Apart from that, no reference to his father. In fact, he does not even visit his father’s grave in Georgia until December of 1861 when he’s finally coming into his own as the great General Lee.

So at the outbreak of the Civil War, people would’ve scratched their heads a bit and said, why should Robert E. Lee be given major command of anything? And I think the reason lies in the fact that Winfield Scott thought so highly of him, praised him so highly, pushed him forward first to Lincoln’s attention. But the other person who was interested in him was Jefferson Davis, the president of the Confederacy, because Davis had been the Secretary of War during the years when Lee was the superintendent at West Point. Davis was very impressed with Lee.

Richard Reinsch (19:32):

Yeah.

Allen Guelzo (19:33):

That is a remarkable omission. And I think it says a lot about how Robert E. Lee felt, that he was responsible for redeeming the losses inflicted by his father and I think that governs a great many of the decisions that he in life.

Richard Reinsch (19:52):

Now, Lee at West Point is a success as a cadet, as a student.

Allen Guelzo (19:57):

Oh, absolutely

Richard Reinsch (19:58):

Remarkable success. You are right, he’s able to join what was considered the very prestigious civil engineering corps in the United States Army because of that great success at West Point. And he’s in the military at that point. And what I thought was interesting is, civil engineering wouldn’t exactly be battlefield command. I mean, he’s like building fortifications and diverting water, things like that. How does he go from civil engineering to great battlefield commander? And maybe that’s a sub-question, was he a great battlefield commander?

Allen Guelzo (20:33):

It doesn’t happen naturally, let’s put it that way. Robert E. Lee has this wonderful record at West Point, he graduates second in the class of 1829. And by the way, whoever remembers who graduated first? I’ll tell you, it is a man named Charles Mason, who later became a judge out in Iowa. Robert E. Lee graduates second. That’s good enough to get him a commission in the Corp of Engineers, which is the elite technocracy, shall we say, of the United States Army in those days.

But the Corps of Engineers was devoted entirely to constructing things, constructing roads, helping to build canals and especially constructing fortifications, which, in the American context, really falls under the category of what we call coastal engineering. That’s the way he spends most of his Army career. And the only exception to that is the Mexican War from 1846 to 1848.

When the Mexican War breaks out, he is assigned as an engineering officer to general John Wool in Texas. From there, he’s moved over to serve on the staff of Winfield Scott. Winfield Scott is launching one of the most ambitious expeditions of the 19th century. He lands at Vera Cruz on the Mexican coast, captures Vera Cruz and then marches inland to the capture of Mexico City. Scott had a sharp eye for military talent and that eye comes to rest on Robert E. Lee. He makes Lee into more than just an engineering officer. He makes Lee into almost his chief aide. It’s Lee who does the reconnaissance for him. It’s Lee who carries the messages and the orders. And Scott would say in years later that all the laurels he won in the Mexican War were really due to Robert E. Lee. But that’s really the first time the man has any connection with active combat operations of the Army, and even then he’s not commanding them. And when the Mexican War is over, he goes back to constructing fortifications, first in Baltimore, and then he takes charge of West Point.

After his superintendency at West Point, he’s had really enough of the lack of promotion that you sustain in the Corps of Engineers and he accepts a transfer into the Second Cavalry, which takes him off to Texas. But even there, even what he is really doing is, is kind of frontier policing duties. It’s sort of the Texan equivalent of the Royal Canadian Mounted Police. And even then, he never fires a shot in anger. The very first time in Robert E. Lee’s life that he ever commands soldiers in action under fire is in 1859 when he is called upon to take charge of suppressing John Brown’s Insurrection at Harper’s Ferry, which he does very successfully, very neatly, very cleanly, very responsibly, but it takes until 1859. He’s been in the army for 30 years before he’s ever really in charge of people who are initiating combat operation. And even then, it only involves two companies of US Marines.

So at the outbreak of the Civil War, people would’ve scratched their heads a bit and said, why should Robert E. Lee be given major command of anything? And I think the reason lies in the fact that Winfield Scott thought so highly of him, praised him so highly, pushed him forward first to Lincoln’s attention. But the other person who was interested in him was Jefferson Davis, the president of the Confederacy, because Davis had been the Secretary of War during the years when Lee was the superintendent at West Point. Davis was very impressed with Lee. Almost everybody who met Lee was impressed by the man, but Davis, in particular. And so Davis undertakes to have Lee put in charge of major aspects of the Confederate War effort in 1861. So there we find ourselves by this very crooked path with General Robert E. Lee, a man who, as far as 1861 goes, his sole combat experience was dealing with John Brown at Harper’s Ferry. It’s a very unpredictable, and I think the word really is, surprising development.

Richard Reinsch (25:03):

So you and I were talking offline about Lee, the legend. And you mentioned just now everyone that, virtually everyone, that meets him is impressed with him. So maybe let’s just talk about that. Is the legend real or what were his personal qualities that so esteemed him in people’s eyes?

Allen Guelzo (25:24):

Well, the legend is, it’s as real as legends can be real because nearly everybody who laid eyes on Robert E. Lee was tremendously impressed by the man’s bearing, by his dignity. And yet at the same time, as people are impressed by their dignity, there’s also a certain coldness, a certain off-puttingness about Robert E. Lee.

On the road to Appomattox, he’s ready to come to the point where he is going to surrender his army. He says to one of his, in fact, he says to more than one of his aides, this is how I knew it was always going to end. I knew it was going to happen like this. Why, because southerners just weren’t up to the task. So he’s willing, even at the end of the war, to point the finger at the behavior of his army, at the behavior of the Confederate people, themselves. They, in a sense you might say, they failed him. There’s the perfectionist at work.

The famous South Carolina diarist, Mary Chestnut. Her husband was a Confederate senator. She kept one of the great diaries of the Civil War era. She met Robert Lee just before the outbreak of the war at the White Sulfur Springs in Western Virginia, because that was where Lee took his wife, Mary, because Mary Lee at that point was plagued by rheumatoid arthritis. And so they went to benefit from the hot springs there. Mary Chestnut writes in her diary that a man riding a beautiful horse joined us with a hat that somehow had a military look to it. And she said, he sat his horse so gracefully. He was so distinguished in all points. She regretted not actually getting his name. So she went around and asking afterwards, who was he? And the answer came back, Robert E. Lee. Chestnut marveled everything about him. She said, what’s so fine, and the word that came to her mind was, perfection. You couldn’t find a fault in the man if you hunted for one. And yet even Mary Chestnut, when she says that is not really enchanted by him. She said that she actually liked his older brother, Sidney Smith Lee better because Smith Lee was so affable and so friendly. One of these hail-fellow-well-met types. Chestnut wrote, I know Smith Lee well. And then she added, can anybody really say they know his brother? I doubt it because Robert Lee, she said, looks so cold and quiet and grand.

A cadet at West Point when Lee was the superintendent there wrote to his mother and described Lee as the marble model. And even Ulysses Grant at Appomattox, they’re there in the McClain Parlor conducting surrender negotiations, and Grant, in his memoirs writes about how small he felt compared to Robert Lee who was sitting there dressed in this beautiful uniform, everything perfect. And here it was Grant and this muddy old uniform and his muddy boots. And it was almost the case where you had this sense, that Grant felt almost in the edge of apologizing for how he looked. Lee impressed people over and over again with that demeanor of the perfect man. But you see it was a perfection that arises out of this deep need for redemption. He is going to redeem the reputation of the Lee family destroyed by his father, and not only by his father, but by an older half brother who committed even worse offense and became known as Black-Horse Harry Lee.

Richard Reinsch (28:48):

Yeah.

Allen Guelzo (28:48):

But Robert Lee is going to redeem the Lee reputation. And I think that that determination, that passion to redeem is what drives the perfection of his behavior. He’s going to show that he is not Light-Horse Harry.

Richard Reinsch (29:05):

So if we think about that, what are his faults? What leads him astray?

Allen Guelzo (29:12):

The perfection leads him to demand of people things that ordinary human beings are not really capable of doing. He’s very demanding of his army. His adjutant, Walter Taylor, wrote in letters that Taylor sent to his fiancee during the war, General Lee is so unappreciative. I work for him and I do this for him. I do that for him. And there’s never a word of thanks. Now, this didn’t mean that Taylor didn’t admire Lee, but he had to admire Lee from distance. Lee demanded much from himself and he demanded much from others. And so those who didn’t live up to his expectations, he could be very, very hard on them.

He once erupted at another aide who had permitted someone to come in to his tent and argue with Lee. Lee came out afterwards and he upbraided his staffer. Why did you let that man come in and make me lose my temper? And he’s particularly hard on other subordinates. At the end of the Battle of Chancellorsville, he really expected that his brigade commanders were going to close in and push the Army of the Potomac right up against the Rappahannock River and destroy it. And they don’t, they allow Joe Hooker and the Army of the Potomac to escape across the fords of the Rappahannock River. And Lee goes on the tirade denouncing, well, he fixes on General Dorsey Pender, and he said, General Pender, how could you let those people get away? That is what you young men always do. I can never get my orders carried out.

After the battle of Antietam, he writes a letter to his two principal subordinates, James Longstreet and the famous Stonewall Jackson upbraiding them for the lack of discipline in the Confederate Army. And he lays out in this severe, scorching letter, how the Army has to completely restructure how its officers behave. We have to have an end to this. We have to have punishment. There has to be enforcement. We need brigade guards to force stragglers to rejoin their unit. It goes on and on and on. And I have this picture of Longstreet and Jackson reading this letter and looking at each other, rolling their eyes and saying, what is the old man want from us?

Richard Reinsch (31:43):

This is the Battle of Antietam, one of the worst battles in the war. It’s incredible.

Allen Guelzo (31:48):

Yeah. This is after Antietam. Yeah. So he’s extremely demanding of people. And probably the people he’s the most demanding of are the Confederate politicians. He goes all through the war doing nothing to complain about how ineffective of the Confederate politicians are. He complains to his son, he complains about the Confederate Congress. He says, all they do is chew peanuts and spit tobacco. They take no action of any worth or any reckoning themselves. And even on the road to Appomattox, he’s ready to come to the point where he is going to surrender his army. He says to one of his, in fact, he says to more than one of his aides, this is how I knew it was always going to end. I knew it was going to happen like this. Why, because southerners just weren’t up to the task. So he’s willing, even at the end of the war, to point the finger at the behavior of his army, at the behavior of the Confederate people, themselves. They, in a sense you might say, they failed him. There’s the perfectionist at work.

Richard Reinsch (32:56):

That’s incredible. Another question that comes to mind, which I’m sure our readers would, would love to hear more about. Robert Lee and slavery. How does he approach?

Allen Guelzo (33:06):

Oh yes.

Richard Reinsch (33:07):

How does he approach this?

Allen Guelzo (33:08):

The best image I can sum up for people in explaining this is a zigzag. On the one hand, Robert E. Lee never was personally closely wrapped up in the institution of slavery. He inherited one slave family from his mother’s estate, but emancipated them in December of 1862. So on the one hand, you might say, well, he’s only tangentially connected to slavery. Yeah, but he marries Mary Anna Randolph Custis. And by marrying into the Custis’s, he is marrying a family that not only owns Arlington, but owns 190 slaves. That means even though Robert E. Lee doesn’t own slaves in his own name, he still benefits from most of his life through the labor and the services that those slaves provide to his wife and to his children. So yes, he is involved in the slave system.

At the same time, the Custis’ had a very dicey connection to slavery. Both of them, both old George Washington Parke Custis and his wife, Mary Fitzhugh Custis were great supporters of colonization talk. I mean, Custis himself talks about slavery as a vulture, which is devouring the innards of the south. And in his will, he actually provides, mandates the emancipation of the Custis slaves within five years of his death. And Robert E. Lee is the executor of that estate, and Robert E. Lee is charged with that. And Lee, in fact, does go ahead after the period of five years to emancipate the Custis slaves, according to the will. He does that in December of 1862, and when you think about it in December of 1862, if Robert E. Lee had gone into any Confederate court in Virginia and said, oh, look, we’re not going to go through with this. We’re not going to emancipate slaves. Well, the Confederacy is fighting to keep people in slavery. Why should we emancipate slaves? If Lee had gone into a court and done that, I have a hard time imagining a Confederate judge objecting. Nevertheless, Lee insists. He signs up his son, Custis, in Richmond to make sure all the papers are done right. He ignores people who are suggesting that he should wait until the end of the war. He marches ahead to that emancipation. And as I say, also emancipates the one slave family he owns in his own name.

There were many things about Lee that I learned that I had not taken account of earlier. I had not fully understood the impact of his father’s departure and the trauma that, that inflected on him. I had not fully understood the yearning that Robert E. Lee had for independence. He wanted to be able to stand on his own two feet. He knew what it was like to be dependent, and he disliked it intensely.

Beyond that, he is hectoring Jefferson Davis during the war, telling Davis that slavery is a millstone around the Confederacy’s neck, that the Confederacy has to move to emancipation. And then finally in the spring of 1865, the early spring, he is the most vocal of Confederate leaders advocating the recruitment of blacks for the Confederate Army, with emancipation as a reward for themselves and for their family for service in the Confederate armies. That catches him a lot of criticism. When he goes public with that, the Charleston Mercury simply goes berserk with rage. It denounces … this is a Confederate newspaper. They denounce Robert E. Lee as a sell-out, as just another old time Federalist, who was never with us from the start. And you know, there’s one interesting footnote to this too.

During the war, of course, Arlington ends up being occupied by the Union forces. And that meant that the Custis slaves, many of the Custis slaves at Arlington just simply drifted away, across the river into the District of Columbia. And when they were there, a number of them were emancipated under the District of Columbia emancipation bill of April 1862. One of them was interviewed in the process by the emancipation officers and it turned out it was Philip Meredith who had served as Lee’s valet. Well, this caused quite a ruffle of interest because here was General Lee’s valet, and he’s applying for emancipation in the District, so they interview him. And he says, well, you know, General Lee never liked slavery. General Lee always told me that he wished that I could be free and that there would be no slaves. And yet here’s the zigzag. Richard, here’s the zigzag. Lee will say things like that. He’ll even write in a letter to his wife, slavery is a moral and political evil in any country, yet he will never actually do anything about it himself. He will emancipate the Custis slaves, but that’s because he’s the executor of the estate. He could have done it right away instead of waiting five years, but he doesn’t. He knows that slavery is wrong. He says that slavery is wrong. And yet he looks at that and then he looks away.

Richard Reinsch (38:17):

Well, that sounds like Thomas Jefferson.

Allen Guelzo (38:19):

Yeah. Well, in that respect, yes, he is like Jefferson. He does not have the profundity of a Thomas Jefferson. He doesn’t reflect on the inconsistency of what he’s doing the way that Jefferson did when Jefferson talked about having a wolf by the ears.

Richard Reinsch (38:35):

Yeah.

Allen Guelzo (38:36):

Lee looks at slavery and then he looks away. And if there is a tragedy in the personal character of Robert E. Lee, it is that defect that he could look at what was wrong, know what was wrong, know that it was a violation of natural right and natural law, and nevertheless, look away from it and do nothing.

Richard Reinsch (38:59):

Yeah. I hear you. That also sounds like human nature to me.

Allen Guelzo (39:03):

Yes, it does.

Richard Reinsch (39:06):

It sounds like the way of the world.

Allen Guelzo (39:06):

It is very much the defect of human nature. Of course, we have the privilege 150 odd years later of being able to sit in judgment on that and saying, well, he should have known better. He should have done this. He should have done that.

Richard Reinsch (39:18):

Yeah.

Allen Guelzo (39:19):

Well, yes, he should have. And as a historian, it’s my job to make judgements like that. And I do make that judgment about Robert E. Lee. On the other hand, I hope that in making that judgment about Robert E. Lee, I cause myself and all the rest of us to reflect on kinds of inconsistencies that we perform ourselves on an everyday basis so that when we find ourselves pointing the finger at Robert E. Lee, we recognize that we also ourselves stand under that kind of judgment. That’s what brings me to a kind of Lincolnian view of the entire landscape of writing about Robert E. Lee.

Richard Reinsch (39:59):

And I wonder maybe that’s sort of an answer to my next question. In the course of this project. And, of course, we set forward at the beginning, the history that you’ve done, Lincoln, slavery, reconstruction, Civil War. In the course of all your research and writing, what did you learn that surprised you? Anything cause you to rethink past convictions, past judgements, or did new thoughts and ideas form in your mind about America?

Allen Guelzo (40:30):

That is a difficult question to answer because every time you plunge into a subject this way, you find yourself dealing with so many aspects and so many details. There were many things about Lee that I learned that I had not taken account of earlier. I had not fully understood the impact of his father’s departure and the trauma that, that inflected on him. I had not fully understood the yearning that Robert E. Lee had for independence. He wanted to be able to stand on his own two feet. He knew what it was like to be dependent, and he disliked it intensely. He had had to grow up dependent on the goodwill, and sometimes the handouts, of his Carter relatives and his Fitzhugh relatives and other Lee relatives. And like any person with a modicum of talent and understanding of his own gifts, he accepted that because he had to, but he also learned to resent it and to yearn for independence. And that’s a theme that runs through Robert E. Lee all through his life.

The other thing that you learn in working through Lee’s material and reading his letters is how much he yearned for security as well. He was not what you would call a poor man. Part of Anne Carter Lee’s estate involved lands and money that today we would reckon as being fairly substantial. When he makes out his will, before he goes to the Mexican War, he makes out a will. And in it he has to itemize what his property is. And when you add all of that up, his estate at that point amounted to about $32,000. And so translate that into 2021 dollars and we’re talking about something in between one and $2 million. The man was not poor. And yet all through his life, he does nothing but cry a poor mouth. He is one of those people who is perpetually convinced that he’s about to go broke, that he’s about to go to the poor house. And he puts all kinds of constraints on his wife and on his children this way. He writes a letter, advice for one of his sons through his wife. And he says to Mary, tell him to be just before he is generous, and to be wise before he is liberal. In other words, wise, before he is open handed. Don’t give money away to people. He doesn’t have the avarice of the get, but he really does have the avarice of the keep. And when you put that beside the fact that he really was fairly well off, that’s just such a surprising juxtaposition. He just did not feel secure in that. And he’s constantly, through his life in search of security.

And the curious thing is that I think that he finally, in the last five years of his life, he finally takes those three threads, that passion for perfection, that yearning for independence, that searching for security. He finally is able to take those threads and twist them together in a rope that really works for him, that he can really climb. And that’s because after the war, he accepts this very strange invitation that comes to him to become the president of Washington College, in the upper Shenandoah Valley.

Now, Washington College was this very small college. It was not much more than a classical Latin and Greek academy for the Scots-Irish gentry of the upper valley. And it was almost wiped out by the war. He accepts the presidency to the surprise of almost everyone. And when he does, when Robert E. Lee takes over Washington College, he takes it over like he took over the army of Northern Virginia. He revamps the curriculum completely. He raises the endowment to a quarter of a million dollars. A lot of it from Northern donors. And he builds the student body up to over 400 students when it started out with just 12. He really makes Washington College into an educational powerhouse and a really, in educational terms, a progressive powerhouse, because he shoves to the margins, the classical education curriculum, and brings in majors in business in journalism, in engineering. I think that finally at Washington College, he’s able to draw together all those yearnings for security, for independence, for perfection. He’s finally able to call his own shots in life. And not surprisingly, he tells a student at Washington College, this is a real shocker. He tells the student, my greatest mistake in life was taking a military education. That point you think-

Richard Reinsch (45:49):

Wow.

Allen Guelzo (45:49):

Maybe he should have yielded to his older brother Carter’s blandishments to go into real estate development, or maybe he should have just retired from the Army years before and lived at Arlington as a country gentleman, or maybe he should have just, at the outbreak of the Civil War, declared neutrality. He could have done all those things. But finally, he gets a measure of resolution in those last five years of his life and I think it’s in those last five years as president of Washington College, that he finally gets a quotient of what we can call happiness.

Richard Reinsch (46:27):

Well, perhaps Professor Guelzo, we should end on that. Thank you so much for coming on to discuss your new biography, Robert E. Lee: A Life. Thank you. This is Richard Reinsch. You’ve been listening to another episode of Liberty Law talk available at lawliberty.org.

Provoking an Educational Renaissance Nov 01, 2021

Today we’re talking with James Hankins about the problems of liberal learning in our current age and all the many facets of that. He is a Senior Editor of Law & Liberty and a Professor of History at Harvard University. He’s one of the world’s experts on the Italian Renaissance and the humanism of the Italian Renaissance and is the author of the much-lauded, highly-reviewed book Virtue Politics: Soulcraft and Statecraft in Renaissance Italy.

Abusing the Power of the Purse Oct 15, 2021

Richard Reinsch (00:04):

Today we’re talking with Philip Hamburger about his new book, Purchasing Submission: Conditions, Power and Freedom. We’re glad to welcome Philip Hamburger back to Liberty Law Talk. We featured his work extensively here, including his wonderful book, Is Administrative Law Unlawful? He’s also the author of earlier studies, Law and Judicial Duty and Separation of Church and State.

Philip Hamburger (01:15):

Well, thank you. It’s great to be here with you. I love these podcasts and everything you all already do, so it’s an honor to be here.

Richard Reinsch (01:21):

Thank you.

Philip Hamburger (01:22):

Really appreciate it.

Richard Reinsch (01:23):

So tell us about this book, Purchasing Submission. Who is purchasing submission?

Philip Hamburger (01:30):

Right. The government. It’s, of course-

Richard Reinsch (01:37):

Aren’t they always.

Philip Hamburger (01:38):

They collect our money and use our own money in a sense to suborn us and to purchase our freedom. And they do it in more interesting ways than I think is commonly recognized. So when the government gives one money or it gives one some other privilege like a license, they often attach a condition to it. You can get a license as long as you let us use a piece of your land, or you can be a lawyer subject to the following conditions, or we’re going to give you research grants, but you have to do the following. And these conditions are widely recognized by scholars of constitutional law and the sort of technical legal question, a technical question as to when conditions violate constitutional rights because, ordinarily a right is violated when some sort of coercion is supplied, some sort of force of law of bought.

And so when you’re simply asked, well, how have you done X, Y, and Z, and if so, we’ll give you money. It doesn’t seem terribly pressured and coercive. And as a result, it seems a technical problem, when did these conditions actually violate one’s rights and when do they not, and this whole literature on this. But it’s not just that literature I think is incomplete, I think this fails to recognize what’s actually going on, this much bigger problem. It’s not just the threat to rights. There’s a purchase of consent to a whole new mode of governance, an alternative mode of control. And so when you step back and see that, conditions are no longer a technical problem, that’s actually a profound question of political theory and law.

Richard Reinsch (03:12):

Thinking about these conditions, which you kind of go through a range of different types of conditions that seem to be attached to privilege as the government is offering you. Do you see yourself as sort of, is this sort of groundbreaking in the sense of people have noticed this, talked about it, there’ve been some judicial notice of it, although I take it from the book, not enough. And you see yourself with this book trying to call our attention to this way the government is increasingly operating by sort of stripping us of rights and offering for porridge. And we give that because we want that.

Philip Hamburger (03:55):

So I hesitate to say anything I do is groundbreaking, but I do think it is new to see the breadth of the problem and there are two layers to the problem, to the difficulty. One, as we discussed is the threat to rights. They give you money in exchange for giving up some of your speech, for example, which is very common I’m afraid, but it’s a much broader problem in the sense that it’s a new mode of governance. One’s giving up, not just our rights, but one’s freedom of self-government. One way of thinking about it is it’s a new irregular pathway of power. So we’re all familiar with a regular avenue of power through acts of Congress and the courts. And you can get that from School House Rock, or you can get that from the Federalist Papers and the Constitution. Then there’s an alternative pathway of power, an irregular path, which is through administrative rules and adjudications where you’re commanded, do this, don’t do that. And if you violate that, we’re going to bring you in front of the administrative law judge to punish you, make you pay a fine. And that imitates the regular avenue of power in creating binding rules and binding adjudications, but not in our institutions. Those are the constitution, but new institutions that have an unelected law makers, the bureaucrats and judges who aren’t really independent. And that dichotomy between the regular and irregular path between the acts of Congress and administrative rules is quite familiar, but it turns out that’s another irregular path.

There are a host of these, but the main one that’s been missed is this purchase of submission because sometimes the government, when it cannot get something through Congress, or doesn’t think it will, and it cannot get an administrative rule because it might be unconstitutional or politically unpalatable, it then will turn to another irregular path, not an agency rule that purports to bind, but rather a condition on the receipt of money. And what’s interesting about these conditions is they do not purport to bind. In fact, the whole point is they’re not binding. They don’t really restrict one, so theory goes because they’re just conditions on the money and that liberates the government to do all sorts of things that never otherwise could have done, things that would have been impossible even to administrative power. So it’s an additional irregular path and therefore profoundly dangerous. Because if you think about this as evasion as a cascade of evasions, you first evade the Constitution through administrative power, and then you evade it yet again through purchasing submission. So it’s moving ever further away from law.

Richard Reinsch (06:24):

Listening to you now, as I was reading this book, I thought I was reading this book with your other book, Is Administrative Law Unlawful?, in mind. And you’ve been talking about this. There you argued, you weren’t so much concerned with constitutional law regarding the administrative state, what you wanted to show is how the administrative state operates outside the bounds of constitutional norms, basic structural powers and responsibilities and accountability. And as I read this book, I thought, well, he’s done something like that here, too.

Philip Hamburger (07:00):

I beg to differ.

Richard Reinsch (07:01):

Yes, sure.

Philip Hamburger (07:02):

I actually, in the administrative law book, I actually was making a constitutional argument, but it wasn’t the conventional one in case of the doctrines. But rather by showing that there was a danger out there of this irregular power, which was familiar to the framers of the constitution and so we shouldn’t assume that administrative law is something new and unattended to by the constitution. Here, there is some parallel you’re absolutely right, that this is similarly a study of an irregular path of power, but this was actually much worse. If you thought administrative law was bad, worry about conditions. And if you think administrative power is actually okay, just need little trimming at the edges, you shouldn’t be complacent about the next irregular pathway, conditions, because this subverts our rights and undermines our self-governance in a way that administrative power does not. You at least had administrative rule, as published, we all know what it is. And it goes through a process. Conditions don’t have to do that. And many of them are private.

Richard Reinsch (08:10):

Help us help listeners understand maybe more concretely what you’re describing here. What are prominent instances of conditions that the government uses?

Philip Hamburger (08:20):

Well, Joe Biden, our president, helps people understand this. And so in that sense, the book is unexpectedly relevant. When the administration tells states, we’re going to give you money for Medicaid and Medicare, but only if you make certain requirements regarding vaccines, what they’re doing is regulating the states and the people within the states through purchase of compliance. When the government gives money to let’s say, Columbia University for research and says, here’s money for research, but the way, though, you have to first assure us that you have institutional review boards, which will censor what one can read and what one can say and what one can publish. What it’s doing is it’s paying these institutions to regulate people like me. It’s a regulatory condition and it’s doubly bad because it works for a private institution. So what we have are a lot of, not just unconstitutional conditions, that violate rights, but conditions that are regulatory, that are substitutes for the command of a statute or the command of an administrative rule.

The book actually begins with an explanation of how it happened, an after dinner conversation. I was having a very nice dinner with wonderful friends. And after dinner I offered the foolish question: ‘Why haven’t you published an article that you were circulating in draft?’ And indeed it circulated like samizdat only in manuscript, quite widely read, but not published. He said, oh, I can’t publish it. The IRB won’t let me.

Richard Reinsch (09:34):

As I was reading your book, one thing that comes to mind is sort of a prior choice, a decision that’s been made that the spending power, that there is sort of a standalone spending power the federal government possesses, and can do whatever it wants, like build a sidewalk for fitness reasons in towns across America, fund that, or be heavily involved in education or things like that, where you say, well, why does the federal government have this power? Well, as I was taught in law school, it’s the spending power. And how do you think about that problem?

Philip Hamburger (10:11):

It’s funny. I was also taught that, but the difficulty is to find that spending power, I thumbed through the constitution, where is it? Is it on page one, page two? You read through it. It was found there. Article one, section eight gives the power to lay and collect taxes, duties and so forth. And there’s a limit on that power to collect taxes, which, and that limit is you can collect these taxes to pay the debts and provide the common defense, general welfare of the United States. What we’ve done is we’ve replaced the comma after exercises is an inserted, a semi-colon. And in fact, Gouverneur Morris drafting, the constitution tried to do this. And then the convention said, no, no, no, no. This is one clause. You’re not splitting into two, but by interpretation, we’ve created a general spending power. So where it’s spending had to go through individual enumerated powers and that’s what’s limited in subject matter. It now just can be done, is not limited. And so conditions on spending are unlimited, which means you can regulate through conditions in ways that you could not regulate even with the expense of reading of congressional power. It gets worse than this, of course, because the so-called spending power or the limit on the taxing power, has to be for the common defense, general welfare of the United States, which if it means anything is, it doesn’t go to or for the states. So in fact, all the spending and aid to the states is unconstitutional, but the courts have just ignored this. And with that spending to and for the states, a lot can be extorted from them.

Richard Reinsch (11:49):

And then you couple that with, as I was thinking about it, the ability of the federal government to borrow unlimited amounts of money, and also having vast revenue as well, coming in. It’s an unlimited source of power. And there’s also this aspect of, John Diulio has written about this acronym called, BIGPAP and the idea being that the federal government is able to use states, nonprofits, all sorts of other agencies to in effect, regulate the country without actually doing it itself, but doing it through partnerships. And I was reading your book, I thought, well, so Professor Hamburger has uncovered yet another, is bringing to our attention in a dramatic way, this new mode of power. So how does one go about, I’m just sort of thinking practically here, because you say these are sort of, I mean, one is old Medicare. I mean, that’s obvious but constraints on Medicare, but you said these are a lot of just almost private deals because I read it and I thought, well, this is just another mode of administrative power.

Philip Hamburger (12:54):

It’s done by the same people, it’s usually done by the agencies, but the agencies don’t just have administrative power, which the power to make rules or edicts or expectations that functions rules. They also can dangle some money in front of you or a privilege like licensing and then say, but we’re only giving this to you after you’ve done something, X, Y, or Z, seeking so-called assurances about what you’ve done. And that’s the mode of control that’s quite profound. They can do almost anything that way. So an agency may pass regulation, continues conditions. So HHS has regulations stipulating the conditions on which universities get research funding and requires establishment of review boards and the like, but much of the conditioning that’s regulatory comes in site visits, private conversations, or just letters. Because these are private deals essentially, all sorts of bad things happen. For one thing, you don’t know whom it applies because only those who consent are subject to it. So in really rare cases, do we know who has submitted to the conditions. You don’t know who has, who hasn’t. What’s more, additional conditions are added in an informal way. And when there’s no way of knowing what these are, even within one’s own institution, because these things are often kept private even within the effected institutions. And this happens to banks and universities. And if it happens to banks and universities, which have so much power, what’s the fate of individual?

Richard Reinsch (14:28):

As I was also thinking about your book, you think about the administrative state and and it has sort of official legal channels by which it’s supposed to operate in terms of proposing a rule and debating it, implementing it. But then increasingly we know it operates outside of those rules and does a lot of unofficial things. Like say a Dear colleague letter to every university in America, if you want federal funding, you will basically wipe away protections for those accused of sexual assault, longstanding protections. So is that unofficial? Do you see that as, is that conditioning as well?

Philip Hamburger (15:04):

That’s right. And Title IX has the sex discrimination condition on federal funds to educational institutions. But of course what’s happened is then that gets interpreted in semiformal and then less formal ways. And of course, ultimately it may depend on private conversations. And just to give you an example, Congress hands off regulatory power to the Securities Exchange Commission, hands off power to private regulatory groups and the like, or the exchanges. And they in turn regulate their members, but they regulate their members in ways that are overseen by the SEC. So you’ve essentially privatized regulation under the oversight of the federal government. Now this is highly advantageous, of course, for the federal government. For one thing, they say, we’re not forcing you to do anything, it’s just a private matter. So they can escape any accountability, again, much of it often for that to be private in conversation. And then of course, when rights are violated and there has to be an adjudication, well, there’s no violation of rights, it was just a private organization so no state action. And what’s more, when this adjudication, not only do you not get a jury, you don’t even get an administrative hearing because these are private institutions that can handle it as they wish. So this is complete degradation of our regular system of government through statutes and court proceedings to just private little inquisitorial tribunals and Title IX tribunals are a good example of this.

Richard Reinsch (16:41):

Thinking about, you said individual rights. In your research, what kept troubling you about this mode of governance?

Philip Hamburger (16:51):

I got into this, the book actually begins with an explanation of how it happened. An after dinner conversation, I was having a very nice dinner with wonderful friends. And after dinner I made offer the foolish question. Why haven’t you published an article that you were circulating in draft? And indeed it circulated like samizdat only in manuscript, quite widely read, but not published. He said, oh, I can’t publish it. The IRB won’t let me. I said, what? That sounds like the 17th century inquisition. No, no, no, it’s real. I can’t publish it. I could publish it, but they’d never allow me to publish again if I did. And then his wife, a cited geneticist and one of the best in the country said, yes, I lose several children each year this way, because under HIPAA, I can’t consult the tissue banks. And whatever you think about the use of that information, it’s quite sobering that someone with a scientific endeavor cannot consult information in these circumstances. So what was going on here? And I learned it was IRBs. I never heard of them before.

Richard Reinsch (17:58):

Yeah, talk about this.

Philip Hamburger (17:59):

Well, I never knew what an IRB was. I thought it was bizarre. And for three years, I refused to do anything about it though I was upset because of course I didn’t want to do administrative law. I didn’t want to do conditions. That’s boring. But it turned out to be ever more interesting. And the final straw was when a friend of mine went and I went and talked to the local ACLU and they said, oh yeah, we know all about this. Indeed, they knew the law beautifully, but they said they weren’t really against it. They weren’t against the censorship. And what institutional review boards, should I talk about that?

Richard Reinsch (18:32):

Please do.

Philip Hamburger (18:34):

So most of you have never heard of these things. They’re the ones that introduced the oversight, sensitivity about the speech into campuses ages ago. If I want to do research and want federal funding, I can’t get the money directly, instead under HHS guidelines, I have to get the money to the institution. And that’s because institutions are more easily controlled and institutions then gets the money only if it has made an assurance to the federal government that has established a sort of ethical review of research, institutional review boards. Now that sounds all very jolly, that can’t be bad, but what these institutional review boards are mostly concerned with is speech. They’re worried about insensitive speech or harmful speech to the people who study. For example, if you’re interviewing somebody, if I were to interview a member of the KKK, I don’t really care that much about the harm to the individual, but the IRB will. And I can’t ask questions that might cause not only legal and financial loss to the individual, but also might cause stress. And so then also one can’t publish details that the IRB worries might be harmful individuals. The net result of course, is the complete deadening of research and it’s worse in medicine.

So in medicine, when there’s actually a death toll to this because when you discourage research, and by the way, you particularly discouraged research on minorities, one of the goals of IRBs, the net result is of course you don’t have information to save lives. I give you one example just to make this real. Dr. Pronovost of Johns Hopkins, I think it was 2006, did a study of Michigan intensive care units of catheters inserted into the heart. These procedures are necessary to save the life of the patient, but there used to be something like a two-thirds death rate because of infection. So what Pronovost did, went to the intensive care units in Michigan and said, let’s ask the doctors before they do it to wash their hands. And lo and behold, when they washed their hands, they saved, I think 1500 lives just in the course of the study. And then it was shut down by HHS because it did not have sufficient approval from the institutional review board. Nonetheless, by miracle, it gets published. And the publication of this, because of information about keeping clean, how important it is to these operations, has saved 17,000 lives a year in the United States alone. And what this tells you is that the suppression of information, the institutional review boards, even if it only suppresses a few important studies a year, quickly adds up to hundreds of thousands, if not millions of lives lost. That’s sobering. But this is the blessing of conditions. You can suppress speech without accountability.

Richard Reinsch (21:16):

Where have, in your research, where the federal courts been on conditions? From your book, I take it they’ve largely stood down. How should they step back up?

Philip Hamburger (21:32):

Well, so the book, although it’s at a broad level about the problem and it’s near political theory, much of it is also technically about law and actually ends the checklist for lawyers and judges. There are things that judges can do. And I think the first step is just to recognize the problem. Once it recognizes the seriousness of the problem, I think there will be a response. The other thing that’s important to do here is to recognize that actually there isn’t much precedent barring the development of doctrine or recognizing the constitution as to say. There are precedents, occasional precedents protecting freedom of speech, for example, but they’re fairly mild. The precedents have very little to say actually about, for example, regulatory conditions. The courts just haven’t recognized the problem. So I think one can go to the courts and ask them to work on this difficulty without even having to undo precedent. Now that’s not entirely true, there are areas where they will have to reconsider precedence, but much of it is just unexplored territory. It’s terra incognita, which is sad. Isn’t it strange, we have a method of government that’s now been in place for at least 70 years, perhaps a little more, but it’s been widespread since the 1960s and we don’t see it.

Richard Reinsch (22:56):

And I was going to ask you is, so when did this really kick into high gear?

Philip Hamburger (23:02):

Right. Probably, I’d say the sixties and seventies. Yes. But also in the nineties and since then, where the amount of money spent on the states is massive.

Richard Reinsch (23:05):

Yeah. You note that in the beginning, that 30, for most states, it’s about 30% of their budget comes from the federal government. And I’ve read previously is state bureaucracies have grown, state employees have grown. Federal government employees really haven’t I’ve read, which kind of speaks to this phenomenon, I think, of indirect government.

Philip Hamburger (23:33):

Part of it also is that we think of conditions to the states is violating rights. They also regulate state policy in violation of so-called commandeering doctrine. But they don’t just regulate state policy, they actually reshaped state governance, which I don’t think anyone’s really paid attention to other than Martha Derthick in the 1970s. She noted it briefly. Grants to the states when used to convert elected power to administrative power because the federal agencies like to deal with state agencies. They don’t want to deal with state elected officials. And so they give money on the condition, for example, that the power once exercised by selectmen in Massachusetts towns gets handed over to administrators. And there’s a class issue of course, because it means taking power out of folks in a community who may not have college degrees and giving the power to people in Boston who are distanced from the communities, but have PhDs.

Richard Reinsch (24:31):

Yeah. Oh yeah. In government administration or something. Thinking about this, also you hit too that maybe the New Left was onto something and the protection of privileges in the late sixties, which I thought that was an interesting argument and made sense in light of the book.

Philip Hamburger (24:50):

I don’t want to praise the New Left generally, but Charles Reich, Charles Reich was brilliant and wrote a piece called “The New Property.”

Richard Reinsch (25:02):

Right.

Philip Hamburger (25:02):

And he discusses this problem very accurately and candidly. And he’s worried about it, but he phrases it in terms of property, not power. So if he were here in our conversation with us is I would simply beg him to say, it’s not really new property, it’s a new power. He recognizes that the government is buying its way into regulation and buying its way to adjudication of any process. And he worries about this, but because he’s so focused on the new property, the property that consists of government benefits and the like, he didn’t address the question of power, but he sure was on to it and I must say if there’s any prior scholarship that I thought was illuminating, it was his. It was more on point than I think anything else I’ve read.

Richard Reinsch (25:53):

That’s interesting because I’ve always seen it as sort of the turning and progressive government in America or the attempt to legitimate it more and more. So I’ve always sort of recoiled from it. So I thought that was an interesting part in your book. Yeah.

Philip Hamburger (26:06):

Right. So I would not agree with him about the analysis of the new property. I think actually that did a lot of damage to, for example, rights of due process rights. I think that endeavor to get processed for grant, for the denials of, let’s say welfare ended up degrading, diminishing due process across the board, including constraints illustrated, for example, by Hamdan vs Rumsfeld where we now can imprison people without anything more than a neutral adjudicator deciding it, no jury, no judge, et cetera. And that’s a product of this is a new property as well and the attachment of due process to that. But at the same time, I want to give him credit where it’s due. He did understand that there were risks in the purchasing compliance.

To the degree conditions are the primary means of privatizing control, privatizing regulation by funneling it through employers, universities, banks, and so forth. There’s a very great danger that all institutions will end up being aligned under centralized control…

Richard Reinsch (26:53):

More sticky question. I take it you don’t think all conditions are unconstitutional.

Philip Hamburger (26:58):

No, most conditions…

Richard Reinsch (27:00):

So how in thinking about the government extending conditions on privileges or attaching them to privileges, how do you sort of work out an analysis like this, it’s something like plea bargaining. What do you think about that?

Philip Hamburger (27:11):

Right. So most government conditions such as we’ll give you money for an airplane on the condition that it flies are perfectly reasonable and lawful. And the book goes out of its way to emphasize is not a complaint about conditions on the whole. I do see contracts law, and I know the value of conditions. But on the margins, there are conditions that are being used for less innocent purposes and to regulate and deprive people of rights, to control the states and so forth. And that’s what’s very dangerous. So for example, Cass Sunstein discussed nudges. I can’t say that I think most people like being nudged feels more like a push usually, but that’s not necessarily unconstitutional. What becomes problematic is when the conditions deprive one of rights or it’s used as a mode of regulation. And plea bargains, let’s talk about that. Is it 95, 97% of criminal cases end in plea bargains, at least at the federal level. It’s prodigious and many of those conditions are not unreasonable, but they can overstep the line. And it’s an interesting delicate question. So for example, suppose you’re asked to give up your right to a jury trial. Well, that’s not necessarily unconstitutional, the jury trial is not mandatory. You can agree to give it up voluntarily or when you’re given something. But what if you’re asked to give up your jury trial in future cases, that would be different. That’s an attempt to restrict your exercise to the right in the future. More commonly, more typical sort of condition would be to require one to provide testimony or not exercise ones right against self-incrimination. If that extends too far into the future, then I think when runs into constitutional problems, but if it’s confined to the case itself, there needn’t to be a problem. So one has to parse these things in a fairly careful way to get there. What I found most interesting-

Richard Reinsch (29:23):

And I’m ignorant here, are you saying federal prosecutors are frequently-

Philip Hamburger (29:27):

I’m talking about federal prosecutors.

Richard Reinsch (29:29):

Federal prosecutors are frequently reaching beyond the case at hand to future cases with defendants.

Philip Hamburger (29:32):

I don’t know how frequently it happens. It just happens occasionally, but sometimes it does happen. And then one has to be careful. When we get to the free speech conditions, I think there’s something important to be observed in the word “abridge.” The first amendment is actually carefully worded. Congress should make no law abridging the freedom of speech or of the press. And that word, abridging actually is helpful because when Congress passes a statute that restricts what you can say, one might have a difficult question as to whether or not the law abridges the freedom of speech, but when it or an agency using money on the condition that you similarly restrict your speech, it’s actually much easier because if the condition goes further than what is constitutionally allowed in a direct restraint you know that it’s abridging the freedom of speech, because the word abridging suggests you’re going a little bit further. And so we actually have some clarity in the speech cases. That isn’t always true in some of the Bill of Rights.

Richard Reinsch (30:36):

So for example, you don’t have to pay taxes, you’re a non-profit, but with that comes all sorts of restrictions on your speech.

Philip Hamburger (30:47):

Right. And so the limitations on nonprofits, not to get involved in politics, political speech and elections or in lobbying. As we know, I’ve written on this, and it actually, it’s first proposed by Hiram Evans, the rather unlovely Imperial Wizard of Ku Klux Klan, and it’s a way of silencing relatively Orthodox, IE Catholic institutions even if that’s the risk of silencing others. This is a constraint on speech and on political speech. We would’ve thought we’d all be concerned about that, but we’re told reassuringly that no, no, no, it’s just a condition on a privilege, that of tax exemption. But it’s really just saying, you’re going to get different tax rate depending on whether you silence yourself. And once you understand it that way, it’s quite clear this is actually a penalty on speech. But even if you just understand it as a condition, and by the way I say that, because lowered taxes and receiving money are actually quite different. You have a choice as to whether or not you receive money, not as to whether or not you’re on the tax system. But even if you just do this as a condition on a privilege, and there’s no sort of coercion here, this is a condition that one could never impose directly. The only reason it’s been accepted is because it’s thrown in as a condition on a privilege. And that shows how these are used to evade the first amendment.

Richard Reinsch (32:16):

And I take it. I mean, there is a level of political theory, there’s this sort of assumption here working that rights themselves, property is something that the government really has control of and doles out. So I’m not violating. Like to the nonprofit, it’s like, well, you’re getting this tax deference, aren’t we generous to you. And it’s like, well, why did you assume that it was yours to begin with? I mean, that’s kind of the way I’ve always looked at it.

Philip Hamburger (32:46):

Right. So this gets back to the debates between Pufendorf and Locke. Pufendorf understood the contract proceeded government, but he thought that property was the product of agreement. And so from that perspective, it wasn’t clear that property necessarily preceded government, could have followed from the government, in which case property is dependent on government. Marcez had a certain priority of government before property and property is really protected. John Locke, so he’s often thought to be responding to Hobbes, is also responding to Pufendorf quietly. And John Locke offers a different account of the development of property. It’s the so-called labor theory of property, put labor into something then it becomes yours. Why would he do this? If you take this as a grand theory of property, it doesn’t explain all property. And so therefore seemed rather weak, but he wasn’t trying to explain all property. He was just trying to show that some property, institutional property, preexists government. And that’s crucial because property is his metaphor, if you will, for all liberty, it’s something that’s yours and that proceeds government. And so that conversation between Pufendorf and Locke, although I think often missed and misunderstood these days is very relevant here, property proceeds government. And by the way, notice if the IRS could treat any sort of tax exemption as largess to which you can attach conditions depriving you of your rights, notice it can just give you a hundred percent taxation. And then when it lets you keep 1%, he says, but of course, on the condition that you could subvert all rights instantly this way. So I don’t think it makes sense.

Richard Reinsch (34:34):

So the progressive mode of government has to dispense then with, I think that was a lock-in position necessarily if it’s going to be able to move money around and engage in the transfer payments and the regulatory system that it needs to. So it sort of has to disestablish that mode of thinking. You find in the book, I think that Americans have largely accepted this, but maybe they need to be reminded of what they’ve forgotten.

Philip Hamburger (35:01):

Well, I think what’s happened is that money has appealed to people, as always. And the folks who get money, don’t worry too much about the conditions. But as they pile up, there are profound costs, not only to the individuals and institutions, but also to the whole nature of our society, where we’re turning into a society in which everything can be bought. And I think actually a lot of progressives understand that this is dangerous. A lot of progressives regret commodification as they would put it. And what we’ve done is commodified our government. And there is something which I would have thought people from many different perspectives can agree on that. This is somewhat worrisome. Can I add a thought about the work, just how dangerous this is?

Philip Hamburger (35:48):

To the degree conditions are the primary means of privatizing control, privatizing regulation by funneling it through employers, universities, banks, and so forth. There’s a very great danger that all institutions will end up being aligned under centralized control and I discuss this towards the end of the book. The danger is that if federal money and policy runs through the states, runs through the banks, runs through the universities, runs even through churches who tried to silence their members to avoid violating 501(c)(3), we end up in the system in which all of institutions are aligned. It used to be because institutions were not aligned in this way, either those institutions were different and because regions were different, you could find some sort of solace, some safety, if not at one level of the system than in another one type of institution or another. If you don’t fit into the banks, you fit into the universities. If you don’t put in there, you can fit in, let’s say in the state government. That’s no longer true because they’re all being aligned in their policies, mostly through conditions also to some degree through direct regulation. And that ultimately is very, very dangerous.

Richard Reinsch (37:11):

Just to go back to the dear colleague letter to higher education. I mean, did any institutions receiving federal funds object to that?

Philip Hamburger (37:17):

I don’t know, but there certainly wasn’t mass objection of that.

They’re corrupting us with our own money. They’re bankrupting us by dangling in front of us things we can’t afford with conditions that will destroy our freedom.

Richard Reinsch (37:21):

Yeah.

Philip Hamburger (37:24):

And notice, it’s one administrator to another. They’re talking to their own people.

Richard Reinsch (37:29):

And realizing that their institution would fall apart without federal funds.

Philip Hamburger (37:34):

That’s right. But they fail to realize that their institutions are going to be rendered impotent and unfree and utterly, utterly irrelevant if they accept the conditions.

Richard Reinsch (37:46):

I can think of, since that letter was issued, a number of private, higher education institutions coming into being, which made it very clear, they would never take federal funds, but those are a few.

Philip Hamburger (37:58):

Very, very few.

Richard Reinsch (37:59):

A scattered few.

Philip Hamburger (38:01):

Right. Hillsdale doesn’t take federal funds, but Hillsdale is a lonely voice.

Richard Reinsch (38:06):

And I think a lot of these new class, schools that are coming online, they’re very clear even in states like where I’m at in Indiana that have very widespread voucher programs, they will take none of that money because they’re worried about conditions that come with it. Is this just though the way of, I mean, I’m thinking about it. I mean, there is just sort of a, they’re offering people something, they’re going to take it.

Philip Hamburger (38:28):

Yes. But they’re corrupting us with our own money. They’re bankrupting us by dangling in front of us things we can’t afford with conditions that will destroy our freedom.

Richard Reinsch (38:39):

And as you think about this, what are the low hanging fruit that could be picked here, the fruit, to try and peel away this mode of governance?

Philip Hamburger (38:50):

So I think it’s already happening. The states increasingly are being offered money on the condition they submit to conditions, dictating their policies. Certainly any connection with vaccines from like this is happening, right. Or the tax reduction earlier this year, the states were told you could have federal money, but you’re not allowed to reduce your taxes.

Richard Reinsch (39:13):

Yes.

Philip Hamburger (39:14):

So this is problematic on many grounds. So one thing it’s a mode of regulation through conditions, which shouldn’t be allowed. For another, it’s the spending into the states, is unlawful. But at the very least, there’s a commandeering doctrine, which really just reflects the structure of our constitution. Now the judges will say, commandeering, that’s about the relationship between two separate sovereigns. Not really. They got that wrong. It’s really about our right of localized self-government, it’s about freedom, not just structure. And the structure depends upon that freedom of localized self-government, so it’s really much more threatening than they think.

And although the term commandeering suggests that there has to be coercion or gun to the head, that’s what the Supreme Court’s apt to say, that’s actually the standard for duress in contract law, actually 19th century contract law, not even contemporary contract law. And structural problems, which is what this is, do not need any coercion. You can corrupt the construction of the constitution with money as well as by force. So I think we’re going to see arguments along these lines, arguments, I hope I can draw from the book that in fact commandeering doctrine is grossly misunderstood by the court and that these demands on the states not to lower the taxes or to impose vaccines, the like are unconstitutional interferences with separate sovereignties and with our right of localized self-government. So that’s, I think, would be an opening wedge.

Richard Reinsch (40:40):

There’s also something, as I’m listening to you, and I’m thinking, I think it was with regard to the states is sort of the increased ideological competition over policies and which policies lead to growth and flourishing, economic flourishing in particular. And it seems to be, you’re also getting this realization amongst both sets of governing elites of how they want to live. And red states are making decisions based on that as to what money they’ll take from the federal government. Witness red states, like Florida, not taking money regarding unemployment benefits because they think it actually would lead to a decreased labor market, depressed labor market. So already it’s almost like politics, the return of politics could also help here.

Philip Hamburger (41:22):

Possibly. Anything that helps, I think, would be welcome. My fear always has been, we’ll be woken, not by ideas, not by ideology, but by calamity. And it’s a stiff competition. Will it be in foreign matters or domestic matters that our collapsed will get our attention and will it then be too late? I don’t know.

Richard Reinsch (41:45):

Philip, maybe we’ll end on that note.

Philip Hamburger (41:48):

Thank you for giving me an optimistic ending.

Richard Reinsch (41:50):

We’ve been talking with Philip Hamburger, author of the new book, Purchasing Submission, I hope it has the impact all of your other books have had. Thank you for discussing it with us today.

Philip Hamburger (42:04):

You’re very kind. Good talking with you. Thank you so much.

Understanding Black Lives Matter Oct 01, 2021

Richard Reinsch (00:18):

Welcome to Liberty Law Talk, I’m Richard Reinsch. Today we’re talking with Mike Gonzalez about his new book, BLM: The Making of a New Marxist Revolution. Mike Gonzalez, a senior fellow at the Heritage Foundation’s Allison Center for Foreign Policy. He’s had 20 years of experience as a journalist. He’s been a speechwriter in the Bush administration, and he writes widely on national identity, diversity, multiculturalism, nationalism, and related issues. Mike is also a regular contributor to Law & Liberty. It’s his first time on Liberty Law Talk, we’re glad to have you on the program, Mike.

Mike Gonzalez (00:53):

The pleasure is all mine, Richard. Thank you very much for having me on, it’s an honor.

Richard Reinsch (00:57):

So Mike, as you say in the book a couple of times, and I’ll state it here, the book is about Black Lives Matter and is taking you inside the organization, who funds it, what it believes, what its objectives and purposes are, who composes it, who leads it. But in all of that, you are not, and certainly the purpose of this interview is not to dispute the idea that black lives matter, the sentiment or the statement. We are talking about the organization and suite of organizations or allies who are a part of Black Lives Matter, the movement. And so with that said, what are the goals of Black Lives Matter? Or what is it built on?

Mike Gonzalez (01:44):

Let me actually first make a comment on what you just said, because I believe there are four things here that are really quite distinct. The first one is the concept. Black lives matter. The concept is unimpeachable and I embrace the concept and I actually never say “All lives matter,” I say “Black lives matter.” I’m very proud to say that. And that is because black Americans have gone through incredible hardships that no other American has gone through. I don’t need to… slavery, Jim Crow, segregation, et cetera, and incredible discrimination. So “Black lives matter” is a great slogan. Then there’s the movement, and I’m not sure what that means.

I think that means people who turned out to the demonstrations and the marches and were peaceful about it, or who embraced the concept. Then they are the organizations. The organizations are primarily as you very well put, it’s a suite of organizations, but there are two main ones. If you Google Black Lives Matter, Google sends you to the Black Lives Matter Global Network Foundation, BLMGNF. That is the premier, the flagship organization, that is itself the coalition. And then there’s the Movement for Black Lives, which is yet another coalition, but very important. It was set up right after Ferguson. And then fourth, there are the founders of these organizations and the founders are all Marxists. They say they’re Marxist, it’s not me saying they’re Marxist.

And then we go into your question, what are their goals? Well, if you listen to the founders and if the journalists listen to the founders, they have been very candid. Alicia Garza, one of the three founders said very clearly to a group of Maine Marxists in 2019. So not that long ago, that what she wanted was “the dismantling of the organizing principle of this society.” Quote unquote. That what she wanted was to change how we’re organized as a society. So for those listening at home, that means not just things that are racist in America, it is everything. It’s your son’s little league game, it’s your daughter’s volleyball team, it is your book club. It’s everything, it’s American lives, it’s our way of life.

And they’re very clear that they’re Marxist. Patrisse Cullors, a second, also a very important former executive director of BLMGNF, and also a founder of Black Lives Matter. She said very clearly, and she states it all the time that her and Alicia Garza are Marxist, and she actually uses the term trained Marxist. And this is a very recent, there’s a very good reason and why she says trained, that’s because she was recruited by Eric Mann. Now that is his word. Eric Mann said he recruited Patrisse Cullors. Eric Mann is a former member of the Weather Underground. That was an FBI designated terrorist group in the ’60s and ’70s. A lot of the members spent time in prison because they tried to use terrorist tactics to bring revolution to America. Eric Mann spent time in prison. And then he set up the Labor Community Strategy Center in Los Angeles, which recruited Patrisse Cullors and trained her in Marxism. Alicia Garza too, was trained in Marxism-Leninism, she has said this herself.

So that is who they are and what they want. They hate capitalism. They say that capitalism is racist and needs to be destroyed and smashed, and they like Marxism-Leninism. So it’s the organizations and the founders, not the concept to which I subscribe.

Richard Reinsch (05:19):

Talk about the ideological structure here. A term we hear a lot, critical race theory, we also hear the term anti-racism. Talk in depth about critical race theory, what it is, where it comes from.

Mike Gonzalez (05:36):

So critical race theory is really the academic discipline behind Black Lives Matter. It emerges in law schools in America in the late ’70s, and then really gathers strength in the ’80s. It comes from critical legal theory or critical legal studies, which postulated that American racism was… That the systems of oppression, that the inequality was written into the law, by people with money, by the powerful who wanted to perpetuate their power and they wanted to keep it, and they wrote the American laws to do that. Now, black professors and black law students attending these conferences of critical legal theorists agreed with all that, but then they added, “but all these people are white. And what this is, is just racism. And you’re refusing to deal with that.” So they had incredible arguments, and in 1989, they left, they split, they created their own organization called critical race theory, which is the first time that that term is used. It was at a convent outside Madison, Wisconsin. The organizer was Kimberle Crenshaw, a law professor.

Richard Reinsch (06:49):

Did you say a convent?

Mike Gonzalez (06:49):

A convent.

Richard Reinsch (06:52):

Okay.

Mike Gonzalez (06:54):

A former convent outside of Madison, Wisconsin. In fact, just a few years later, Richard Delgado, one of the godfathers of CRT, of critical race theory gave an interview in which he said that they were all there, these two dozen law professors, and looking at the crucifixes and looking at the stained glass windows. And he said, “It was an odd place for a bunch of Marxists.” This is Richard Delgado. Indeed, it was an odd place for a bunch of Marxists.

So what critical race theory believes is that racism is not individual, it’s not an individual sin that people commit when they refuse to follow Christ’s dictum to love thy neighbor, when they refuse to love their neighbor because of their race. According to critical race theories, it’s nothing to do with an individual, individual practice or individual beliefs or individual sin. It’s a systemic thing that all of American society is suffused with racism, and has been so since the founding. And then they, these law professors kind of took over or in the ’90s, kind of became dominant in the civil rights domain, within the law schools. They evicted their white colleagues because they… the critical legal theorists, they evicted them and they became dominant. But they had very limited impact on public policy for about 20 years. And then in the last 10 years or so, they begin to really grow in K-12.

They begin to get its grips on education, primary education, secondary education, but then it really explodes with 2020, with Black Lives Matter, which is the subject of my book, BLM: The Making of a New Marxist Revolution. And then it enters all aspects of our lives. This is why we’re all talking about critical race, why I’m traveling the country from coast to coast, I’ve been to 15 cities in the last three months. I’ll be in another 12 cities in the next three months talking about critical race theory, because Americas are up in arms about what is being taught to their children. Now I should add parenthetically, and maybe you want to ask me more about that. That critical legal theory itself is an outgrowth of critical theory, which was born in Germany, in the ’20s and ’30s. And was again, a Marxist group of scholars who believed that they had to criticize and really ridicule all institutions in society, in order to introduce the idea of revolution. So that in a nutshell, the intellectual pedigree of these disciplines, critical race theory, critical legal theory, and critical theory.

Richard Reinsch (09:31):

Critical theory come to this country in the 1930s in the forms of intellectuals practicing it. And when you say it’s criticizing every aspect of society, I assume that’s according to Marxism.

Mike Gonzalez (09:45):

Yeah, no, they-

Richard Reinsch (09:46):

And one of the things they want to do, it seems from what I’ve read is, they want to take things that Americans take for granted and enjoy like consumer behavior and ridicule that.

Mike Gonzalez (09:58):

Yeah. They want to denigrate all aspects of our lives. They sit there, they’re very conflicted. And in the early ’20s, they realize that what Marks and Engels had promised, which was revolutions everywhere, the working class, the proletariat rising and overthrowing the capital as the bourgeoisie, it’s just not happening. It failed in Germany, failed in Italy. It only succeeds in a backwater place called Russia, and it succeeds very temporarily in Hungary. So then they begin to ask themselves, all these communists, “Why?” And they ask them in Germany and Italy especially, where revolutions fail in 1919. And they’ll come up with the same answer, whether it’s Antonio Gramsci in Italy or Maxwell Horkheimer and the Frankfurt School in Germany. And that is, they realize that the worker has embraced religion, has embraced God, has embraced the family, has embraced capitalism and has embraced the nation-state. He’s religious, likes his family and he’s patriotic. And so they think that the worker has false consciousness.

So as you rightly put it, because of the Third Reich, they come here, Columbia Teachers College offers them a place where they can gather and work. And so people like Maxwell Horkheimer the director of the Institute. We call it the Frankfurt School, but it’s really called the Institute for Social Research. It was first of all going to be called the Institute for Marxism, then they realized that that was too upfront. They really tried to hide their Marxism, but they’re Marxists. If you read Horkheimer and for my sins I do, you realize that they themselves say it, they admired the Soviet Union. So they come to America and they hate America. They hate America even more than they hated the European worker. They think this place that offers them this salvation… But they’re very curious about America, but at the same time, they say, “Well, the Americans are a bunch of boobs. They go to their movies, they’re happy. They have their Hi-Fi sets, and they have this split level homes.” I’m quoting Horkheimer there. And Horkheimer before he dies, by the way, he gives this interview in which he says, “Look, capitalism is better at producing material reward. The material needs of the individual are better taken care of by capitalism. And that’s what makes capitalism so dangerous because it prevents revolution.” And so that is really their work, is to denigrate all the institutions, the family, capitalist system, which they think is irrational, even the nation-state in some ways. They want to get all these out of the way.

Richard Reinsch (12:38):

It’s critical legal theory itself, I think as you were alluding to. Kind of a straight Marxist critique of the law rooting it in power and wealth, and it’s on behalf of that class, the capitalist class that our laws have been written and enforced. And critical race theory changes that in many respects, not changes it, but inserts race as the explicit motivation.

Mike Gonzalez (13:03):

Yeah. Right.

Richard Reinsch (13:03):

And that’s what we’re dealing with now is, race becomes the prism through which we understand all of American life and institutions. Trying to also get a grip on the ideology behind BLM is, to my mind what they do with history. In the sense of, it’s just a battle of narratives. And heard Nikole Hannah-Jones say this about the founding, “We are contesting the dominant narrative with new facts.” But the facts aren’t really facts, they’re interpretive methods to sort of change thinking. So history itself becomes very plastic.

Mike Gonzalez (13:38):

Yeah, no. They try to undo, and I’m going to paraphrase Aristotle here. Aristotle had this great maxim that says that, “The only thing that’s denied to the gods is to undo what has been done.” Well, they tried to undo that, they tried to do what has been denied to the gods. They tried to say, “No, these facts didn’t happen. Or these facts are going to be interpreted in this other way.” Another old maxim, “He who controls the past controls the future.” So they tried to reinvent history along their lines alone. But when they do that, you mention Nikole Hannah-Jones, they just plainly lie.

So when Nikole Hannah-Jones says, “well, the revolution was fought because the colonist feared that the mother country Britain was going to take away the institution of slavery.” That is just an outright lie. She gets that from a court decision, the Somerset decision in London, in the ’70s. In which a slave who had been brought by an American planter to London, is found not to be a slave. But that’s just a minuscule, that did not matter at all. That’s not the reason… It came after the 1760s with John Adams, called The Revolution of the Mind. By that time the wheels are going. So Nikole Hannah-Jones, is a complete fabrication, that this is what motivated the revolution. And yet they say it. The New York Times had to actually retract that part because it was so embarrassing. But you’re quite right when you talk about critical legal theory.

What the critical theorists did in the ’60s, is that they strongly influenced the New Left, cap N, cap L, especially Herbert Marcuse. And out of that ferment, grew critical legal theory. In fact, the godfather of critical legal theory, Duncan Kennedy said in an essay quote, “I was very influenced from the beginning by the two strands of confidential thought, the critical theory, the Western Marxist and post Marxist strand, which include Herbert Marcuse” et cetera. So he is a, strongly Duncan Kennedy and the other critical legal theorists, influenced by critical theory, but they just apply it to the law. They say, “Yes, this is super structure,” which is a big thing for the critical theorists. It’s almost like the movie, The Matrix. There’s a super structure that is oppressive, but the critical legal theorists say, “It’s written into the law.” You’re quite right. What the critical race theorist do, their innovation is to say, “It’s race.” And race is the big thing in America, as we know. So they look at everything through that lens.

Richard Reinsch (16:13):

Give us something else, another term we hear a lot, structural racism, systemic racism. How are they defining those?

Mike Gonzalez (16:22):

So that is really the apex of critical race theory. As I said, they believe that racism is systemic, structural. It’s built as Richard Delgado says, “Into the little things that we do in everyday life.” And so it’s the little things we do in everyday life that need to be replaced. The power struggle needs to overthrow the way we just organize as a country. That is very similar to what the BLM founder, Alicia Garza says, that we need to get rid of the organizing principle of society. So it’s not just racist laws or racist events, for which we have very strong laws already, by the way. We have the civil rights act. And if an employer can be shown to have acted in a racist manner, to have made a racist decision, he or she can be prosecuted and rightly so. We need to strongly prosecute people who have acted in a racist manner in the public sphere, where it is illegal to do so. So we do have very good laws already, thank God. Until 1964, we had legally imposed racism. In the South, even if you wanted to sell a sandwich at a lunch counter to a black person, you couldn’t because the law forced you to say, “No, I can’t.” We changed that, and thank God for that. With the promise that we’re going to have color blind policy hence forth. The critical race theorists hate that part of the Civil Rights Act and Civil Rights Movement. They hate the promise of color blindness, and so does BLM. They want to have color conscious policies.

Richard Reinsch (18:09):

So this is interesting too, as I read some of the literature from critical race theory, it seems to me with the Civil Rights Act, the way they’re reading it is, it still protects capitalism. And what it’s saying is, we have these competitive markets for jobs, education, incomes, and sometimes there are these breakdowns, there are baddies, they discriminate on the basis of race and we’re going to help correct for that and make that difficult to do, and we’re going to punish it if it happens. But it’s still preserving the structure. And I take it, and this is like the intersectionality point, it’s increasing the ways in which wrongs can happen. We’re not really about that, we’re about something else. We’re about saying that, “Well, racism is actually so embedded that we need to really get inside the government and remake it and remake how it interacts with the economy, civil society,” et cetera.

Mike Gonzalez (19:06):

Yeah. Again, to quote Delgado, he says that, “Racism happens in the ordinary business of society.” But by the way, all critical race theorists and all the founders of Black Lives Matter, hate capitalism. And this is not just the founders of Black Lives Matter, but this includes the retail practitioners of critical race theory, Ibram X. Kendi, Robin DiAngelo, they’re all on the record as saying that capitalism is racist and bad. And that is because they say that capitalism rewards the wrong criteria, that we have to change their criteria. It’s not punctuality or hard work that we need to reward, we need to reward other areas of life, which they never really define. This is the old criticism of capitalism. For example, somebody who can hit a curve ball has a contract for $400 million, or somebody who’s able to come up with an option to a new option or a put, can make millions and millions of dollars. Whereas a teacher has a salary that’s $50,000. They say that is unfair, that’s a result of capitalism. Obviously you’re looking at a skillset. The people who can hit a curve ball are very, very, very few. And as long as there are thousands and thousands of fans, including myself, are willing to go to a ballpark, that person who has the ability to hit a curve ball is going to make a lot of money and should be rewarded. But they’re at war with that system.

Richard Reinsch (20:43):

On this point, on Black Lives Matter in this… The way I think of it is like, it would be a racialized socialist system as I read this work. And it’s the structural racism licenses tremendous power to get to that point. I wanted to just think for a minute about, you’ve written this book and you said, you’re traveling a lot and dealing with critical race theory in the schools. Black Lives Matter this time last year looked ascendant, looked powerful, had a Democratic party unwilling to criticize it, unwilling to link it to any of the violent protests that were happening. Although, I think the linkages were obvious, you talk about those in the book. Seems to me though, that’s not the case a year later, in the same way. It does seem like a lot of Americans, including a lot of minorities have confronted this and don’t like it, and the progress has been halted, even though there’s still these ongoing attempts to do things. But seems to me a lot of Americans have woken up. And that was my worry last summer was, where is everybody?

Mike Gonzalez (21:53):

Well, there’s two things here. One is, we’re very much living with the effects of Black Lives Matter in the summer of 2020. We have what I call the twin legacies of 2020 and Black Lives Matter. One is the critical race theory, which has now in invaded all aspects of our lives. That is a direct result of the summer of 2020 and Black Lives Matter. The reason why your daughter, her AP Spanish class just spent the whole semester studying systems of oppression in Guatemala rather than Cervantes, that is a direct result of Black Lives Matter. The reason why many people listening to us right now will be dragged by HR into a quote unquote anti-racism training program in their places of work, which are quite racist or break the law themselves, that is a result of Black Lives Matter. So that’s one legacy.

The other one is a huge spike in crime, in homicides that we’re seeing in our cities. And we put anywhere between 25% and 35% in 50 to 75 largest cities in America, where a lot of Americans live, especially impoverished Americans, that is also the result of Black Lives Matter, and studies substantiate that. So the America that we live in today has made worse and inferior because of Black Lives Matter. Now, what you said is exactly right. A lot of Americans are saying, “No, we don’t like this.” That’s the reason why you see these divisive conflicts arising from coast to coast. Because Americans who are quite attached to Liberty uniquely, exceptionally attached to Liberty, say, “No, we don’t want our lives torn up this way. And we don’t want the system thrown out this way. And we don’t want the foundations of America to be pulled out from under us.” And so opinion polls have shown that support for Black Lives Matter has steadily declined. But that is because a lot of people like me, a lot of people… not just me, a lot of people have been writing this, but not the press, that the journalist not writing this. So I have two people whom I blame for the fact that many Americans still do not know the truth about Black Lives Matter. One is the mainstream media, they did not cover Black Lives Matter.

And the other one is the political class. The Republican party has not been great in this. Yeah, they’ll pound the table about Antifa. And that’s because Antifa is… We don’t know Antifa as well, but it looks like there’s a lot more white than Black Lives Matter. Antifa doesn’t have Black Lives Matter in its title, but Antifa doesn’t have anywhere near the power that Black Lives Matter does. Black Lives Matter has a curriculum now that is being taught in the majority of the countries 14,000 school districts. Black Lives Matter has a bill in Congress. Black Lives Matter is partnering with the musical Hamilton. So even though we hear less about it and there’s less support, we’re living in a Black Lives Matter world.

Richard Reinsch (24:53):

It’s interesting too… I didn’t know it’ll be in majority of school districts, that’s interesting. One of the things that’s worked in their favor I think, in a sense of the systemic racism point is, there are pretty stark differences between whites and blacks on wealth differences, income differences, health differences, private property ownership, home ownership, things like that. And we can debate the causes of that. You and I probably agree on the causes, but that’s not what most people in official positions of power are willing to accept. And that seems to give rise to saying, “Oh yeah, this is systemic racism.”

So I guess one question is, how do you deal with that point? We can talk about causes, we can try to make the arguments, but it’s difficult to break through in that regard. And something else is this point about crime, that BLM has always been associated with, has latched on to. The violent crime, mass incarceration and these differences in incarceration rates between blacks, and primarily black men and white men. How should we think about that?

Mike Gonzalez (26:06):

Well, that’s one of the reasons I wrote my book and it’s all in my book, I want to expose all of this. Look, if we want to solve all these problems, we need to talk about them. We need to talk about the causes of the disparities. First of all, we need to disaggregate black, we need to disaggregate the data and whites. We need to look at for example, if you disaggregate from country of origin, you realize the Nigerian Americans and Ghanaian Americans have a much higher income per household than white Americans. Professor at Columbia University, Van Tran who does very interesting studies, looking at the second generation West Indians in New York.

Why second generation? Because they’re the children of immigrants. The immigrant is the first generation. So they don’t have an accent. They have what Van Tran calls zero visibility as an immigrant and 100% visibility as blacks. So in other words, they’re going to encounter racism. If there’s a racist store owner and they’re walking into the store, the store owner is going to be chasing them around. If it’s a racist policeman, the policeman is going to be harder on them because they’re black. However, the second generation West Indians that have been looked at by this professor at Columbia in New York, have closed the gap across eight measures with whites and not completely, but a great deal.

And why is that? He’s looked at the family structure. Not only is the family intact, but the parents are very strict. They live in the same neighborhoods in New York, they live in the same inner city neighborhoods and yet they force their children to come in. When the lights go on the children, come in, they succumb less to peer pressure. There’s a number of reasons why they do better in the cultural indicators. And then you have also to look at black Americans, native black Americans with intact family. Again, the measurements improve vastly. So you have to disaggregate… You have to look at that and white Americans, and look at white Americans with intact families and white Americans with no family, the father is not there. All they did is this functions that we know about, they don’t do very well. Family dysfunction in this structure of family is an equal opportunity killer, is color blind.

So it depends on how we look at the data and how we look at the cultural indicators, and then we’ll have a much better picture. But in terms of mass incarceration, as I’ve mentioned in my book in 2019, the percentage of black Americans who were being put in prison had been declining at a much faster rate than that of whites. So that was improving just as we entered the year of 2020, after the harrowing death of George Floyd, and the deft use of that video by the Black Lives Matters organizations.

Richard Reinsch (29:16):

Excuse me, you have an interesting history in the book which I was not aware of. The Soviet Union forms and pretty quickly they were thinking about ways they can infiltrate countries. This is a missionary… communism being a missionary ideology. And one way they think they can penetrate America is through the injustices that black Americans had experienced. And they start reaching out to intellectuals first to try to find ways to build inroads. And as I read your book, I took you to be making the point that this is just a common problem in America, the racism that we’ve had. And it becomes a source of… It’s been very difficult to deal with. But it becomes a point of infiltration. And it’s been there, it predates Black Lives Matter. As you pointed in the book, you go back to the ’70s and the ’60s. You have an interesting chapter, “Then the ’60s Happened,” in terms of a change in thinking amongst intellectuals about how to use race, or what racism should mean in the law. So this is ongoing, but the point being, I think is… your point being, it’s not about the racism. Racism is the entry point to increase or demonstrably increase socialism in American lives and thinking.

Mike Gonzalez (30:45):

Yeah, that’s an excellent point, Richard. Actually thinking back to the ’20s, right after the Soviet Union is created. And they really see huge potential, they actually want to divide America into black America and white America, and they invite black intellectuals… Let’s not forget that at the same time, you have the Harlem Renaissance, which had seen incredible outpouring of writing of music, of a population that had been enslaved just a few decades earlier, shows what it can do once it’s free. All these great… Langston Hughes is a good writer, and yet they become enamored of the Soviet Union, and then he goes to the Soviet Union.

W.E.B Du Bois, a very insightful black writer also becomes in love with the Soviet Union. In fact, he applies to join the party right before he dies in the ’60s, he goes to see Mao and everything else. However, rank and file black Americans have no truck with this, they don’t want it. All they’re asking for is for their white compatriots to accept them into American life. They want to be accepted. They don’t like communism. They understand that communism is going to destroy their families, it’s going to destroy their livelihoods. So there’s a rejection.

And in fact, the Soviet Union in the ’50s ends up giving up. It realizes that black America has been a complete failure and it gives up this idea of dividing America. It has won only intellectuals. And just like it does with white Americans, by the way. It won only intellectuals. Rank and file families, whether they’re black or white of Americans say, “No, thank you” to the Soviet Union. In the 1960s, following the Cuban Revolution and the Cultural Revolution in China, we have a lot of American students do become radicalized. But also they’re radicalized by the fact that the critical theorists are here. Marcuse, the guru of the new left. And then you do have the Black Panthers. You have the Weathermen, you have Students for Democratic Society. You have all these radical groups running around, the Black Liberation Army, that are quite the Malcolm X, that are quite Marxist and quite revolutionary in their outlook, Stokely Carmichael goes to Havana and so forth.

And that is really the people from that era go on to influence Black Lives Matter. Let’s not forget that the intellectual mentor of the Black Lives Matters organizations founders is none other than Angela Davis. Angela Davis is the grand old Dame of American communism. She runs on the communist party ticket as vice-president twice. She still goes to colleges, universities, she’s still around and she’s very active. She goes to college and universities, she says, “I’m a communist, and I’ve always been a communist.” And these poor college students from Santa Barbara to UVA stand up and give her a rousing standing ovation because they don’t know any better. And she was a student of Marcuse, Herbert Marcuse at Brandeis. So there’s a direct link between the critical theorists and Black Lives Matter through Angela Davis. Which as, I pointed out in my book, BLM: The Making of a new Marxist Revolution.

Richard Reinsch (34:01):

You talk about the ’60s happened, you have a chapter call that. What do you mean? How did that change?

Mike Gonzalez (34:10):

Well, as I said, I think that the… First of all, there’s Vietnam. Second of all, blacks have had it with segregation in the south, and they’re quite rightly demonstrating and marching. And all of a sudden these suburban white kids in the north are seeing on TV what is taking place, and they rightly don’t want to ignore it anymore. And then there’s the Vietnam war, which is kind of leaderless and Johnson just gets us further into it, without really any plan for success. And that provides a spark for, I think, a lot of radicals to come in and try to revolutionize Americans. The leaders of the Weathermen look at Che and look at Fidel Castro, and they say, “These are white law students or white medical students who are able to revolutionize an entire society, we can do the same thing here.” Of course, they can’t. And they proved to be the keystone crux of terrorism. But they, as I said, I think their main influence… Because they failed to revolutionize America. America does come through, but now the people they have intellectually influenced are changing us more deeply than they ever dreamed in the ’60s.

Richard Reinsch (35:30):

Thinking about this moment that we’re in, what do you make of the success of Black Lives Matter in the suburbs? I know we’ve been talking about it. You’ve been describing it with a Marxist analysis, has having built on a Marxist analysis, I don’t dispute that. But what do you think is going on in say wealthy suburbs? I think about the one I live in where we had Black Lives Matter protests, which were just basically white kids. What do you think is going on there? Is this a feeling of religious like characteristics, of this movement filling a need in their lives, a void in their lives or what’s going on?

Mike Gonzalez (36:06):

Yeah, that’s a good question. I do discuss in my chapter on the ’60s, the manipulation of white guilt. And I think that a lot of people looked at the harrowing death of George Floyd, this awful nine minutes captured on film or video rather, and they were… Nobody looked at that and came away not disgusted by it. And I think the message that Black Lives Matter wants is social justice, has resonated because it has been filtered by the press. The press will not mention any of the things I mentioned in my book. They will not mention that the Black Lives Matter leaders are Marxists. They never mentioned that they want to completely change the American system, American society. The press just says that what they want to do is discuss history for the first time, that people like me, we don’t want history to be discussed. That is a complete canard by the way. And not only do… I want more history to be taught.

I want Frederick Douglass, I want even W.E.B Du Bois, even though I disagree with him, I want him taught. I want American students to learn more about this, not less. And I tell you that I’m in close contact with everyone in my space. And I don’t know anybody who says, “No, history should not be taught.” Whether it’s the history of slavery or segregation or Jim Crow. So I think that the people in the suburbs, good Americans, my neighbors, who pitch Black Lives Matter signs on their lawns, in many ways, they’re completely unaware of what is taking place. They completely unaware of who they are, the Black Lives Matter leaders, they lead busy lives. They don’t want their lifestyle to be upended. They don’t want their lifestyle to… If they did, they would just sell their big houses in the suburbs and share the money with the poor. So that’s not what they want. They don’t want their lives to change, they just want social justice.

What they’re embracing though, when they embrace Black Lives Matter, the organizations, is something that will have very nefarious consequences on everybody. Now, there are people who, I don’t know how, make the case and say, “Well, you have to differentiate the leaders and the organizations from the movement.” The movement is a formless word. What matters is the organizations. They have millions and millions and millions of dollars. They have a bill in Congress, they’re making real change in America. The Soviet Union had a great term for people who just went along and refuse to believe that the Soviet Union was evil, they called them useful idiots. That’s a harsh term to use for people who are well-intentioned but misinformed today regarding Black Lives Matter. But there is a certain link there to the old Soviet term.

Richard Reinsch (39:05):

Essentially, one of the ways, something that we’re seeing now, federal courts turn back this attempt… and I think this is directly related to BLM, the Biden administration through the agricultural department. Making loans available to farmers who are minorities, but not to white farmers who may be even more financially disadvantaged, who knows. And the court system said, “Well, you can’t do that. We have laws here about discrimination, what it entails, how to prove it. And you’re offering this loan to someone just on the basis of skin color, without even proving the discrimination or any of the ways we tried to have evidence for that.” So that’s just one sign of… And it’s quite striking to me to think about. And a lot of state governments have done similar things. So we really are dividing ourselves up by race at that point., if that were to continue.

Mike Gonzalez (39:59):

This is a ginormous step backward. This is something that is very serious and we must really be very aware of, and it’s also a direct result of Black Lives Matter. Because this is the first time since the end of Jim Crow that we have the US government not affording Americans equal protection under the law because of their race. We decided as a country that we’re going to stop doing that. We decided as a country that the Plessy era did not work, the separate but equal did not work, that discriminating on the basis of race did not work.

To go back to that, which is exactly what CRT and BLM wants, it would be… In fact, I think most Americans would say, “No, you’re quite right. A judge in Florida said that the Raphael Warnock amendment that president Biden so unwisely signed into law was unconstitutional, and you can make these decisions based on pigmentation.” And thank God for that. And I hope that every time this is tried again, a judge will step in and say, “This is little matter of the constitution, you can’t do that.”

Richard Reinsch (41:15):

So it seems to me, it’s interesting sort of that parts of the ideology, trying to find legal application. So it seems to me like defund the police has already proven to be a failure, as we knew it would. Seems to be in the bluest of jurisdictions that it’s being turned back. And even those leaders in those cities, while they might say defund the police, they’re also trying to recruit more police, the articles that I’ve read. But something like this, like making loans available, you can sell that as, “Well, we’re trying to help people who are the victims of past discrimination,” something like that. And that might actually work. So it seems there’s different parts of the agenda that might have greater or lesser amounts of success.

Mike Gonzalez (41:56):

Well, it didn’t work. Because we could say, “If you can show how somebody was discriminated against and he incurred a loss because of the discrimination, we can make him whole,” but you have to have evidentiary rules. We have to be able to prove that this happened, in which case somebody broke the law and we’re going to make a right. That is different from a blanket, “We’re going to give Oprah Winfrey this benefit, and we’re going to give Ted Cruz and Marco Rubio this benefit, that we’re going to deny some poor sharecropper in Alabama because his ancestry came from Northern Ireland.” That just doesn’t sell.

With regards to the defund the police, I visit the Black Lives Matter site fairly often. They’re putting up all sorts of videos on how successful they’re being in stopping the building, not just the prisons, but the building of prison hospitals and prison psychiatric wards. What do they think they’re doing? They’re very proud of this. So they’re proud of the fact that they’re stopping the building of hospitals, where are sick prisoners going to go? What they want, and Patrisse Cullors is very open about this in a video she made just a few months ago, is they want to not just defund the police, they want to end the prison system and they want to end the court system, and no society can live like that.

And we also have the rogue prosecutors in American cities, in San Francisco, in Boston, in LA, in many different places, even nearby in Virginia, which the police are making fewer arrests because they’re pulling back, surprise, surprise, because of the criticism they’ve come under. But when they do make arrests, the prosecutors are putting these people back onto the street. They’re not prosecuting, they’re not charging them with anything. Do you want to know why have a 25 to 35% increase in the homicide rate? There is a pretty good reason why. So I think even though politically to say defund the police… And by the way, Cori Bush just made a video two weeks ago, this Congresswoman who’s a BLM supporter saying, “No, I want to defund the police. We need to get rid of the police.” So I think we’re living, even though we may not know it, we’re living in a BLM world.

Richard Reinsch (44:29):

That’s interesting. So as you have traveled and thought about these issues a lot, what do you think is key to getting beyond this moment?

Mike Gonzalez (44:38):

I think exposure of the issues, was just the reason I wrote my book, BLM: The Making of a New Marxist Revolution. I think to prove to people… I think that’s already succeeded, as you put it yourself earlier, support. The polls show that yes, especially among white Americans and this Americans who designated themselves as Hispanic, support for BLM has dropped substantially. I think that we need to continue to do this work. I think we need to have a real reckoning in America. Not the false faux racial reckoning, that the journalists, that the media class tried to pretend that we had last year. We need to have a real reckoning of who we are as a country. What do our would be leaders, people who want to lead us, what are they saying? Do they think we’re evil? Do they think that we’re systemically racist? Do they think we need to overturn the system? We need to put them on the spot and then make them accountable. And so I think that that is the way. First, we need to have a revolution of the mind, so like the colonist had in the 1760s when Britain had intolerable acts, and then we need to act on that revolution of the mind. Once we change minds, the politicians, even the bad politicians will do the right thing. That’s a Milton Friedman quote. “We can’t expect just the good politicians, we need to create such an environment in which the bad politicians will do the right thing.”

Richard Reinsch (46:05):

All right, Mike Gonzales. We’ve been talking with the author of BLM. Thank you so much for your time today.

Mike Gonzalez (46:11):

Thank you very much.

The Collapse of American Legal Authority Oct 01, 2021

Richard Reinsch (00:19):

Hello, I’m Richard Reinsch. Today we’re talking with Steven Smith about his new book, Fictions, Lies, and the Authority of Law. Steven Smith is the Warren Distinguished Professor of Law, at the University of San Diego. He’s the author of numerous books, including The Rise and Decline of American Religious Freedom, Law’s Quandary, and, he’s been on this podcast… I think this is your third appearance, Steven, so we’re glad that you’re-

Steven Smith (00:47):

I think I might be.

Richard Reinsch (00:48):

… a repeat offender. It was Pagans and Christians in the City, I think was the most recent appearance.

Steven Smith (00:53):

I think we did have a conversation about that one, yes.

Richard Reinsch (00:56):

It’s great to have you back, and you’ve written another provocative book here, Fictions, Lies, and the Authority of Law. So tell us, what’s going on?

Steven Smith (01:04):

Well, the book combines some things I wanted to write about various subjects that are all connected, I think, by the problem of authority and questions of authority. I tried to have a lead into that by quoting Hannah Arendt’s, I think, very intriguing claim that she made about the middle of the last century that authority has disappeared from the modern world. We no longer know what it is. In losing authority, she said, “We have lost the groundwork of the world.” So that’s pretty provocative, but also puzzling and raises lots of questions. So I used that as the way to get into some of these various questions. Some of them are more standard law professor type questions about constitutional interpretation and statutory interpretation, and so forth. Some of them are more straight jurisprudence questions that legal philosophers like H. L. A. Hart and so forth have dealt with. Some of them have to do with things that I think are really on the minds of and kind of worrisome to a lot of people today about cancel culture, living with lies, that sort of stuff, is also the subject of one of the chapters.

Richard Reinsch (02:13):

Yeah. I’ll confess this. So coming to your book, before I started reading it, what got me interested in it and thinking that this could be an interesting interview is just looking at contemporary America right now. We’ve got this heavy movement, we’ve covered it extensively at Law & Liberty, that insists basically America is founded on a fraud. It goes beyond even the old progressive claim that we’re ill-founded, but that we’re just founded on something like slavery and racism, and the perpetuation of that through our institutions. Then, of course, the way in which political claims are debated, or rather not debated, in many respects, in our country and how we label one another as not just wrong, but people we struggle to even dialogue with. Just thinking about right now, this question about masks reemerging with the Delta Variant in certain states, and are masks going to be required and how we deal with people who don’t want to wear masks and vice versa. All of this, I mean, the general tenor of our politics makes me think there is nothing in our constitutional order that we see as transcending heated contemporary differences. Do you see it that way and has that led into what you’re doing in the book?

Steven Smith (03:29):

Yes and no. I think, actually, it’s turned out, with all of the anti-racism concerns and the COVID restrictions and so forth, that there are a lot of ways that the book has immediate applications. More than I thought it would have as I was doing it or even when I was pretty much finished with it, which was I finished writing it really almost a couple years ago, before a lot of this happened. You know it takes a while to get something published. In the meantime, it’s been gratifying and alarming to see that I think there are quite a lot of applications to some of our on the ground current practical concerns. One way to get into that, I suppose, would be to say that our system of government is based on the idea that government has to come from the consent of the governed. That’s a foundational proposition. It’s in the Declaration of Independence. It’s been recited innumerable times over the course of our history. That’s kind of axiomatic in many ways. It’s also a privilege familiar, and lots of people have written about this, that that’s a problematic idea. Do we really have the consent of the governed? I deal with that in what I think is a little different way saying, well, in a certain sense, no, it’s a fiction to say that we have the consent of the governed, but we can have accounts of authority, I think, that can be based on fictions if the fictions are widely believed. I try to combine the consent of the governed idea with the idea that people like John Finnis, but other people have developed a coordination account of authority.

You know that authority comes from the need for coordination, not just punishing offenders and so forth and anti-social criminals and so forth, but coordination that’ll allow us to coordinate for the public good a lot of our projects that we have. So that we have a need for that and the ability, as Finnis and others say, of some group or institution to provide that coordination is the foundation of authority. I find that to be quite a plausible account, but it creates a question of where do people get or where do some person or institution get that ability to provide coordination. The answer, I think, is, at least in part, they get it because we think they have authority. In our system, we think they have authority goes back to the consent of the governed. So the consent of the governed does sort of figure in authority, even if it is, to some extent, a fiction, I think. If it’s a fiction that’s widely believed and beneficial, I think it can be the basis of actual authority. But if the fiction becomes frayed and so forth, there’s discussion, then the authority can disappear. I think we’re seeing real concerns about that just over the last couple of years.

Richard Reinsch (06:24):

What do you think Hannah Arendt meant by the modern world faces the evacuation of authority? What did she mean by that?

Steven Smith (06:34):

She has a long answer on that that traces this back to Roman ideas and so forth. To be honest, I don’t really go into that much because she’s not the only person who has claimed that. I quote several other people who have also said… Søren Kierkegaard for example, and other more recent observers who say that authority has disappeared from the modern world or that it’s very problematic or that we don’t understand what it is. So I say upfront that this isn’t going to be an exegetical sort of work trying to figure out what any person in particular had in mind. But I admit, I use it more as a point of departure to explore. I keep coming back to Arendt’s claim, but I’m still using it less to figure out what exactly she meant and more as a point of departure to consider a lot of things that I mention.

Richard Reinsch (07:25):

I haven’t read or written a lot, but that ground work of the world. I mean, is this some sort of classical-

Steven Smith (07:35):

I doubt she meant what I end up-

Richard Reinsch (07:37):

… classical political philosophy account of reason and politics? I don’t know. Question on consent of the governed though. My understanding, the root of that concept from Harold Berman’s Law and Revolution is monastical reform in the early Medieval Period. The principle being within monasteries, voting amongst the monks on who would be your abbot, what would be the rules that would govern, and the idea being what touches all concerns all and therefore, should receive consent by all. In my understanding, that’s like a natural law root of that, taking man as a dignified being created by God seriously and His reason seriously, therefore, is consent as to what touches him and law. I’ve always thought that’s not someone trying to articulate a fictional account, but maybe a truthful account of who man is and how he should be governed, and then that spreads one account. As Berman documents, that makes its way through a lot of Western legal thinking, in particular in the English Medieval law.

Then it comes out in what I would think of as the good Liberalism and the American founding, as… Then it becomes a more general political teaching. So, I guess, when you describe the consent of the governed maybe as a youthful fiction, I think, or it’s a better fiction than other fictions, but what do you make of that? Then also, a consent of the governed, but in American context would be Republican or representative consent. Not consent of each and every person, but of those who have appointed, so necessarily that’s why the Philadelphia Convention wants state ratifying conventions, not just the state legislatures, because it wants that approval apart just from state authorities. So what do you make of all that?

Steven Smith (09:38):

Good question. A couple points here. One is as far as the genealogy of the concept, I don’t really try to trace that through here. I mean, to the extent, I rely on historical work in this book, it’s more on Edmund Morgan’s, I think, really good book on Inventing the People. He talks about the idea of the people and consent and so forth. But he’s starting with the English Civil Wars in the 17th century, I think, is what he’s mostly talking about and that’s as far back as I go here. But I’m sure the idea does go farther back. Berman’s book, one I’ve relied a lot on for other purposes, but I haven’t really focused on it for this purpose. I do quite a bit of work in the area of religious freedom, and other people do, and trace, you might say, very related ideas way back to Tertullian and so forth, that religion has to be consensual. Those things are not unrelated, I think, to this idea that authority needs to be accepted by… It can’t just be coercively imposed and so forth. So the fundamental idea probably has a lot of roots. It’s also one that I don’t in any way mean to disparage it. I mean, I think it’s a very valuable, and for lots of purposes, it contains real truth.

But just in a couple steps, I mean, the most common objection, I think, though to this as an account of the authority of, say, modern governments like ours is that most of us never really did have an opportunity to consent. No one ever sat us down and said, “Do you consent to be governed by this regime? If so, initial here.” We just didn’t. Theorists who try to make up for that with theories of implied consent or constrictive consent say some good things, and I think even relevant and valuable things, but don’t really supply actual consent by most of us. So that’s why I argue that it’s a fiction. But in explaining how a fiction works, I do say that a fiction will work… It needs to satisfy a couple of conditions. One is plausibility. It doesn’t need to be true, but it needs to be true-ish. You can’t really work with a fiction, even a movie or a book and a big political fiction like this unless it is true-ish. The fiction of the consent of the governed, I think, is quite true-ish for our system, but its plausibility does hinge on things like voting rights and freedom of speech. These are all, I think, very valuable things.

So it’s a fiction that, though it is partly fictional, that’s had, I think, very beneficial effects. It’s an ennobling fiction, you might say, and one that works to make government, I would say, better, more enlightened, and so forth than it would be coming from some other fiction. For example, the parties for the vanguard of the Proletariat, for example, and it’s going to lead us to the revolution. So it’s a very valuable fiction in that sense. Again, by fiction, I try to carefully distinguish between a fiction and a lie. I mean, those blur together at some point, but they’re not the same thing, I think. In saying that this is a fiction, I don’t mean to be saying it’s our system is based on lies. I think it’s based on things that are partly fictional, but valuable, ennobling fictions in so far as we act on them.

Richard Reinsch (12:59):

So you’ve used, you said, true-ish, truthful fiction. Is there a truthful account of legal authority and how would we know it?

Steven Smith (13:09):

Yeah, well, towards the end of the book, I try to get into that because the first chapters are mostly trying to expound the idea that authority can be based on a fiction… what we call authority, the functions of authority can be based on a fiction, but that one of the consequences of that is that is that there are a lot of questions that we perpetually debate, seemingly never reach answers and that one of the reasons for that is that we’re treating what’s at bottom of fiction as if it were a fact, as if there were some fact of the matter that could settle what the Constitution means, for example, for some particular thing or what a statute means. To the extent that those things are based on fictions, there’s not going to be any fact of the matter that can settle a lot of those debates. So I think that helps to explain why we never do reach any sort of real answers and we probably never will, because it’s not the kind of thing that could yield those kinds of answers. But that’s still dealing with, we call it authority, I call it authority in the first part of the book, but later I suggest this might be a faux authority.

So if you ask, as you just did, is there any sort of true authority, could there be? The latter chapters, the last two chapters and the epilogue, try to address that question more directly. I might mention the evolution here. Some of this is based on an article I did about 10 years ago which suggested that no, there couldn’t really be true authority. Even God’s authority is not exactly true authority. But reflecting on that in the intervening period, I’ve come to the idea that no, that’s a mistake. I think our modern commitment to autonomy and equality is so emphatic that I think it makes it very difficult for us to recognize what true authority would be. But I argue in the last chapter and the epilogue that, for example, in a Christian perspective, I think there’s, in some ways, a standard answer to this, although one that probably most, even Christians, today no longer think in these terms. That is, yeah, there is a true authority. The king of kings, the early governments that we respect have a kind of authority, but it’s a shadow of the true authority that is there and someday will actually be more operative. I try to explain how that kind of authority could satisfy the conditions of real authority in a way that Earthly governments just really can’t.

Richard Reinsch (15:46):

Something you also write about in the book is anthropology and the significance of who we think man is, what do we make of ourselves, what are we for, as getting at this question of legal authority. So, as you were saying, the dominant understanding, I think, particularly amongst elite classes, is we’re autonomous, we give the law to ourselves from deep within our conscience, which we conceive of in a very subjective way. Who the human person is is growing in sophistication with his own law giving or her law giving. The other conception of that is, I think you used this term, which I like that term, is that we’re deeply relational and we’re not autonomous. We’re dependent on others for everything, and that’s a recognition of wisdom there, that we need other people not just for contracts, but in deeply embedded ways. But, I guess, my question to you is, and that’s the position you side with, I largely agree with that position, what does that mean though for law and for government? Might that give us a way for thinking about it that moves it beyond a fiction? Even the noble fiction you describe.

I say that our system has been based on a fiction, but that’s not the same as a lie. One of the ways of distinguishing is to say, “Is this a proposition that people are willingly entering into, engaging with the fiction the way they do when they go to a movie, for example? Because it’s plausible and because it yields benefits.” In the case of a movie, it might be wisdom or it might be entertainment. In the case of a political fiction, it’s authority, necessarily coordinating authority.

Steven Smith (16:58):

Well, I guess, I think that… Again, I think this is, and obviously there are lots of different views on this, including lots of different Christian views and so I’m not suggesting that even all Christians would agree with this, but I think it’s actually a fairly common Christian position to say that… Let’s say that the governments of this world have a kind of authority, I sometimes call it faux authority, but I don’t mean that it’s not real or that it’s not valuable. They have a kind of authority, but it isn’t really the ultimate authority. So to that extent, human law, positive law, will never have the really ultimate authority or reflect the kind of ultimate authority that, say, divine law would have. That, I think, is actually a fairly… I don’t think that’s anarchic or nihilistic or anything, I think that’s a pretty healthy understanding to remind us, on the one side, yeah, there is a real authority there, but on the other hand, it isn’t really the ultimate authority and we need to keep that in mind.

I think that reminds us of the limits of law. It prevents law and government from becoming objects of idolatry. But in this book, I’m not really trying to argue that on theological grounds at all. I’m just trying to say… My take out point here is actually H. L. A. Hart’s famous argument about the gunman situation where he says a gunman holds you up and says your money or your life. You give him your money, but you don’t say that you were obligated to do so. You might say you were obliged to do so. That was Hart’s point, which quickly, I think, means the gunman didn’t really have authority. The gunman did give you reasons to do something, but it wasn’t truly obligation that he imposed and it wasn’t really authority that the gunman exercised.

I try to argue that Hart was right about that and if you extend that logic, that would apply actually to most other contemporary accounts of what we legal theorists and others typically call authority. That closely examined, even if the accounts are persuasive, they don’t really yield authority. They yield reasons to comply, but not truly authority if we think hard about what authority would be. I think that’s the situation we’re in for most legal purposes and so on. Again, there’s nothing particularly worrisome about that. Then someone might well say, “We should be law-abetting anarchists. If we’re decent people, we will follow the law, but not because it truly obligates us or reflects real authority.” I don’t fully agree with that. I think it actually does give us a kind of practical authority, but again, not the ultimate authority. Again, I think that’s healthy to keep that in mind, to recognize that, that this isn’t ultimate authority.

Richard Reinsch (19:56):

Your chapter on totalitarian governments and through particular experience of Václav Havel in Czechoslovakia and dealing with the Czech Communist government, I thought was instructive of, we can call it a fiction, but I think just a lie about government and what government can do, what it should do regarding people and orders and commands. So that might be… I guess, just, if you contrast that with consent of the governed, it seems to be… If we’re going to say consent of the governed is a fiction, it’s a fiction, I think, tends to build on a truthful, dignified, conception of the human person. Whereas I think what Václav Havel was confronting, and you use of the example of, say, the grocery store owner in Czechoslovakia who complies with the government and puts up some sign or something like that and wants to indicate he’s with the regime to avoid any problems. So that sort of society which is blind obedience and they have control over what you’re doing seems to move in a direction that disregards human nature or thinks it can remake human nature.

Steven Smith (21:08):

Yeah. So I do have a chapter on that. Honestly, I wrote that chapter mostly five or six years ago I think. It’s become, I think, more relevant in a worrisome way in the intervening years.

Richard Reinsch (21:25):

You touch on this in the book, but I was thinking of last summer, store owners putting up Black Lives Matter signs to try and protect their property. Videos I’ve seen of people putting their fists in the air to avoid being persecuted while they’re eating or something by marchers and protesters. You talk about that this was well noted, sessions people get put into at work where they have to talk about diversity or inclusivity and say things they don’t really believe because they don’t want to lose their job. So it’s not as foreign as we might think.

Steven Smith (22:03):

Oh, not at all. As I say, I think, unfortunately much more pertinent than it was when I wrote it five or six years ago. When I did it, I thought, “There are some analogies here,” but I think the analogies are much stronger now than they were then. Let’s just say Havel… A couple points here. I distinguish between fictions and lies. I say that our system has been based on a fiction, but that’s not the same as a lie. One of the ways of distinguishing is to say, “Is this a proposition that people are willingly entering into, engaging with the fiction the way they do when they go to a movie, for example? Because it’s plausible and because it yields benefits.” In the case of a movie, it might be wisdom or it might be entertainment. In the case of a political fiction, it’s authority, necessarily coordinating authority.

So as a fiction, what starts out as a fiction becomes less and less plausible and also less and less beneficial if people continue to be basically induced or compelled to recite it. It becomes harder to say that’s just a fiction, then it becomes more of a lie. That’s what Havel said was pervasive in Czechoslovakia that he was living in and was probably true through most of the Communist countries, I think, at that point. He thought that this was just deadening to the soul. So in that chapter, I tried to investigate whether he was right in saying that these were lies, but it turns out to be a more complicated question than it might seem to be at first. But in the end, I think he was right. Also, was he right that this was deadening to the soul as he claimed that it was? I tried to investigate that as well.

Anthropology again comes into this, but if you think we are beings who have a special dignity by trying to live in accordance with truth, there’s a sense in which it really is deadening to the soul, I think, to live in a situation in which you are constantly being forced to recite things that you don’t believe. Havel was, I think, a powerful witness to that. Solzhenitsyn was another, and so forth. But I think that’s becoming increasingly true in lots of aspects of our life today. I mean, the book is now a year or two old. Douglas Murray’s book, I’ve forgotten the title, the-

Richard Reinsch (24:20):

The Madness of Crowds.

Steven Smith (24:22):

Yeah, yeah. I think makes a pretty good case for that. I just think if you work in the university as I do, that this just becomes more true every year. I don’t know if the trajectory will continue. I certainly hope it won’t. But Havel’s sign, the one that he, in his famous essay, talks about, is the grocer who has to put up “workers of the world unite.” I sometimes thought that academics who might get forced to recite things, do certain training, affirm certain things, maybe ought to just put up a sign in their own windows, and maybe I’ll do this at some point if it comes to that, workers of the world unite as a way of invoking Havel’s essay because I do think this becomes a pretty distressing situation that applies to us as well.

Richard Reinsch (25:10):

So one question that comes to mind here is so what would account in… How does that good fiction begin to break down? I guess, a related question is what do you make of loyalty? Where does that come from?

Steven Smith (25:24):

Loyalty. Every now and then, I’ve thought of… Josiah Royce wrote quite a bit about loyalty and self-worth and every now and then, I’ve thought of trying to undertake some project on that, but I never got very far with it. So I think it would be related to this. I think one reason, for example, to cooperate in the project that may be based on what’s, in a certain sense, a fiction is a sense of loyalty to, well, the enterprise, to those who maybe have sacrificed a great deal to get the enterprise going and to start it and so forth. So I think they do relate.

But then when you ask something like what’s the difference between a system like ours based on what I regard as a wholesome, let’s say, ennobling fiction and something like a fiction in, well, Soviet Union or Czechoslovakia and so forth. So I think there are a couple differences. One you’ve alluded to already, but some fictions, I think, are going to have more beneficial effects than others. Our fiction of consent of the governed is one that tends to have pretty admirable, desirable implications like it promotes voting rights, it promotes democratic participation, it promotes freedom of speech, I think, because those things all follow from the fiction and make the fiction more plausible or true-ish, and those are good things I think and so forth. Whereas the other fictions won’t be nearly as wholesome or beneficial. Like Marxist fiction, so I would say for example. But the other thing is, I don’t really endorse this idea, I just consider it as a possibility at one point in the book, that maybe fictions have a certain kind of career of life course or something that something begins as a fiction and it seems so true-ish and so ennobling that it just really doesn’t seem like a fiction at all. Maybe saying that government must be based on the consent of the governed.

When Thomas Jefferson says it, seems not really even a… more like a self-evident truth as he said. Then perhaps over the course of time, things change, whatever, and the fiction becomes less plausible, so it moves more into the realm of a lie more than a fiction. That may have been true with the sorts of fictions that Havel was talking about. Maybe early in the Communist Revolution, maybe those were such exhilarating propositions that they seemed to be not just fictions. But, by his point, I think it’s clear they’re lies. You wonder whether a similar career might apply to some of our fictions, but I just pose that as a question. I think I’m reluctant to give even a real tentative answer to those.

Our nature is to be autonomous, meaning giving law to ourself and so forth. The idea of that we’re, by nature, political beings and that basically our essence does consist in part in relations to others, including within a hierarchy, let’s say, government and so forth, I think that is much closer to the relational view and makes much more sense in those terms.

Richard Reinsch (28:09):

You talk about by the ’70s, it was hard for most people behind the Iron Curtain to believe in, say, Marxist revolutionary claims because of what they had observed. I think one of the things they had observed and felt was their regime did not respect them as persons and wanted to remake them in an abstracted image and that just hadn’t worked. That raises the question of truth. I think in the case of our regime, what I think has happened in the shorthand is the moral relativism somehow disestablishes truthful claims, but it doesn’t stay in relative land. Somehow relativism has opened itself up to these claims of identity as being the valid way to think about what it means to be a human person. Identity, race, sexuality, gender, whatever. That’s now what a lot of people are latching onto. So something like consent of the governed doesn’t really make a lot of sense because, well, that’s just how the dominant group stays in power or something like that. So I think it’s a two-step process. Relativism then turns inward and looks for another source of… You can’t stay a relativist for very long. It’s sort of has looked for something else and this is pre-reason, pre-logic, it’s an identity and some ascriptive characteristic, and that becomes, well, this is how we should think about government and who we are and blah, blah, blah.

Steven Smith (29:42):

Yeah. Well, I agree that definitely that sort of trend is very apparent. It may relate to this consent of the governed proposition in a way I hadn’t exactly thought of. But to tell you the truth, I am developing more in another book that I’m working on, pretty much finished, but has more to do with freedom of conscience, but Jefferson’s proposition that we have inalienable rights and the government has to be based on the consent of the governed were based… he claimed were self-evident truths, but they were linked to the idea of a creator who makes these things true and endows us with the rights and so forth. So in a certain sense, they get their normative value from theistic premises, I would say, that I won’t say that people no longer believe them. A lot of people still believe them. I believe them. But that have become publicly unavailable. They’re not available to use in public debate and so forth. So once you get rid of the foundation of those kinds of claims, you move to something else. I think we have moved increasingly to… In this other book that I’m working on on conscience, I think, conscience becomes less of a response to truth and God as it was for Thomas Moore and James Madison and Thomas Jefferson and more of just a matter of personal authenticity. Authenticity then becomes itself problematic because once somebody’s… What gives them their… a person their identity to which they can be authentic. So there’s a natural dissolution into various forms of trying to figure out what identity means. So there is that, I think, movement to identity and I think you see that very clearly in a lot of what I regard as extremely worrisome modern developments and so forth. I guess, in that way, it probably does relate to… It’s not just the proposition that the consent of the governed is in itself a fiction or not entirely true, it’s that the whole meaning of the meaning of the proposition is embedded in a view of the world that no longer is available. That may be another way in which that fiction could break down and become something much less healthy.

Richard Reinsch (31:53):

I mean, in a way, you’re making the argument in a different key, maybe, than John Courtney Murray made in his 1960 book We Hold These Truths. The natural law framework was sort of coincidental to a lot of the framers’ political thought, although they maybe didn’t realize it as much. But that’s what they’re implicitly drawing on in their writings about revolutionary government and separating from the British and the reasons why. So they’ve got this framework. Some of them understand it, but a lot of them don’t. It’s just in the air. But it’s still available to us as a resource to use to develop arguments for, as Murray says, the natural law framework of our Constitution. Another phrase here is built better than they knew, speaking of what the Founders did. So I’m sympathetic to what you’re doing. One question that comes to mind is is your project, and thinking about authority, does it presume, say, a political liberal, political modern principle that government is artificial and so we have to try and find a way to account for its authority? As opposed to, say, another way of thinking about government is that its natural and man is a political animal. It’s a part of who we are. We’re born into political society. We don’t create it. It wasn’t created at one point in time. Therefore, if it’s natural, then maybe it’s authority isn’t an intractable problem.

Steven Smith (33:22):

Right. So I guess, I think that suggestion ties very much into some of what comes towards the end of the book and what you and I were discussing a little bit. The really modern prevalent assumption, you could call it Kantian or whatever, but it actually probably comes from lots of places, and that autonomy is our basic nature and the source of our dignity, I think, does imply that there’s something artificial about government. I mean, government is… you got to account for it in terms of some social contract or something or other because it isn’t exactly natural to us. Our nature is to be autonomous, meaning giving law to ourself and so forth. The idea of that we’re, by nature, political beings and that basically our essence does consist in part in relations to others, including within a hierarchy, let’s say, government and so forth, I think that is much closer to the relational view and makes much more sense in those terms. I am a little bit wary about just signing onto that though because, I mean, I think that could go in an unhealthy direction to say our nature is to be submissive to some sort of authority. I think you have to be careful about the nature of the authority to which we should be submissive. But when I try to develop the relational account towards the end, that’s the direction that is going, I think.

Richard Reinsch (34:46):

Yeah. Well, and it suggests if government is natural and it’s a part of who we are, and as languaged beings, we give reasons, but we’re also radically incomplete, so we need other people, so we need law, we need authority, we’ve got to develop, I think, not… but also the reasons why we continue to do it and uphold it. I think also it’s the anthropology of being relational would suggest there are limits to government. It should uphold these good things of human persons like… Because you suggest in the book, you talked about real authority in the book, but it’s not in government. It’s family. I think you say coaches, friendships. Those are things of authentic authority. So we would want the government to uphold those things because those are really accurate accounts of personhood where we can flourish and that would be a way of thinking about good government versus bad government and what it should do.

Steven Smith (35:38):

Yeah. The other side of that is conversely you know what you don’t want government to do, is attempt to basically take over, commandeer, interfere with the sources of genuine authority that still exist like family and these other sorts of associations. Because I do suggest that… I mean, not that they are inherently sources of good authority because they can be dysfunctional too, but they can be sources of genuine authority that help us to be constituted as full people, I think. Connections to family and other sorts of mentors and so forth, I think, in the relational view are necessary to basically realizing our personhood. So it’ll be very unfortunate if government decides to impose its norms all of those associations and relations as well, to which there is some tendency, I think, again, there’s a pretty strong tendency in recent decades.

Richard Reinsch (36:30):

Maybe a final question, a big question, does classical natural law influence you either way here in your argument? When I say classical natural law, I’m meaning this idea that we can participate in discovering the law with others. It’s not that we don’t make it, but we don’t really make it. It’s something that we find. So the participation meaning there’s just something above us or beyond us or for us that we’re going to discover and use in crafting law. Does that shape your thinking about authority or should it?

Steven Smith (37:08):

Well, I think I would say this, that I don’t really try to develop anything like that in this book. But I think to the extent that the argument is persuasive could be fit nicely into that kind of framework in the way that would make sense of a lot of what we do and so forth. In the classical framework, I guess, I think it would still… So if you take Aquinas, let’s say, as the premier expositor of that sort of view, I think it’ll still follow that governments have authority and that law would be, well, a lot of it would be not directly derived from the natural law, it’d still work through tradition and positive law, determinant, I might say, and so forth. But the government will have a kind of genuine authority. Even then, I think it’s still not the ultimate authority. It needs to be seen as derivative of or modeled on and authorized by ultimate authority and so forth. Then I actually think you can get to a fairly plausible and wholesome picture of the whole condition that way. But that’d be a lot more for me to take on, I think, in this book than I’m really up to.

Richard Reinsch (38:23):

Maybe something that I’ve wondered is I assume you started writing this book, maybe I’m wrong, because you think we were experiencing a diminution of authority in our country. I guess, maybe just your big thoughts there too. Is that why you wrote the book and did you find something that you didn’t think would be there?

Steven Smith (38:43):

Yes and no and yes I can say to those two questions. So actually, I mean, I did write some of the different sections at different times in response to more particular concerns or motivations. I got interested seven years ago in just the more jurisprudential question of authority with various legal theorists who try to explain authority and growing out of H. L. A. Hart. I thought that was a pretty interesting and so I did some work on that. Then the middle chapters that have to do more with Constitutional and statutory interpretation are things that I just… I work with those things and occasionally write things relevant to them and those are pretty interesting in their own light. So I already had been working on those, thinking about them, and written some other things related to them.

The chapter on living with lies is something that was provoked more by concerns that have just gotten much more intense in the years since I did that thing. I never published that, I think, before, but I had written that some years back. So that was prompted by something else. So the motivation was various, I might say, for the different parts. Then it seemed to me that, particularly using Hannah Arendt’s provocative claim, actually, these things kind of fit together in terms of some overall problem of authority in the modern world. So I did try to connect them up in that way and so forth. But I didn’t initially think of them all as part of a single project prompted by some particular concern. But as it did come together, I just think the concern has grown much more urgent and intense. I mean, I think there are just a lot of what I see as unfortunate directions in our politics and our society, frankly at my own university for that matter.

Richard Reinsch (40:24):

Yeah. Well, I think it’s when we look and see those in leadership positions in, say, law, government, education, and then those who give us ways of thinking about our time, like media figures, or put thoughts in people’s minds, when they start to lose faith in the country or actively despise it, it seems to me then the country starts to fall apart at that point.

Steven Smith (40:51):

Right. In a way, I think this book, I hope it doesn’t contribute to that necessarily, but it does give an account of it because, I mean, it does say that in so far as… I mean, this is just the mundane analogy would be if you go to a movie and you or your friend, whoever, who goes with you keeps saying, “This didn’t really happen. This is all…” it’s going to undermine the… A fiction is, I say at one point, a conspiracy where the author and the reader or the hearer agree to participate in something for their common benefit, which involves, in some ways, suspending judgement about certain things, understanding that these are fictions, whether they’re beneficial fictions. If we keep reminding ourselves these are fictions or trashing the fictions and so forth, that will ruin the project.

Now, there are reasons for it. I mean, sometimes that’s the appropriate thing. I mean, I think, for example, those in the Communist regimes who undermine the fictions are doing something that was a good thing and so forth. Even though they were undermining that kind of authority. So I’m not saying this is always necessarily a bad thing, but I do think that we see a lot of that going on today, picking up steam and everything. It’s a concern. Interestingly, it ties into… I read something about authority’s the groundwork of the world. I mean, it undermines, I don’t say the ultimate groundwork, I trace that, I think, in the end, suggests that’s more a transcendent ground, but in a more mundane sense, yeah, the groundwork of the world, I think, is really shifting in a way that is troublesome.

Richard Reinsch (42:27):

Steven Smith, thank you so much for joining us. We’ve been talking with the author of the new book, Fictions, Lies, and the Authority of Law. Thank you so much.

Steven Smith (42:34):

Thank you.

Richard Reinsch (42:36):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

Supreme Court Roundup 2020-21 Aug 31, 2021

Richard Reinsch (00:19):

Hello, and welcome to Liberty Law Talk I’m Richard Reinsch. Today we’re talking with John McGinnis about the recently concluded Supreme Court term of 2020 and 2021. John McGinnis, many of you will know is a contributing editor at Law & Liberty. He’s also the George C. Dix Professor in Constitutional Law at Northwestern University. He’s the author of a number of books, including Accelerating Democracy, Princeton University Press. He’s co-author with Mike Rappaport of Originalism and The Good Constitution published by Harvard Press. He has published in leading law reviews, Harvard, Chicago, Stanford, Yale, and in many journals of public opinion, National Affairs, National Review, Wall Street Journal, among many others. So John, we’re glad to have you to talk about the Supreme Court term.

John McGinnis (01:05):

Glad to be here.

Richard Reinsch (01:07):

So overall, what we should note about this term, all of the cases were heard by teleconference because of the pandemic. We welcomed a new member of the Court Amy Coney Barrett, confirmed before the presidential election, and so in that sense something new. But how would you characterize this term? Any startling developments that you’ve read, John?

One way of thinking about Justice Kavanaugh and Justice Roberts is I think they are, people who’re more attuned, more concerned about the political reputational capital of the Court there.

John McGinnis (01:28):

Well, I do think it is important to understand that this is a new Court. I think it is well said that when always as a new Court, whenever a new justice joins and so the dynamics change. And I think this is the case more so than with other changes, because of course Amy Coney Barrett replaced Ruth Bader Ginsburg, and that is a dramatic change in jurisprudence, ideology. The only a comparable change in modern time, I think is that between Thurgood Marshall and Clarence Thomas. And you might say that this is even greater because this really solidifies, as many have said, a majority of some people would call conservative, other people might call it a more formalist, in jurisprudential terms, majority on the Court. And the reason that’s important, I think going forward in the longterm is I think, the justices particularly someone like John Roberts is very concerned about 5-4 decisions. And I think 6-3 decisions may give them a sense that there’s a little more leeway to rule even the way he would like. And so those are important changes of the Court.

With Justice Barrett, I think we saw in the first term, a fairly cautious judge, this is not a surprise. Again, Court watchers think that to get their sea legs justices have to be on the Court for around four, five years, and that’s when one really takes their measure. On the other hand, Justice Barrett, I think has been quite clear in some of her cases that she’s an originalist, at least when there’s no clear precedent online, I think that’s… On the other hand, she’s cautious about changing the Court’s precedent. She’s not going to be someone like, for instance, Justice Thomas, who’s willing to simply throw out precedent when it conflicts with the original meaning, if there has been some precedent. Good example of that is the Fulton case in which he wrote a concurrence suggesting she doesn’t think the famous case of Smith is correctly decided. If you recall that case was one in which Justice Scalia said that, so long as the law was neutral, you really could not have protection under the free exercise clause. She doesn’t think that’s right, but she’s very cautious about throwing it out, which is not to know exactly what’s going to come afterwards. And that’s very much in contrast with not only Justice Thomas, Justice Gorsuch and in that case, Justice Alito were more willing to overrule precedent. So I do think we see both an originalist and a cautious judge in the newest addition to the Court.

Richard Reinsch (04:20):

And Barrett’s appointment to the Court also makes you suggest on Law & Liberty, not suggest, but argued, Justice Kavanaugh to be the new median justice on the Court.

John McGinnis (04:32):

I think that’s right, and that is born out by the statistics. I think I suggested that was likely going in and then at least this is one prediction I think that was right. He was in the majority, I think something on the order of 98% of the time. And that’s a pretty good indication, you’re the median of the Court when you’re at that height of joining the majority. And that’s not a surprise in some sense, I think. One way of thinking about Justice Kavanaugh and Justice Roberts is I think they are, people who’re more attuned, more concerned about the political reputational capital of the Court there. Of course, Washington insiders in a way that the other judges and the conservative majority are not, who spent a good deal of their time outside Washington. And I think people who are in Washington just are necessarily going to be looking out on things, reflect off that small beltway community.

Richard Reinsch (05:38):

Yeah. Not a problem for Clarence Thomas, even though he did spend a good portion of his career in Washington prior to the Court.

John McGinnis (05:44):

That’s right, that’s a good distinction. But of course, Clarence Thomas is I think someone who’s very consciously established himself in complete contrast to the establishment, particularly in the area he worked in, civil rights. So I think that makes him a little different showing a kind of willingness to buck the establishment, even at the cost of public perceptions. So I think he’s a little different and I think you’re right about that. But the other judges are sort of quintessential Washington insiders, talking about Roberts and Kavanaugh.

Richard Reinsch (06:18):

Let me ask you a question from a different angle. Just something that occurred to me thinking about this interview. This is an incredibly contentious period in our nation’s politics, do we find this tumultuous politics in any way finding reflection in the Court’s opinions for this term?

John McGinnis (06:34):

I think we do. I think we find it most in the voting rights opinion, the case I’d never know quite how-

Richard Reinsch (06:41):

Brnovich vs. DNC perhaps?

John McGinnis (06:44):

Brnovich.

Richard Reinsch (06:44):

Yeah.

John McGinnis (06:44):

There, I think we see, and voting rights of course has been a fault line between the parties. And that was a very bitter dissent by Kagan, somewhat uncharacteristically. So in my view, so what, I’m happy to go into the facts of that case, if that’s some interest. So this is a voting rights case about a question about a federal statute, whether the federal voting rights statute makes certain laws in Arizona illegal. And Arizona had two kinds of laws. One was a requirement that, if you did in-person voting and Arizona allows quite a bit of in-mail voting, it’s allows early voting. But if you did an in-person voting on election day, you have to vote in the right precinct or your vote won’t be counted. And also it has what is called anti-harvesting provision, suggesting that while you can mail in your own ballot and maybe a family member can, people who are unrelated to you can’t collect a lot of ballots and mail them in. The concern there is not only fraud, but that there can be undue influence exercise too. For people to say, “Well, here’s a ballot, please mark it in the way I’d like.” And that’s a problem.

So the question was, the provision of the statute that requires an equal opportunity for all groups to vote. And there was some very small disparate impact on African-Americans, but we’re talking, I think in some cases 10ths of a percentage point, very small disparate impact. And the question was, was that enough to invalidate these laws? Even the Biden administration said, no. The Trump administration had said no, the Biden administration did not change the position. And the question is, how do you interpret what is an equal opportunity? The Senate said, “Well, it’s an effects test.” So essentially you have to have an incredibly strong reason, even if there’s any disparate impact. The majority said, “No, that’s not the right way to read the statute.” And I think the very powerful argument here is, in the House, there was a provision that was like that, an effects test. But when it got to the Senate, the Senate added a lot of language saying, “We’ve got to look at the total circumstances and you just have to make sure everyone has an equal opportunity to vote.” And I think the majority correctly said that was not an attempt to change all of the voting laws to make sure that there were no disparate effects, because that would have made that language rather superfluous given the change from the House. So I think the majority is right there, but not surprisingly given the fault lines we see about Voting Rights Act, I think that was the most divisive issue in the entire Court term.

Richard Reinsch (09:37):

So that opinion will have consequences rippling out in our politics and future elections. As we see, say Republican state legislatures trying to, I don’t say reduce the number of people that can vote, but putting up just more strictures on voting. Making sure it seems to me, they want to have more in-person voting, but they seem to be, the view is those provisions will be more insulated from legal challenge after this opinion.

John McGinnis (10:03):

Yes, I think that’s right. And note, a lot of these provisions actually are just going back to what the rules were, not all of them, but a lot of them were going back to what the rules were pre-pandemic. And so if the dissent had been correct, I think even those kind of rules would have been really opened the challenge. But the majority said, “Well, the laws have been around a long time.” The laws for instance were around at the time that this federal statute passed. And there was only a relatively small disparate impact, and there seem to be some reason for them, this does not intend to wipe away those laws. So I think it is an important decision that allows for more state authority to change their election laws. But it’s not a carte blanche by any means, if there’s a substantial disparate impact, if there really don’t are no good reasons, and this is a new kind of law, these laws are still open to challenge other than the majority’s opinion.

Richard Reinsch (11:01):

So I want to get to ad law and any implications for ad law in this term. But let’s talk Fulton vs. Philadelphia. Another contentious case with connections to our politics, which the Supreme Court ruled that the City of Philadelphia could not prevent Catholic charities from being involved in its adoption programs because even though that agency did not refer adoptions to same-sex couples.

I disagree with those who said, that really the majority opinion does not improve the situation for religious believers. In the sense it does, if there’s any kind of administrative exception, you got to make a free exercise challenge. And even if it’s not an exercised administrative exception.

John McGinnis (11:29):

That’s right. And what distinguishes this case from the Brnovich case is that it’s a… well, not a unanimous opinion, it’s a unanimous result. All of the justices said that what Philadelphia did was illegal, but there were two very different approaches. And they’re kind of characteristic like the approach that came in the majority from the Chief Justice was I think, a really a characteristic kind of a decision. Working within the law to make it more friendly to free exercise. Doctrinally, the concurrence by Judge Alito wanted really to overturn Smith. So beginning with a majority opinion, the majority opinion plays on one aspect of Smith. Smith says that, “The laws to be insulated from challenge under free exercise have to be laws of general applicability.” And the argument was, well, this law that’s saying they could not participate because they wouldn’t refer about same-sex couples was not a law of general applicability, because the law itself permitted administrative exceptions, and that made it not generally applicable. The interesting thing about that was that there hadn’t been any administrative exceptions.

So this shows quite a weakening in some sense of general applicability. Even if you have the possibility of administrative exceptions, that means the law is not generally applicable and you can make a free exercise challenges to it. And that’s quite important. Indeed, it suggests that in some ways, state laws are more vulnerable if they have administrative exception which they haven’t used. Because if they do use administrative exceptions, well then you can compare them and say, “Well, is this comparable to the exceptions, the religious organization wants?” But here there was no exception at all, and that made the law vulnerable. So I think it’s an important doctrinal move and so I disagree with those who said, that really the majority opinion does not improve the situation for religious believers. In the sense it does, if there’s any kind of administrative exception, you got to make a free exercise challenge. And even if it’s not an exercised administrative exception.

Richard Reinsch (13:51):

So you’re saying, just for my clarification, the law at issue in the City of Philadelphia allowed for exceptions to a non-discrimination policy, but those were never actually exercised by the agencies participating in the program.

John McGinnis (14:08):

That’s correct.

Richard Reinsch (14:08):

And that’s funny, because I read one of the administrative exceptions was race, that agencies could discriminate on the basis of race.

John McGinnis (14:17):

Well, they could, but as I understand it, this had not been an exercise exception. In other words, they had not permitted agencies to do that. So I think that is significant that there was no part of the opinion that if indeed an agency had permitted an exception, I think there would have been questions of, “Well, is this comparable? Are there stronger reasons for denying the religious exception than the other exception.” But I think there were no actual exceptions granted, at least in the specific respect that the religious agency was asking for an exception. I think that’s one of the significant aspects of the case myself.

Richard Reinsch (15:02):

On this, we’re talking about Scalia’s opinion, a famous opinion in the Peyote case, Smith case, whatever you want to call it, in Oregon in the early ’90s. Do you sense in the opinion a desire to overturn that reasoning?

John McGinnis (15:22):

Well so there are two concurring opinions. One the Alito’s opinion says it should be overturned and goes to a very long historical originalist analysis.

Richard Reinsch (15:33):

Did you find Alito to be correct in that regard?

John McGinnis (15:36):

I think that’s a hard question as a scholar, I’d want to study it a longer time. I think he makes some very powerful points. It’s certainly more persuasive than Justice Scalia’s opinion as at least as understood as an originalist opinion. One of the striking things about Smith is for the most famous originalists on the Court, how little originalist analysis there is. And so in that sense, I think just as Alito is pushing against an open door and makes a persuasive case, Justice Barrett I think is persuaded by the textual argument that, the free exercise clause doesn’t seem to be a clause about neutrality and we are actually allowed free speech claims even about laws that would neutrally apply to all speech. So it seems anomalous to understand free exercise in that way, and structural arguments like that, I think our originalist argument. So in that sense, I would say that I am persuaded at the moment at least of Justice Alito is position, but open as always I think an originalist must be, to arguments on the other side based on evidence.

Richard Reinsch (16:52):

So Barrett’s claim is something like, religion in the first amendment is actually regarded like speech, it’s good. It’s a good thing and we want to protect it. And laws of neutral applicability aren’t really the issue, it’s are you impinging on religion period, and that automatically triggers a claim.

John McGinnis (17:12):

Right. And that structurally appears to be the way rights work, and so why should religion be different in that respect? So that’s their argument. She’s not persuaded, she says in her concurrence by another kind of argument, which is that historically people were granted exceptions. And the problem with that argument is that exemptions, is that seems to be a kind of common law argument, and maybe it didn’t carry over to the Constitution. So I think that is perhaps less clear. In any event, the difficulty then for Barrett is because she doesn’t have that historical understanding of when exemptions were granted. That’s one of the things that worries her because she doesn’t have a test that is a touchstone for when you should grant exemptions. Whereas I think Alito looking at the history says there is a test and it’s something that may approach something on the order of strict scrutiny. So that’s the difference between Justice Barrett and Justice Alito in Fulton, and why Justice Barrett I think, is not willing at least at the moment to overrule Smith, which is a little unclear what should replace it.

Richard Reinsch (18:28):

Okay. So now John, we were talking before the podcast that you said every Supreme Court seems to have its heart at a certain area of the law. And perhaps this Court has its heart in the era of administrative law. What happened in this important body of law this term?

John McGinnis (18:45):

I think that’s right. I think Rehnquist Court you can describe is very focused on federalism, and this Court very focused on administrative law. And I think indeed Trump’s appointments through the White House counsel of McGahn certainly Gorsuch and Kavanaugh, were appointed in large view for their skepticism about certain doctrines of administrative law. And their concern about the administrative state as a headless power that really was unaccountable. And we see these appointments bearing fruit, I think in two very important cases in this term. And one is the case of Collins, which is a case about an obscure, I know there are hundreds or 150 or so federal agencies. That’s probably one your listeners haven’t heard of them. I hope I get this right, The Federal Housing Finance Agency.

Richard Reinsch (19:39):

I think that’s right. Yeah. FHFA.

John McGinnis (19:42):

It’s director is insulated from removal. And the argument was based on another case about the Consumer Financial Protection Bureau, where its director was also insulated from removal. And the Court said, “Well, you can’t do that.” You might be able to have multi-member boards because we have precedent on that. But the basic argument, they basically accept the unitary executive argument, that’s the background principle. By unitary executive we mean, the president is in charge of the executive branch and therefore must be able to fire his subordinates. And they accept that in this case and say, there really aren’t any strong distinctions between this and the CFPB. There were a few distinctions, CFPB couldn’t make its own budget, but they said these weren’t strong enough. What’s really significant about this case is the amicus who is appointed to defend it after the Trump administration would not defend the constitutionality of this statute and said, “Well, you could put others in its place. For instance, well, what about the chairman of various federal agencies and other actors who seem to have authority that they exercise without going through a board. And the Court, doesn’t say those are not open to challenge. Indeed, it seems to be inviting a challenge.” So my impression is that what’s going on here is, they’re going to cut back and back on some vulnerable precedent. The precedent of Humphrey’s Executor, which says, at least that wards, like the FTC, the FCC can be insulated from removal. And we say, “Well, the chairman can’t be insulated from removal.” And I think ultimately they’re trying to isolate those cases, and we may even see Humphrey’s Executor overruled once you get enough of these cases, they’ll say, “Well, this case is really an isolated anomaly and then kick it over.” So I think we may be seeing this slow, but complete triumph of this theory of the unitary executive. That’s the significance in my view of Collins.

Richard Reinsch (21:53):

The so-called independent agencies and commissions just for our listeners, their heads, or their board of commissioners or agencies or whatever you want to call them, are insulated from removal, exactly why?

John McGinnis (22:11):

Well, the theory before was that, I think here’s the theory that because these agencies get not only executive power, they are rulemakings, they make judicial decisions, they’re not purely executive agencies and therefore they should be insulated from the president’s whims. I think that’s the argument. The difficultly with that argument is the whole theory of why they can be in the executive branch is, they have to be executive agencies and that’s the anomaly here. So once you decide that Congress can delegate power to the executive, you have to say, “Well, it’s really executive power it’s exercise. And the executive branch can’t exercise legislative power.” And so the theory in favor of insulation is in conflict with the theory of delegation itself.

Richard Reinsch (23:05):

Okay. But the people in those roles, they’re not directly challenged here. It’s an agency head insulated from presidential removal. That’s where the Court seems to be pulling us in.

John McGinnis (23:17):

Going I think. That’s my… Because as I say, I think this is one area I think that Roberts and Kavanaugh may care more about as Washington insiders actually. And one other point I would make, I’m making a kind of formalist argument, which I think is the right argument. I think there’s also a realist argument about why Republican appointees are much less sympathetic to independent agencies and indeed independent inferior officers, because the bureaucracy leans left, there’s enormous evidence of that. And so if you don’t have the precedent tugging on the other side, it means it’s going to be much harder for Republican administrations to do what they want to do. Because it’s quite understandable that agency heads they’re going to say, “Well, I better get along with the bureaucracy, otherwise it’s going to be more difficult for me.” Of course, if the president says, “I’m going to fire you, unless you go with my program,” there’s a vector the other way. And so I think there’s a realist as well as a formalist reason that we’re likely to see a continuation of the whittling away of these exceptions to the unitary executive.

Richard Reinsch (24:33):

I wanted to ask you briefly about this case, because it puzzled me just in my own knowledge and thinking about how unions organize. Cedar Point Nursery, 6-3 decision that union organizers can’t compel their way onto, in this case it was corporate agricultural property, to engage in union organizing. And I guess, and I’m sure you have better command of the facts than me, but isn’t it always the case though that a union has to go on to company property to organize? Is this a significant case or not?

John McGinnis (25:06):

Actually I don’t think it is always the case that they have to go on company property to organize, as I understand it, I’m not an expert in labor law, this was a kind of particularly California statute. So I don’t think it is a national statute and the Court doesn’t say that you can’t go, you can’t grant easement that you’d have to pay some amount of money for it. That’s the significance of this case. It’s a 6-3 decision where the majority says that, “We’ve got to have a bright line here. Physical invasion takes away people’s property.” So I don’t think it’s the case. The Court makes it very clear that government officials can come on to people’s property because the common law was understood that they could do so because there may be laws to enforce. It’s very different when you allow private individuals to come on to the property. So I think the significance of this case is in some sense, it’s also a regulatory case and Breyer has as he often does a multifactor test to say why this isn’t a taking. Here the Court is giving a clear rule and saying that regulation just can’t whittle it away, and you’re going to have to pay to be able to get onto a property. So I think that’s the significance of this case, that the alternative, it means that everything is kind of up to regulation. You don’t have clear rights that are protected by the Constitution, they can be whittled away.

Richard Reinsch (26:42):

A question in my mind in thinking about this case and the facts would be different, but it seems to me there’s a carryover with this desire to regulate social media companies, what they can say, what they can’t say. I don’t know if you find a connection there, but just the ability to tell them as a government, well kind of go onto their property and give them commands and instructions. Do you find any connection there?

John McGinnis (27:09):

I think it is. So your argument would be that, so the government regulates, so you’ve got to permit other people to speak. And that’s a lot like going on to other people’s property to speak, and I think there’s something to that. Of course, one is a first amendment case, another is a property case. The government in a property’s case can require you to let people on your property, they just have to pay for the right to access. The first amendment is often a trump card that the government can’t force you to allow someone to speak in your newspaper, regardless of whether it pays for it. So in that sense, it’s different, but there is a similarity that in both kinds of cases, the government is permitting an intrusion of someone into your space.

Richard Reinsch (28:01):

Okay. Now this prompts, I think an easy segue into the next case we should talk about. Americans For Prosperity, a California case implicating the first amendment. California law mandated donor disclosure by non-profits to the state of California. And this was required by California law. And the Supreme Court ruled 6-3 that this impinged, the first amendment rights. Is this a significant victory for free speech?

John McGinnis (28:26):

I think it is a significant victory for free speech. And what it shows is that the majority is taking account. And that is one point I think, needs to be underscored about Supreme Courts generally. Even if you’re an originalist, even if you want to follow precedent, the question is you still have to apply precedence to the facts of the world. And I think this case should be understood as, recognizing the reality of cancel culture. So I think the way to understand the case is to think of the case that it builds on. It builds on cases from the south in the civil rights era, when some Southern states required organizations to disclose their members. And it was pretty obvious that although these laws were often neutral, that they were hoping to disclose the membership of the NAACP. And that was really obviously quite problematic. And what prompted the Court to say that, “Well, you have to have some really good reasons for that, and it has to be pretty narrowly tailored. Otherwise, we think we’re ferreting out that you’re really trying to make it harder to speak, by revealing donors and members.” So that’s that era.

We’re now in a new era and you might say, “Wow, it’s not as terrible, of course, as the era of Jim Crow and the era that people are fighting against segregation.” On the other hand, we have a pervasive issue here of the cancel culture. And I think that’s what’s behind this and in sense it’s say, “Well, we may have a more general cultural issue, particularly with the social media and having your name be able to be put up in lights and being fired from your job, that we’re all a bit more vulnerable in this era.” So I think it’s not only an important first amendment case, in my view underneath it all, is an important recognition that the world of social media has made people more vulnerable to having their decisions about who to support broadcast to the world and used to harass them. And so in that sense, it’s I think a very important case.

I would just underscore that these cases really show how important it is to understand that these Supreme Court cases are not just doctrinal, they reflect our underlying cultural moment, the cancel culture, the culture of indoctrination in schools. Those larger issues are very much on the justices minds when they decide these cases.

Richard Reinsch (30:47):

We also have significant instances in recent years where donor information of nonprofits or to political arms released to the government, found its way into the public square.

John McGinnis (30:59):

Well that’s of course actually true of that case, but so-

Richard Reinsch (31:02):

And it happened… In California, one goes back to the same sex marriage referendum, where lots of people lost their jobs in California when that emerged, they had donated to the anti same-sex marriage groups. So yeah.

John McGinnis (31:16):

Well, I think that’s on the Court’s mind. But I think it’s interesting that in this very case, and just to go back to the facts of this case, this is about charities and having that there was a requirement that you list all the important donors to your charity. And then that was what was being challenged here. California had, well, they said they would keep them confidential, they had released many of these donors. So again, and the example was California didn’t seem to be being very careful and maybe for political reasons releasing these donors, or at least not being cautious. But it’s interesting, the Court… you could have written a more narrow opinion. You could have said, “Well, there’s clearly a chilling effect in California, at least for the next 10 years, because who’s going to believe California they’re not going to do the same thing?” But the Court did not… it wasn’t as narrow as that. In some sense, the dissent, I think said, “Well… the dissent said this.” If you’re really sad just about the facts of this case, that you didn’t think they should have to give in this information, maybe you have a point. Their real problem was the more general requirements for information generally about donors that even if it hadn’t been disclosed in recent times, even that, you have to have a very strong reason not to show that it’s important for enforcement and you can’t do it another way. And I think that’s what suggests that the court is not wedded to the particular facts of disclosure, but to the general fear of cancel culture, that as you correctly point out, they have its origins and epicenter in California.

Richard Reinsch (33:03):

Another first amendment case, Mahanoy Area School District, a case in Pennsylvania where a teenager didn’t make the cheerleading varsity squad. So on social media, she used the F word several times to refer to her school. And then she was then removed from the junior varsity team that she had made. And the Supreme Court ruled, “Social media used by a student in vulgar fashioned can’t be used to discipline the student.” As I read the case, what also was in my mind was critical race theory and other attempts more recently by governments to impose sort of a more comprehensive doctrine on students, and parents and students objecting to this. And it seems to me, this case might actually offer greater protection to those who are objecting to government policies inside schools, in terms of how they might react to them on social media, other than just the narrow facts of the case. What do you think?

John McGinnis (33:59):

I think that’s right, just as I think cancel culture is in the mind, at least of some of the justices in the previous case as least that’s how I would connect them. The culture of indoctrination is on the minds of some of the justices, particularly I think that’s true of the Alito, Gorsuch concurrence here, which I think makes it… So let me suggest that this majority opinion is by Breyer, and as with all of Breyer’s opinions, it’s a multifactor test of whether you can possibly discipline students for off-campus social media expression. And he says, “No, you can’t do it in this case. They didn’t really have a very good reason.” And I think it gives a kind of presumption against it if you’re off-campus.

And I think the reason that in my view, that’s a correct presumption and it should be a pretty strong presumption is that, I think the reason that schools can discipline students for on campus action is, one, necessity, of course you can require people to talk about math in math class and not talk about anything else, but also there are sort of acting in Loco parentis, and that’s a venerable doctrine that was around when the time the constitution was created. But once they get off campus, I think it’s really hard to say that a school can be acting in Loco parentis. And so I think Alito, Gorsuch concurrence, while I’m not saying that’s an absolute bar, tries to erect a pretty strong barrier. And I think that’s one of the reasons I think they fear that whatever, what concerns about indoctrination within the schools, that schools will try to, at least some schools may start to regulate speech outside of schools, to create a new and worrying orthodoxy. So I think you’re absolutely right. And so I would just underscore that these cases really show how important it is to understand that these Supreme Court cases are not just doctrinal, they reflect our underlying cultural moment, the cancel culture, the culture of indoctrination in schools. Those larger issues are very much on the justices minds when they decide these cases.

Richard Reinsch (36:28):

Okay. Is it worth talking about California v Texas? Perhaps last of the grand challenges to Obamacare we’ll see.

John McGinnis (36:36):

I think there’s not much there, frankly. I think that it was pretty clear who was going to lose all. And it was lost on a very technical standing issue. And I don’t think… Well, of course, standing issues or issues interesting to lawyers, I think are little interest to people outside the law. Moreover, many people think the standing doctrine is one of the most manipulable doctrines. And so you might well think that the majority of the Court just wanted to dispose of this. They didn’t think, I think ultimately that it was a very good argument. I think just practically that this could strike down all of Obamacare, because Obamacare… I think the real reason had been the statute had been passed at not wholly again, but had been passed. And so it’s very hard to understand how it could be passed and yet you could say that the result of taking out the-

Richard Reinsch (37:37):

Mandate.

John McGinnis (37:38):

… the mandate and understanding it’s being an unconstitutional tax and now having no money being paid, how one can understand that, by taking that out one could destroy all of Obamacare. I think people like Roberts and others thought that would have been seeming to encroach on Congress’s power, Congress had never made a decision to get rid of Obamacare. So I think that the decision here was for ordained and the standing issue was a way to put the challenge out of its misery.

Richard Reinsch (38:10):

Okay. So I’ll introduce this case by way of saying I was reading in, I think it was The Wall Street Journal, the famous coach of the University of Alabama football team. Nick Saban said that his quarterback, who is all of 18 years old is now worth several hundred thousand dollars, because of name and likeness contracts he’s received. And that results, if I’m not mistaken from this opinion, NCAA vs Alston, where the NCAA was ruled to have violated antitrust law with strict limits it had held on student athlete compensation. So it seems to me, this has the potential really to change the nature of highly competitive college sports.

John McGinnis (38:49):

I think that’s right. Again, I think it’s very interesting culturally this case, as an antitrust case, and I teach antitrust. I don’t think it’s that surprising a case. So let me give you some background. This is a kind of what I call an antitrust, a frenemies case. So the NCAA is an interesting position. On the one hand, in some sense, it’s constituting the sport of college football. On the other hand, of course the teams are competitors, and so that’s why it’s a frenemies case. So they have to have the ability to constitute the rules of the game. They all have to play the same game and they also have to even constitute the idea that this is somehow different from professional sports, that it’s amateur sports.

The difficulty though is that, unlike constituting the rules of the game, where the Court’s going to give a lot of deference to what it does, the restriction on any kind of compensation, including image compensation, including extra support for students, really goes to the heart of antitrust it goes to competition for labor, for wages. And so I think what the Court saw was this is going to be decided under a rule of reason case. The rule of reason is you’re going to look at both sides, what’s the justifications of the partnership as it were, the NCAA are for this? But you’re also going to look at it’s a substantial effect on hurting competition, the competition between college athletes to go to what, which school they’re going to be going to, and getting out as high a compensation as they can. And they pretty much defer here to the district court’s findings, which were that this was a substantial intrusion on the ability of these students to compete and to earn money, I think there’s no doubt about that.

And their other point was there were a lot of surveys here and it’s suggested that so long as they weren’t actually paid a salary, but they got image money and things of that sort, people weren’t awfully bothered by the fact that they wouldn’t be amateurs in the classic sense. And I think that tells us also a lot about our culture. And that also doesn’t surprise me and the Olympics Of course, was once wholly amateur, people were not bothered by a moving away from that line. And I think the Court is in that sense reflecting or the district Court is reflecting and looking at the survey data, is that this really isn’t necessary for college football to survive as independently from professional football.

You need to have, maybe you have some line, you can’t be paid a big salary, but we can still allow these college athletes to benefit from their talents. And I think there’s also a sense, the other cultural factors, is there is a recognition at least that many of these big sports college schools, that some of these students spend all their time on the field and not learning much. And they actually don’t have great prospects, if they don’t get into professional football, they don’t have great prospects with their college degree. And so why shouldn’t they be able to earn a little more money now? So that’s, I think what’s going behind. I don’t think it dramatically changes antitrust doctrine, what it dramatically may change is the nature of college sports.

Richard Reinsch (42:07):

It’s interesting hearing you say, it’s not an innovation in antitrust doctrine. It sounds to me like you’re saying it’s sort of brass tacks and fundamentals of antitrust doctrine. And yet it took… this has been an issue for decades, and only now finds a resolution, that’s interesting.

John McGinnis (42:23):

Well, I think one reason is, is I think at one point, and this goes to the cultural point. At one point, I do think there was an image in people’s mind of the student athlete that really was sacrosanct, but now when it’s people have understood perhaps more about what student athletes are like, is understood more I think in the public’s mind that isn’t as true anymore. And so you actually could say, well, maybe 40 years ago the case should’ve come out the other way, because this was necessary to constitute, people wouldn’t have been interested in college sports, if they had felt that they were being paid at all, that that was so important to their sense of what it was to watch college sports, but I think that’s probably not true today. So as the facts change, the law changes, it changes often. And I think this may be another example of that, and we’ve seen several. If I’d say, that’s one of the themes of our discussion. The rise of cancel culture, the concern about indoctrination, and now I think just the sense of the permeability of the status between amateur and professional. These all are crucial changes in the culture that are driving Supreme Court opinions.

Richard Reinsch (43:40):

Maybe we’ll end with, as an originalist, as a formalist, as a classical liberal, were you satisfied with this term or crucial exceptions that disappointed you, or what would be your final thoughts here?

John McGinnis (43:53):

I’m satisfied with this Court term as a beginning. I certainly think the Court has many things to work out if we’re to move more back to originalism, and particularly the relationship between originalism and precedent, and that’s where the Court made a lot of progress on thinking that through. I think Justice Barrett is going to be one of the most key judges in that respect, whose concurrence and fault really doesn’t attempt to do that. Other than to suggests she’s not with Justice Thomas and being willing to overthrow precedent. That’s the real question going forward. I think there’s little doubt that a majority of the justices are good faith originalists when there’s no precedent. And that’s good for classical liberalism in so far as I think we have a constitution that by and large is a charter for classical liberalism. The difficulty of course is, we’ve had 40, 50 years of precedents that are not originalists. What do you do with them? We have Justice Thomas whose view is pretty much, “So we get rid of them.” We have Justice Roberts who I think is very reluctant to overturn them. The question is, can there be a via media between these? And that’s really where I look to Justice Barrett to be an intellectual leader. And we haven’t seen that so far, but that’s not a surprise, that would be a tall order to ask her in her first term on the court.

Richard Reinsch (45:20):

Well it looks like there will be opportunities coming in the next term.

John McGinnis (45:24):

Absolutely. The Dobbs case about abortion, I think being the most important case that’s come for many years.

Richard Reinsch (45:32):

We’ll be looking for your commentary on that, John. John McGinnis, thank you so much for joining us to discuss the Supreme Court term 2020-2021.

John McGinnis (45:40):

Glad to. Thanks Richard.

Richard Reinsch (45:44):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law talk, available at lawliberty.org.

How to be a Conservative Aug 16, 2021

Editor’s Note: This podcast was originally posted on October 13, 2014.

This conversation with Roger Scruton engages his defense of the conservative disposition. Scruton’s just-released book, How to be a Conservative, might be said to take on the challenge Friedrich Hayek issued in his famous essay “Why I Am Not a Conservative.” There, you will recall, Hayek argued that conservatism does not offer a program, or any substantive content that would affirm a free society. It is always in prudential retreat. This conversation explores Scruton’s Burkean-informed notion that tradition and habit aren’t blind guides, but are teachers and modes of social knowledge by which the perennial problem of social coordination is solved. Here begins the basis of Scruton’s elemental defense of the free society and how common law, tradition, associations, religion, and the boring nation-state are integral to its existence.

We begin with the law that governs the contractual relationships of people, a law not shaped by the legislature, but by social and economic interactions. We can say, Scruton observes, that this law is the people’s common law, one that guarantees their property and associations. Centralization is impatient with this private ordering and attempts to upend it with efficient legislation.

While European elites look to the transnational governance of the European Union as the condition of peace and prosperity, Scruton puts before us the nation-state and its borders as the first order of democracy and political accountability. Scruton notes that limited government is about being relational in a particular spot, ring-fenced by borders, and that allows a common life to develop and evolve. Rulers and ruled can hold one another accountable because the terms of government have emerged from the people of this defined group with their particular history, myths, and shared commitments. Such forms of social, moral, and political capital are eroded, Scruton argues, by a boundless and unaccountable European Union, for whom the principle of subsidiarity is, paradoxically, only the powers that Brussels decides to let member states retain rather than a bottom up conception of government and order.

In this regard, we also discuss the “to hell with us” mentality that is multiculturalism. Scruton notes that it’s cold comfort that major leaders are belatedly coming to terms with its wreckage. Multiculturalism’s existence in the government education system, laws limiting speech, and the soft tyranny of political correctness have ensured its ability to redefine life in his native United Kingdom and throughout much of Europe.

Finally, this conversation explores Scruton’s argument that a free market depends not only on an Austrian understanding of the need for local knowledge but on traditions that encircle goods, practices, relationships, excepting these from the market itself. In short, Scruton argues, an enduring free market will have the sense to recognize its limitations. There really can’t be markets in everything.

I look forward to your thoughts on this podcast.

Planning the Great Society Jul 27, 2021

Is it true what they say about planning and centralized government power? Award-winning author Amity Shlaes in her new book Great Society answers in the affirmative. This wide-ranging discussion examines the intentions and consequences of this momentous quest for planning and power by the federal government.

Richard Reinsch: Today we’re talking with Amity Shlaes about her new book, Great Society: A New History. Amity is the author of four New York Times bestsellers, The Forgotten Man: A New History of the Great Depression; The Greedy Hand: How Taxes Drive Americans Crazy; and a biography of Calvin Coolidge entitled, Coolidge, which she appeared on this program, one of our first interviewers when we started this program. So Amity, glad to welcome you back, and the book has been getting a lot of attention and a lot of reviews from what I can tell, so congratulations.

Amity Shlaes: Well, thank you. Glad to be back.

Richard Reinsch: Sketch for us what was the Great Society?

Amity Shlaes: I think if you start with where we are now; a whole lot of idealism from young people, a generational divide; young people don’t think older people appreciate their concerns; youth talking to Boomers. That’s the way it felt in the early ’60s, so my book is about idealists who were young; some socialist, some idealistic, some capitalist; and what they wanted to make their society not just good, but to superlative, great, and this was the common goal. So, that’s the early ’60s.

The Great Society was also a program, but the ultimate question is how do you get to great? Do you get to great by the public sector or the private sector? And over and over again, we chose the public sector as our vehicle and tool. It didn’t work out. So the Great Society was a 1960s program that foreshadowed all the programs we are suggesting now, and we can also see its results, and the were ranging from sub-optimal to horrible.

Richard Reinsch: When I think about the Great Society, I always think about President Johnson’s commencement address, 1964, at the University of Michigan where he issues the call and he says, “We will build a Great Society.” And I also think about his speech, I think it was a year later, you talk about it, at Howard University and the famous metaphor of life is a race. And because of the way blacks have been treated in America, the race wasn’t fair and this necessitated government intervention. But you don’t necessarily start there. You start with the show Bonanza, and you start with the Port Huron Statement of 1962. Why?

Amity Shlaes: Well, Bonanza was the very popular show that commenced in the ’60s and it really wasn’t just about going somewhere as a lone cowboy; or I don’t know, winning the girl, or killing the bad guy, or rounding him up, corralling him. It was a cowboy show of a new genre. It was a cowboy show about what you do once you’ve settled in a community and you already are rich. It was a cowboy show about what to do with money and how to behave. So on Ponderosa, the family are always trying to show others how to behave; to civilize the Main Street of the frontier town. And that was different, and it really did reflect the ’60s; the Bonanza thesis, the Bonanza subjects, which were how do we share wealth and how do we build civilization and make it better or great? So that’s why I started with Bonanza. The book also ends with Bonanza.

Bonanza was an iconic show. It was extremely popular, and another reason it’s important is the word bonanza. In the early ’60s, most Americans thought that to be rich was our God-given right and the wealth just came from somewhere, a cornucopia or bonanza, and they took it for granted. They focused on the redistribution of it or the perpetuation of it, but they took it for granted. And what the book shows is that wealth and growth are not to be taken for granted; that you can slow growth through government policy or individual behavior, so bonanza is the theme throughout. It suggests that an emphasis on redistribution is probably ill-advised because then you have less to redistribute.

Richard Reinsch: Because I was reading that chapter and thinking about the word confident and use that word in the introduction, that a confidence drives this period, drives the policy making period. The reaction, you talk about confidence.

Amity Shlaes: Confident, yes. They were very confident, and that, I think that’s similar to now because people think that it’s also our God-given right to see the Dow Jones Industrial Average of the S&P go up forever. Confidence, right? It’s the money’s there, the dollar is king no matter what we do. So that’s very interesting.

Richard Reinsch: The contrast though would be with your earlier work, Coolidge, because you note that Coolidge begins with thinking intensively about not wealth, but the absence of it and how one could, in grasping for it, come into ruin through debt. And so you thought about frugality, you thought about work, you thought about careful living. And yet, now we’re in this period where riches themselves seem to have overwhelmed more realistic concerns.

Amity Shlaes: Yes. Coolidge was a cautious man. He didn’t believe you should leverage yourself to the hilt. He didn’t believe in taking an unnecessary risk in any area of life, not just materially. He believed in holding back. Given the choice between a possible good and doing nothing, he would sometimes do nothing because he would say with the possible good may come an unknown bad. Rather interesting.

In the ’60s … let’s go back to the ’20s. In the ’20s, there was the sense that America had to earn its status as super power. It was a temporary, acting super power at the end of World War I, but its predominance was not assured or rated as necessarily permanent. It wanted to become the permanent super power, so Coolidge and his Treasury Secretary, Mellon, pursued policies to that end, which included balancing the budget. Any day, the dollar could go down and sterling could go up. That sterling had been the predominant currency in the 19th century, why shouldn’t it be again? If our policy was too foolish, we’re too foolish, then England would prevail and our dollar would lose. So Coolidge was protective, prophylactic, cautious.

And, then, I do cover the 1930s in Forgotten Man, and in Forgotten Man you have a call to a collective effort by Franklin Roosevelt and even Herbert Hoover before him, and that call is different because it’s in the face of want. One in four men was unemployed in 1932. Too, we have something in the ’60s much more similar to today. We’re all doing pretty well, but we’re not happy with all the result. We want to go from good to great. So this period is unusual in that we feel super rich. I’m trying to think of another period like it. But we feel pretty rich; we just feel everything isn’t quite fair, which is different from people are starving. You can argue people are starving, but it’s hard to make that argument today, some attempt at it.

Richard Reinsch: Something that I brought up earlier, so I said maybe the wealthiest generation in American history, the Boomers, I guess it would be early Boomers who drafted the Port Huron Statement, 1962. You include that in the second chapter as a way of thinking about the Great Society, but what’s the connection there?

Amity Shlaes: Well, we’re speaking of idealism, so the kind of Earth Day or Woke Day or Global Warming Day that you would have now was a historic meeting on Lake Huron, or in Port Huron, which happened also by the way to be the childhood dwelling of Thomas Edison. Anyway, in this otherwise unknown town, a bunch of students came together and this is a mythical story in popular cinema; the references to the Port Huron Statement of “I participated in the Port Huron Statement. I was there,” because the people who attended, some became legendary later. And the statement itself, when you look at it, is kind of benign and rambling. It looks like a C-grade essay, undergraduate paper about the future. It rambles all over the place; has a few good ideas, but not coherent. And it was written by a group.

Nonetheless, some of those people went on to, basically this was the time of the formation of Students for a Democratic Society. Tom Hayden, one of the leaders of the group, went on into the violent period of SDS, and the Yippies and so on. So this is where it got its start, in a kind of benign student meeting; meeting for all students, activists coming from across the country in their little cars; talking about this and that; really trivial stuff like what time a boy must leave a girl’s dormitory; remember, this is the early ’60s, not the late ’60s; at night.

And I tried to describe this because this was the left idealism basically, there were some libertarians but it was a left idealism. And what’s interesting is the attendees didn’t imagine they’d get anywhere, and yet pretty soon, some of their ideas were being implemented as policy by the Johnson administration. It was sort of an accident, but the Johnson administration had left after Kennedy, so Michael Harrington, a socialist who’s one of the characters, actually got into the office that formed the new poverty law, the Office of Economic Opportunity. He worked with Sargent Shriver, the poverty tsar.

So that went from sort of meaningless, goofy students to meaningful participants in society in the ’60s very fast. And the surprise for me in writing this, oh the students went there and I always thought they were very independent. You know, and they got together. And this was away from the establishment, that was the point. What I learned in the research for this book about Port Huron, imagine dumpy cabin files with students staying up all night smoking, writing paragraphs and reading them to each other, was that the event was more or less funded by organized labor.

The camp itself, Port Huron, which is also called Four Freedoms after Roosevelt, was owned by organized labor. And how did this all happen? The University of Michigan is in Michigan, where the UAW, the mighty, mighty United Auto Workers were. One of the Michigan undergrads, a young lady names Sharon Jeffrey, was the daughter of the aide de camp of Walter Reuther, the head of the UAW. And you can imagine this from the point of view of the UAW, they say, “Well, a lot of people seem to be going to college these days. We’re an industrial union, but we appreciate college, and we certainly want 10 million peoples’ worth of union dues to flow into our coffers; and we want to be the future, we don’t want to be just a bunch of has-beens old workers. We want to capture the young generation, so we’ll likely fund a student movement.” That was the thinking, you know.

And they were to be, if they had the wrong ideas … because the UAW and the AFL-CIO at that time were not communist. They were bitter enemies of the Soviet Union and the Soviet regime, but they had social/social democratic ideals. And one of the problems with these young people, one of the early fights was that the Port Huron statement was insufficiently anti-Soviet for the unions’ tastes. And they didn’t want to get in trouble, either, so you imagine this whole thing; they’re funding these young people, they’re giving them a long leash. I tweeted on check that went out to paper; Tom Hayden, the legendary progressive left leader, and I just didn’t realize until I researched in the Wayne State library and so on to what extent the union funded the student movement, and what a kind of frustration that must have been because the left student movement handed the 1968 election to Richard Nixon, who hated labor more or less.

So the unions who funded the young student movement hurt themselves through this funding in the bitterest of fashions that the union leaders felt totally betrayed by the students.

Richard Reinsch: Unintended consequences. That also-

Amity Shlaes: No, the first example of unintended consequence. Yes.

Richard Reinsch: I also want to get your perspective on what encompasses the Great Society? I mean, you talk about the War on Poverty in the book; you talk about the housing policies and then sort of this domestic policy front, but what else? Should we include the space exploration program? Should we include the Vietnam war?

Amity Shlaes: Well, Johnson defined it: classrooms, countrysides, cities. Those were his three areas for a Great Society at that Michigan speech, where Walter Reuther was there at the end to thank him for giving it, by the way. So they were going to have efforts to improve education, and we have a number of laws, some of which helped created our student debt problem; university funding, K-through-12 funding, that came out of the Great Society. The very first component was something called the Office of Economic Opportunity, which was the poverty obliteration office led by poverty tsar, Sarge Shriver. Countryside, there was a program, a hillbilly elegy program we would say on funding Appalachia and the extreme poverty there. Michael Harrington, the author of a book called The Other America, about poverty, and he had great thoughts about Appalachia. So Johnson promised to cure poverty, not to create a palliative, but to cure it …

Richard Reinsch: To cure it?

Amity Shlaes: And then like any project, Great Society or any of them, Great Society morphed, and one of my thesis is that Nixon, a Republican whom we would expect to be different, and was different in attitude, actually ended it for political reasons of continuing the Great Society. For example, he expanded or permitted the vast expansion of food stamps, so it was just a bigger state.

I think you’re asking about civil rights, and what’s interesting there, and you really picked it up, is at first the Great Society was about equality of opportunity. That’s pretty clear. That didn’t seem enough to Johnson, so he asked after Michigan, at Howard U., in another commencement speech, for equality of results. That was an official call for a lot of programs we know of now, whether in business or affirmative action, or, or, or … And that was a shift with which everyone was not comfortable. So you have a society where, in 1961 when he’s being inaugurated, Kennedy says, “Ask not what your country can do for you; ask what you can do for your country,” to we’ve got to help everyone. We owe you, which is what it became by 1966 or ’67.

And later in the period, the courts cooperated very much. For example, there’s a Supreme Court case I describe called Goldberg v. Kelly, that basically said welfare is property. It’s your money and you are super entitled to it, not just entitled. It’s property like a patent that you wrong when you had an invention, so you have a complete switch in what individuals in their society within 10 years. It’s dramatic.

Richard Reinsch: Is it also thinking about, I suppose Vietnam; you talked some about McNamara, it was even the way that war was fought at times; sort of the technocratic approach to it that somehow there was a strategy in a way to pursue it without actually fighting a typical war of holding ground or removing the enemy? But you could conceive of it I guess in a more tactical, precise way.

Amity Shlaes: Yes. So there’s The Best and the Brightest was the book by David Halberstam that shows what fools the planners of the Vietnam war were. And Max Boot has written about this very persuasively, too. McNamara had an idea about bombing and how it might work that didn’t correlate to reality. It just correlated to his spreadsheets, and that was part of the insanity of Vietnam. Here he was fighting against guerrillas as if they were the German army with tanks, and I always thought The Best and Brightest, that was about foreign policy. But what you discover when you look is we had the same high appreciation of intelligence, technocracy, and planning; long live consultants, long live business school graduates in domestic policy. And some of the characters carry over.

McGeorge Bundy; McNamara, who after being Defense Secretary, failing as the Defense Secretary, went over and was equally foolish and also tragic in his result at the World Bank. And one thing McNamara did gives you a good idea, I noticed this because it just blew my mind, no respect for some other space, whether it’s the local space, the regional space, the state space, the space of face; no respect for any of that. So McNamara, because he was a numbers person, figured out that if there were fewer people, maybe more resources would be available. That was his answer to scarcity.

And so he was for zero population. Okay, whatever. And there were others like that, but where did he choose to deliver an address on this? At Notre Dame.

Amity Shlaes: So that kind of insult that you have to work hard … I mean, it takes a lot of talent to be that insulting, and he was.

Richard Reinsch: So he was that arrogant?

Amity Shlaes: Yeah. That arrogant and that insulting to not see what damage he might do, what offense he might bring, by arguing for birth control and zero population in front of the Catholic Church. You know, that’s not the only example but he’s kind of almost like Asperger-y, that people who have diagnoses now. He did not, he was so smart, he did not pick up stuff. And the tragic part was, the government used and applied his policies or the World Bank did. So you think of something like the sterilization of men in India, that came out of the mindset that McNamara shared. Less people, better. We distribute resources, and resources can’t really grow because by the way, we’re socialist, right, so we slow production.

Julian Simon and Paul Ehrlich are also characters. Those were the two opponents; one who believed that the world would run out of everything, Erlich; and the other, Simon, that growth would make life quite pleasant and more efficient in the future. And of course, mathematically Simon won that, but in the time of my book of Great Society, it looked like Erlich might.

Amity Shlaes: And there’s also something called the Club of Rome.

And that believes in zero growth, I guess it shows that first you aim for great, then you become profoundly pessimistic.

Richard Reinsch: So let me ask you this. We’ve been talking about sort of the intellectual architecture of the Great Society. Criticism of your book in the New York Times earlier this week I think, Binyamin Applebaum said why didn’t you include in your book more of a description of Medicare, Medicaid, food stamps, and Head Start, if I’ve got it all, which he says were enormously beneficial parts of the Great Society, and I’m curious what your response is.

Amity Shlaes: Well, I tried to do the book in real time. And if you imagine to write the way they felt, and then we know what the consequences are, right? So what were they thinking to create a giant program like Medicare, which is worse in terms of our obligations and shortfalls in Social Security, which we tend to think is the biggest program of all. Well at the time, and this is another example of unintended consequences, I don’t think they thought that much. Here’s what was in Johnson’s mind, and you can see that because he went to sign the healthcare amendment; there were amendments to Social Security; with Harry Truman, who had failed to get through some sort of nationalized healthcare in the past.

They wanted to honor Truman and say I’m doing what, something of what you thought healthcare for seniors and poor people, but basically Johnson wanted to honor Truman and bolster his party, one. Two, the war was on and Johnson wanted to throw poor and old people a really good bone because hundreds of thousands of young men were going very suddenly to southeast Asia, and some dying there. Three, he’d never imagined they would be as big as they are. So I think the New York Times review by Applebaum was a little Whig version of history; that is, it’s looking back with more knowledge than we had at the time.

In Johnson’s time, old men were dead by the time they were 70. They didn’t live ’til they were 90.

Richard Reinsch: Yeah, that’s how the welfare state works.

Amity Shlaes: Right. So Medicare would work if everyone died very early, right? And Medicaid would work if the War on Poverty were won because there would be no poor people to claim Medicare. So this is another example in my mind of a real unintended consequence.

One of the amusing characters, and for me to say and they were wrong and it was the centerpiece of the Great Society is to misrepresent what they thought at the time of …

Richard Reinsch: And I thought as well that is there something new about, I mean with Head Start; but is there something new about those proposals, or as just as being long-standing goals behind the creation of a welfare state, versus what I take you to be arguing the Great Society, that there’s this policy innovation, federal government power thing going on that drives the Great Society, like Sargent Shriver. As I read, I’ve never read much about him until your book, and he really is an example of someone who means well. I mean, it just seems like he fundamentally believes in what he’s doing in national service in helping the poor, and is producing all manner of problems.

Amity Shlaes: Well, he’s an argument against social conservatism in politics because he really wasn’t a lefty. What he was saying was we must get things done that we normally do with the church, such as encourage marriage and help poor people by giving out alms. That can translate to government. The government is just a bigger charity, or it should be, and certainly we can afford that it might be. Therefore, I will do what I do at in my church at home, home and office in Washington 10,000 times larger. It didn’t work because you are cut off from your community because the federal government really can’t direct people to give up poverty and adapt a got-to-work ethic. It cannot direct how people marry or don’t. It’s just ill equipped for that, even now.

So if you’re a left conservative, sorry … if you’re a left big government person or a right one, you can take some sad lessons from Sargent Shriver. He was such a nice man, and you think his wife was … Well, they did the Peace Corps. He did that. His wife did Special Olympics, and he did Great Society. Which do we like the best? Personally I like Special Olympics.

Because it’s about what you could do if you try. The Peace Corps sounds nice, but it often terrifyingly naïve and sometimes hurts the places it aims to help. And the Poverty Office, Shriver was sort of foisted into the job by Johnson, had so many perverse outcomes and not at all he was intended, and it kind of ruined his career because Johnson, being an opportunistic rat fink, abandoned Shriver and sent him off to Paris to lick his wounds.

Richard Reinsch: So the War on Poverty fails? And just in general, an idea of domestic policy as a war, is incredibly dangerous.

Amity Shlaes: There’s a limit to what domestic policy can do. And in the book, what I try to give a sense of they tried; they failed at one thing, totally tried another thing, that failed; totally tried another thing, and each time in some way or another, the new way was more grandiose. It was always more, more, more, so the housing bill cost more than the poverty bill because it came later, and so on. It’s just more, more, more, and even more did not help or get you closer to great.

Richard Reinsch: So maybe we’re talking about this generally, talk about the sources of the unexpected tragedies of the Great Society. I think your chapter on housing was just, it left me truly sad.

Amity Shlaes: Well, you know the book’s about planning, so it actually starts in the ’50s to where our first ambition toward great involved housing. And we had urban renewal, which was premised on the idea that you should bulldoze whole areas of downtown and build utopian housing, hopefully in the international school, for poor people. And what that did was group poor people who may not have loved their tenement, but may have felt some connection to it and certainly chose which tenement they lived in within their ghetto at least, and put them all willy-nilly, more or less in tall skyscrapers, and insisted that the fathers in the family stay away because the families wouldn’t get welfare benefits or be entitled to live in subsidized housing.

These welfare specifics often. And in the institution that I profile is the housing projects, the largest called Pruitt-Igo in St. Louis, and there were a few premises, additional premises to Pruitt-Igo. One was that St. Louis would always grow, so if they packed these buildings dense enough, eventually people would move from poverty into working class and would be able to pay the rent. And if there were enough of them, the housing projects could support the poor and be concerned.

Well, the growth stayed away. And so the simple arithmetic of the solvency of Pruitt-Igo just didn’t work. There was way too much vacancy, and then bad gangs moved into the empty apartments or took over the halls, and there were too few tenants, too few working tenants and very few men to fight back those teenage and mobs, what’s become a sad cliché, right? So that’s what went on, and over and over again in the ’60s, including with Sargent Shriver and actually Romney, George Romney, the father of Mitt who was Housing Secretary, they tried to fix Pruitt-Igo, and the idea was always build something big or bigger; cars are important; streets, a pedestrian zone is not important; and we know what we’re doing. This is so much of a piece with the bombing of North Vietnam; it’s sort of like the … it’s a very similar bird’s eye view of a very specific place.

Amity Shlaes: And in the case of Pruitt-Igo, what I argue is big housing’s not a good idea. Sometimes small housing started by locals is much better. And the person I bring in here who economists don’t normally bring in, but I think she is Jane Jacob, who in New York protected Greenwich Village from the highway builder, the housing and highway tsar, the infrastructure tsar, Robert Moses. And she said, “What a minute. My street might seem tacky. It might be blighted. You could condemn it under Berman v. Parker, the Supreme Court decision, but I think it can un-slum. I think it’s on its way to un-slumming because people here like it.”

So she talked a lot about that, and she talked about the importance of architecture and houses with eyes. The International School might be fashionable again now, but it’s just profoundly isolating in terms of mentality. You know, it’s really collective. It’s not forgiving. it’s not everyone his own window; it’s a common space. Modern architecture was a disaster in terms of poor people because it isolated them in tall buildings and put parks around with no commerce.

In Jane Jacobs’ The Death and Life of American Cities, it’s still a prophetic book; very easy to read by the way. I recommend it, the audio, about how neighborhoods can cure themselves and how you actually are doing malpractice surgery when you roll highways through. Not everyone likes cars; even some Republicans are pedestrians by nature. When we talk about this, I always hear from Republicans ‘Republicans like cars.’ I don’t believe that. I think some people are car people, and some people are go on foot people, and they’re for both parties.

Anyway, Jane Jacobs wasn’t of a party. She was really independent and very much opposed to the war by the way, but she’s this little lady, very good architectural journalist, but just one lady who led the fight against Moses, and really the fight against the Great Society housing. I want to mention one other thing. There was complete hypocrisy in terms of housing policy in the United States subsequent to World War II, and amplified in the [inaudible 00:33:28] period and ’60s period. On the one hand for the middle class people, we had this kind of Tocqueville policy, which is you go to a town; we’ll subsidize your house if you’re a veteran or in some other way through Fannie May and Freddie Mack, and you’ll get a house and you’ll become part of a community, and your children will play with the other children in the cul de sac, and you will go to church together. That’s kind of the middle class of City Vision.

So the middle class people get Tocqueville; the poor people get Karl Marx. You will live in a tall building in a city, and then as an anonymous worker, you will get into an anonymous tram or something like that, and ride to your factory, which by the way hasn’t materialized because that’s what workers like. And you have to ask yourself what would have happened if we had done Tocqueville for poor people as well. This idea dawned on planners by the end of the ’60s, and you see that led by Chuck Percy, the Senator from Illinois. And by some people’s names we know such as Clifton Muse and John McLowry. They worked on housing policy that would help enable poor people to buy homes and get property.

So the real debate for us is do we think property is necessary in the Tocqueville vision, and I would say absolutely. I don’t believe renting or defensible suffices unless you’re in a very strong community where, a religious community say, where the management, the leader of the church rents. I believe individuals should own their property. Jane Jacobs didn’t go that far, but her data did. And the real tragedy was that we condescended to poor people with this tacky, ill thought out, Marxist policy in terms of housing.

Richard Reinsch: I guess, listening to you I was thinking about, which a lot of conservatives rejected later in the Obama administration, I don’t know if this’ll be an example of that whereby it was proposed policies of moving say urban poor out of inner cities or downhill cities, and moving them into, out into suburbs, surrounding suburbs. I wonder if that’s maybe an example.

You also noted the Detroit riot, that it started at the epicenter of where people had been relocated once the neighborhood had been destroyed.

Right. There’s a wonderful … I mean, you’re saying that the Obama administration recommended moving poor people out of cities?

Richard Reinsch: Out of cities and out to …

Amity Shlaes: Is that what they did?

Richard Reinsch: The recommendation was that. I think Ben Carson canceled it, but the idea was you had to move them into surrounding towns and into homes. Yeah, thinks like that, but I’m not actually an expert on the policy.

Amity Shlaes: Well, we do have a policy. Now we have basically rental vouchers, which came out of this period which gives people more choice. They can take their money and go look for housing that will accept their voucher, and they’re going to make sure there is such housing. But the idea of moving people en group outside of cities is crazy.

Richard Reinsch: Well, the cynicism there, too, is then you would move wealthy people probably back into the land they left and you would have a …

Amity Shlaes: You move … right. So they move them to some safe place like Ferguson, Missouri. That’s really safe for Michael Brown. This is the young man who was shot in Ferguson. Misery doesn’t care where it lives, and sometimes misery does better in the city. So there you are. I don’t know. I don’t think the suburbs are any better or worse. Sometimes they’re worse because you need a car. So there we are.

Richard Reinsch: Well, Watts and Detroit, so we have the Great Society programs being implemented, and then we get riots. You have a chapter on these events, and mayors in your book report being very fearful of protests and riots breaking out in Los Angeles and other cities throughout the country, and yet we’re the cusp of this vast revolutionary pro-government change.

Amity Shlaes: Well the standard history of the period is there was nothing, and then the federal government came along and did something for poverty. And what that history overlooks is the entire tradition of towns dealing with poverty in their towns. That was the scope of the town, the municipal authority, or maybe state as we discussed, but not really a federal job. So when the Johnson administration came through, it sent sort of virtual bulldozers to run over policies of mayors and towns. And you know what, the mayors were elected to take care of the town, so they had the reasonable claim to authority here.

Amity Shlaes: And I always learned that Mayor Daley of Chicago was a corrupt creep, right, and that Mayor Yorty of Los Angeles didn’t care about poor people, and none of this was true. What happened was you have a jurisdictional clash. The mayors had poverty programs, and if they were Democrats they expected to get federal money for them. They had helped to elect Johnson; they deserved poverty money. They had a poverty office. Mayor Daley took all his poverty ideas and put them in a big box, and mailed them to the poverty tsar, “Here’s what Chicago, what your appropriation should be for, my Chicago plan. Yours, Richard J. Daley.”

But Sargent Shriver and the administration, that would be the Johnson administration, didn’t think that way. They wanted their own poverty programs. They wanted to be like the Peace Corps going in, ignoring all jurisdictions, all government, all past, church, everything, and do their own thing, and so there was a real clash. And in the case of Los Angeles, this is kind of the sense of federalism. It’s a federalist uprising by the mayors. But in the fight, Los Angeles didn’t get the money Mayor Sam Yorty was expecting to get, and he had promised a lot of jobs to young people over the summer. And the fight between Mayor Yorty, who wasn’t wrong, and the federal government, which was more wrong but not entirely, delayed help for Los Angeles, froze the city, and contributed to the explosive environment in which the Watts riot occurred.

It’s not as though … what happened was Yorty said there will be jobs paid for by the federal government. We will give you a great summer. I’m not saying I approve of that because the government does that, but he established that expectation among the citizens of Los Angeles. And then when the presents did not materialize, the people were all the more, became all the more cynical and angry. In Detroit, what happened was slightly different and that was later. In Detroit, one reason there was so much anger in Detroit was that sort of delayed built up anger over urban renewal. The whole community there was still angry over being displaced, their favorite streets being mowed over by these bulldozers, and the newspapers commented that at the time.

Mixed in there is the selective service, going to Vietnam, the switch to higher skilled jobs that come as the economy develops. Muscle, there was less of a premium on muscle and more of a premium on training or thought. Even in the 1960s, there had been the [inaudible 00:41:39], so what’s going to happen. But these were all factors.

I was just going to say I ended up liking the mayors, these mayors I always thought were so awful. But they were like, “We don’t want any Marxists coming in our city. We have our own poverty plan and here it is.” David Beito has written a wonderful book, which I’m sure you’ve mentioned on your show, called Mutual Aid to the Welfare State, about all the places and institutions existed in a kind of incomplete but rather extensive patchwork across the country that was Tocqueville’s America, so you’d have the Italian-American burial service, the Irish-American family insurance, the church. It didn’t mean everyone was always taken care of, but a lot of people were and there was a plus because it was by the community.

Effectively, a community can always serve its people better than someone far away. It’s very rare for someone far away to guess that your school needs a gym, not a computer, and you think a gym would be more important because you happen to have 20 computers. Someone in Washington is terrible at judging that, so there are very few examples. In the book, I kind of make the call that if eight percent of the people who are black can vote in Mississippi, there’s something wrong with that; more the people of Mississippi should be able to vote. So maybe the Voting Rights Act and the Civil Rights Act were necessary, but not the laws after that.

Richard Reinsch: Thinking here also, you know the Great Society spreads across the Kennedy, Johnson, and also the Nixon administration. We get in the Nixon administration, Daniel Patrick Moynihan emerges and the family, what comes to be called the Family Assistance Plan and something like a guaranteed income, which is now in vogue again, but we get a forerunner of that, a taste. And then you know Moynihan loses a lot of these battles, but how does this and this seems to me, part of your book that I thought relevant, and is particular the discussion of this Disraeli, Benjamin Disraeli idea of conservatism, of sort of a one nation conservatism; a conservative party that also serves the working class with policies, et cetera, et cetera, and so that’s how Nixon continues in many ways the Great Society, among other ways.

Amity Shlaes: Yes, Nixon was a conservative who continued the Great Society. I don’t think that reflected well on him, unfortunately, in the end. What happened with Moynihan, very current, similar to the guaranteed income idea you’re hearing about now, what conservatives and progressives got together and said this idea of providing services to the poor people hasn’t worked out. We’re feeding the horses to feed the sparrows, the horses being the welfare workers; that is, the bureaucratic establishment to serve the poor gets more out of our programs than do the actual poor. So let’s give the poor money; that seems more honest. And that idea has great appeal today, and in Friedman’s concept this was what’s called a negative income tax, where you get money back for working so you don’t lose a lot when you start working.

Moynihan had a very brave and bold effort to do something like this also for the working class, not just the poor. So for whites and blacks who are poor, not poor, he was going to do this but he didn’t do the arithmetic very well. Because what happens when you give people money back at the bottom is pretty soon they have an income where they lose benefits; that is, their disincentive. And the marginal cost of working harder is far greater than they expect. All of a sudden they lose their housing, but what’s that worth? They lose four weeks, they lose Medicaid when they have too much money. And the arithmetic of which disincentives, which program costs in the context of also supplying people with money is almost impossible to do.

As Friedman said, probably we’d have to get rid of all payments in order for a universal payment, all other programs to quote-unquote, “work.” I think the more profound argument against guaranteed income is it teaches people they’re entitled. That’s a terrible thing to do for young people; that you’re owed something every month. That is just, that’s what gave us the problem we have now; the infantilization of our society through a social democratic effort, through parents, through the healthcare program and so on. People need to think they’re independent and they’ve earned money, so that’s why … That’s what Congress, particularly this Senate, had against Moynihan’s program. They said, “Some of us are Republicans and some of us are Democrats. And some Democrats and many Republicans think that it’s a bad precedent to just pay people money for existing. We’ve done too much of that, not too little, so let’s cut back.”

Richard Reinsch: It’s like Social Security.

Amity Shlaes: Yeah, it’s like Social Security for all, not just old people or disabled people, or widows and orphans, and so on. And it was very expensive, too; that’s the other thing. But the Senators said this is not particularly American, let’s not do it, and Moynihan lost and he had to go back to … he was this great intellectual this was before he was a Senator and he went back to Cambridge, and the war was part of the story, too.

I will say the grandest kind of planning is at the end of the book, and I do want to get to that when you’re ready.

Richard Reinsch: And we can do that now, then also I was going to end with Reagan because you have a chapter on the Governor from California, and sort of what do you think he’s learning from this. And I think also your book the questions he learned through governing as Governor of California as well, which as you note in the book, it’s not just a recent thing. California has a long-standing history of being a powerful government and being depended upon or interacting with the federal government, so if can just end with all of that.

Amity Shlaes: Right. Let’s say two things. One is, what’s the planning behind the planning? Which says we can micromanage the economy through the Fed and the administration, and maybe with Congress. And there’s the fiction there, the pretense that every twist and turn we can address … I mean, they used to have ideas such as changing Social Security payments to be cyclical, so when the economy needed a boost you’d get more Social Security money, and when the economy didn’t need a boost or you’re afraid of inflation, you get less money. Can you imagine what kind of abuse of trust that would feel like to a pensioner when they get a letter saying this month your Social Security is less because the economy needs it to be less of that money, because otherwise … and of course.

Anyway, so they really thought they could manage the economy. This was the era of change, and in the book I tell this story about how even if that did work, it would be impossible because people are people, and they’re humans and they’re political, and no planner runs the U.S. alone like the Wizard of Oz. It’s always a compromise. So the story I tell is of Richard Nixon, who’s supposed to be a free marketeer, imposing a terrible economic program, the Camp David program in the summer of 1971, something worthy of Juan Peron, upon the United States in the name of winning reelection. And the struggle in that case was between him and Arthur Burns, the Fed Chairman, who knew better, sort of kind of recalls the President and Fed Chairman Powell today or also Johnson and William McKinsey Martin, his Fed Chair.

Anyway, Nixon wanted to kill Burns that Burns wouldn’t lower interest rates, or lower them faster. He certainly wanted to kill Burns when Burns raised interest rates.

The Fed Chairman went to the White House’s church services on Sunday; one of Burns’s weaknesses here was he was ethnically Jewish. I don’t know if he was a religious Jew or not, or what he thought his religion was, but he had a Jewish background. And Burns would go to these church services. Why? Because you need access to the President if you’re Fed Chairman from time to time. And on the Friday night, Saturday night before the church service at the White House, Nixon would get up one of his people, Haldeman or Erlichman, to call Burns and say you’re not invited to church, because he’d been a bad boy. Your monetary policy is too tight, and even also went os far as to plant a smear of Burns in the Wall Street Journal, which I read about.

So anyway, the net was Burns went along with a policy that gave us terrible inflation, smaller houses, two fewer bedrooms than we otherwise would have had because of interest rates that were 15 percent in the ’80s. Those were the interest rates. It’s tough to suppress the inflation that Arthur Burns permitted because he wanted to stay friends with Richard Nixon. Just like that.

So, human error, human temperament, human weakness is a big part of the failings of the best and the brightest. McNamara was sad because President Johnson didn’t like him, so he cuddled up with the Kennedys. That made Johnson dislike him even more, therefore his policy was very poor, and so on. It’s not just this fiction that there’s one government running policy. It is, indeed, fiction; usually it’s a bunch of personalities with competing theories.

Richard Reinsch: And fiefdoms.

Amity Shlaes: And we all have to live with the compromise result; the perverse compromise result.

Richard Reinsch: So Reagan at the end here, he seems, he’s a part of your book and he’s learning dramatically from what’s going on. You see him as a I think someone who’s part of this opposition, forming opposition to the Great Society at an intellectual and then a political level.

Amity Shlaes: Right. I mean in a book, a book is like a novel except you try to make the facts be facts. And in a period, there’s someone who’s like more like a drama, a theater play. There is someone who’s in the chorus or who’s the clown, who’s noticing what is going on and is a character. It’s halfway between audience and character. You know, he steps out from time to time and comments. You know, who is the commenter at the end of Romeo and Juliet?

So there are two characters in the book who are like that. One is Moynihan, who gets … Nixon gets the better of him unfortunately. He was a nice man with a lot of original ideas, and spoke truth to power, and the other is Reagan. So Reagan starts out very low in the book as a kind of has-been, and I do talk about his company, which is one of those companies that did take the country to great, General Electric. And at GE, Reagan learned all about free market because GE had a current little propaganda mill to teach its workers that there was more to the world than Karl Marx, and they could one day own three refrigerators, and even who knows what; a pink radio, a really good car.

So they hired Reagan, who was a has-been actor, to learn all about capitalism, and then teach it at their plants over, you know, in the cafeteria practically. You know, not very glamorous, but he went around the country, spoke in hundreds of hundreds of backwood halls and lunchrooms about the merits of capitalism and the young to middle age factor; not really young. And he happened to kind of internalize the GE argument, which he learned from a forgotten figure named Lemuel Boulware, and also from books we know today that are in Liberty Fund’s Library; Hayek, and so on.

Amity Shlaes: And what was Reagan going to do with this? He parted ways not too happily with GE for a bunch of reasons, including GE’s own hypocrisy. What’s he going to do with it. Well, he decides he’s going to try out politics and he gives an important speech, Time for Choosing, in 1964 to support Barry Goldwater. It doesn’t get Barry Goldwater elected, but it does show the country what Reagan could do. And then as Governor of California, he confronts the results of the Great Society, including for example gangsters in courtrooms shooting a judge.

Or kind of … Or the Great Society’s office, the poverty tsar’s office, the Office of Economic Opportunity sending lawyers to California on its dime to sue Reagan, whose obligation by the way as Governor is to balance the budget, to make it impossible for him to balance the budget with class actions demanding payments for people. So he kind of gets disgusted with the Great Society along with the country, and that shapes his policy program, and that’s the Reagan that we got; someone who learned a bitter set of lessons from the Great Society.

Amity Shlaes: And I never really knew that. I never knew much about his gubernatorial period. Remember, too, that California’s growing in that time, and it kind of didn’t want to hear from New York. It’s surpassing New York, right?

I call it the Creative Society, is what he … He doesn’t want a Great Society; he used the phrase creative. So it’s the Creative Society versus the Great, and he has a great appreciation, Reagan does, in this period of entrepreneurship, even though I have zero evidence he understood the potential of Silicon Valley.

Amity Shlaes: He did generally appreciate entrepreneurship. So there we are.

Richard Reinsch: Thank you, Amity Shlaes, so much for your time. We’ve been discussing your new book, Great Society and New History. I wish you every success.

Restless Amidst Prosperity and Freedom Jul 15, 2021

Richard Reinsch (00:19):

Welcome to Liberty Law Talk, I’m Richard Reinsch. Today we’re with Benjamin Storey, talking about a new book he has co-authored with Jenna Silber Storey entitled Why We Are Restless: On the Modern Quest for Contentment. His co-author, also his wife, Jenna Silber Storey couldn’t be with us, but Ben will do a great job talking about the book. Ben is the Jane Gage Hipp Professor of Politics and International Affairs and is the director of the Tocqueville Program at Furman. Jenna Silber Storey is Assistant Professor of Politics and International Affairs, and Executive Director of the Tocqueville Program at Furman University. Ben, we’re glad to have you on the program.

Benjamin Storey (01:00):

It’s an honor to be here and talk with you, Richard. Thanks so much for having me on.

Richard Reinsch (01:04):

Excellent. So, I’ll just ask you a straightforward question here: why are we restless?

Benjamin Storey (01:10):

Well, thanks for the question. It’s obviously prompted by the title of the book. Your question requires a two-pronged answer. In the first place, human beings are naturally restless. Saint Augustine famously remarks at the outset of the confessions, that our hearts are restless until they rest in God. And so in some ways, restlessness is a permanent part of the human condition. But the restlessness that we’re trying to trace in this book is more specifically a modern kind of restlessness that is a restlessness that springs from trying and failing to make one’s self content within the confines of imminence, that is trying to make one’s self content in the here and now. And we think that one of the things that defines modern life, is the widespread attempt to find happiness in an imminent way, an attempt that we keep trying to consummate, but that’s a project in which we continually fail. And so those failures to find happiness in this imminent way, that failure gives rise to the kind of restlessness that we’re describing in this book.

Richard Reinsch (02:32):

You mentioned, or you’ve discuss at length I should say, four figures: Montaigne, Pascal, Rousseau and Tocqueville. Maybe we’ll just try Montaigne here. Who was he, and how does he contribute to this sort of predicament?

Benjamin Storey (02:47):

Yeah. Montaigne is the first figure that we deal with in the book. And Michel de Montaigne is a 16th century French essayist, he’s the father of the literary form known as the essay. That is, nobody ever called a piece of writing an essay until Montaigne did so. He lived in the midst of France’s wars of religion, which lasted for most of his adult life, second half of the 16th century. And he looked around him, at his contemporaries who were ready to kill one another over the meaning of pronouns, different pronouns in their time than the pronouns that we get worked up over in our time. They were worked up over the pronoun “hoc,” that is used in the Catholic mass at the elevation of the host. They were worked up over the question of whether that “hoc” was to be taken literally. The [inaudible 00:03:43] was at the heart of the quarrel over transubstantiation. That is so much a part of the Catholic Protestant divide. So, Montaigne’s contemporaries were ready to kill one another over these kinds of questions about the transcendent. And he looked around and said, we need to lower the temperature a bit. And so, Montaigne made a very powerful case for skepticism, and particularly for skepticism about the question of the summum bonum, of the highest good, of that good which would make a human life worth living.

He said philosophers have been arguing about this for centuries, they haven’t come up with any consensus answers, and so we should just stop asking. That is, Montaigne makes the case that it is possible to live a good human life with a kind of indifference to the question of the highest good. And that that way of seeking happiness, is what we call the quest for imminent contentment. And the happiness Montaigne celebrates, is a dabbling kind of happiness. That is, instead of asking is philosophy going to make me happy, or is religion going to make me happy, or is citizenship going to make me happy? Montaigne does a little of everything, but he does it all with a light touch. So for example, he reads, but he tells us that he doesn’t like the heavy stuff, Plato and Aristotle. He prefers lighter authors like Plutarch and Ovid, his version of light might be a little different than ours. He travels, but when he travels he doesn’t go with the ambitions of an explorer, or the aspirations, the piety of a pilgrim, he’s just taking a look around. And Montaigne says this kind of nonchalant existence, in which we enjoy all the pleasures and pursuits available to us, but don’t make too much out of any of them, this is the true way to happiness.

Richard Reinsch (05:41):

It’s interesting you mention Plato and Aristotle, he didn’t like reading them. As I read your chapter on Montaigne, it seemed to me it’s not just he’s rejecting Christianity of his period, he seems to be rejecting the bulk of the Western tradition. Insofar as the classical philosophical tradition, and also biblical religion, calls you out of yourself, calls you after a third principle, something that transcends you, that’s before you, that lives on after you. And it’s just real, and you are supposed to understand it, participate in it, perhaps conform to it, and he’s rejecting all of that. So what then, help us understand what does he really think that these motives we have, these desires, quests, thoughts, where are they going to go?

Benjamin Storey (06:30):

That’s a terrific question. I want to concentrate on the first part of what you’re saying. And I think you’re right to sense in Montaigne a rejection of the whole classical and Christian tradition. At the same time, he of course inherits and transforms elements of those traditions. And one element that he inherits and transforms, is the quest for self-knowledge, which Socrates so famously dedicated his life to. But Montaigne does this fascinating thing. For Socrates, the quest to know one’s self is a quest to understand human nature, and the deepest aspirations of the human soul. And Montaigne says, “I’m not really interested in the question of man. I’m interested in the question of me.” And Montaigne lived in an era in which there was still a taboo weighing on writing in the first person, and writing about one’s self. And in the course of Montaigne essays, he violates that taboo about 8,000 times, which is roughly the number of first person pronouns that he uses in the course of this book. So, he writes as he says, entirely about himself. And so, he thereby transforms the classical quest for self knowledge. It’s no longer knowledge of man, it’s knowledge of me. And Montaigne makes this into an act of a kind of modesty, “I’m no longer to ask the pretentious question, what would make a human life worth living? I’m going to ask, who am I, Michel de Montaigne, in my distinctive individuality?” And so, the modern focus on distinctive individuality is very visible in Montaigne.

And so, I think with respect to the second part of your question, the question of where these longings for transcendence, for things that are real and outside of ourselves, where that goes, Montaigne seeks… I think he had that longing in himself, but he seeks to bring it back around to himself. He seeks to attain it, to circumscribe himself is the language that he uses for this. And so instead of imagining that, for example, erotic desire should take us off to contemplate the form of the beautiful, as it does in Plato, Montaigne says why can’t it just be what it is? Why can’t a desire for a beautiful body just be a desire for a beautiful body? And so in this sense, Montaigne is trying to tame, or block every entrance you might say, to the concern with transcendence as it shows up in human life. He says what we need to learn to do is be at home, be at home in this world, and he thinks we can do that. The great literary, literary critic Sainte-Beuve, commented about Montaigne that what this book, his essays is really all about, is a presentation of nature complete without grace. He thinks if we learn to tame these longings, to bring them back to ourselves, we can be content in the natural world without any help from anything above or beyond it.

What is common to Montaigne and the bourgeois existence is that this is somebody who makes the self centered life that we associate with contemporary bourgeois existence, he makes that kind of life attractive. So in this sense, I think you’re right that Montaigne is the precursor of the modern bourgeois.

Richard Reinsch (09:38):

You guys argue in the book, he seems to have invented the self. And I thought that as I’m listening to you, I’m thinking, he said that he’s not into human nature, he said just me. He would also, I think, assume then that he is just endlessly interesting and fascinating, and should write about himself and we should learn from him.

Benjamin Storey (09:55):

A couple of points there. One, the self in French is le moi. And Montaigne, he hates abstractions, and so he’s not going to coin an abstraction like that, le moi, the me. It’s a strange thing to say. But by talking so much about me and not moi, he helps legitimate it as a subject. And Blaise Pascal will come along after Montaigne, he doesn’t object to abstractions, and he will stick the le in front of the moi, and he’ll talk about the self. And he seems to be the first person in French to have joined these two terms, le and moi in this way, to create this French version of this notion of the self. And so yes, I think it’s fair to say that that Montaigne by talking about moi, about himself so extensively, helped legitimate that, helped invent the self or at least make it a legitimate object of study.

And I think most readers of Montaigne who encounter this guy, do find him endlessly fascinating. He had a rich and varied experience of life, although he doesn’t encourage us to read the classics, he read them all. And he can draw from that stock of learning with an extraordinary facility, to create a book that is endlessly engaging and charming. And so, if you want to see what the appeal of the modern self is all about, Montaigne is a great place to look, and he’s attracted a long train of readers for precisely this reason. That his, Montaigne’s essays are thought to have been one of the most widely read books in Europe, over the course of the 17th and 18th century. Everybody from Shakespeare, Francis Bacon, Rene Descartes, Jean-Jacques Rousseau, Friedrich Nietzsche, Virginia Woolf, all these people are steeped in Montaigne. And a little time spent with him will tell just about any reader why.

Richard Reinsch (11:50):

Do you think, so as we move through the book, one way to think about Montaigne is he’s actually, to my mind he’s sort of preparing us… I’m putting a lot into this, but he’s sort of preparing us for a very horizontal, bourgeois, consumer-driven society. That is, maybe the extent of your self reflection is in the mirror in the morning, but then you go off to work and that’s really where all your energy goes. And then you come home, and you kind of sink and rest in leisure of a certain kind. Not necessarily reading or thinking deeply, but just you’re so tired and you just sink into some diversion. Is there a connection there, the way Montaigne’s writing about don’t let your motives go vertical, just keep them horizontal?

Benjamin Storey (12:32):

Your sense that this is a horizontal portrait of existence is very right, and it’s something that we see also in the later thinker, Jean-Jacques Rousseau. The one thing that I would say is different about the Montaigne-ian of existence from the bourgeois existence that you just described, is that Montaigne was of course an aristocrat. And so he didn’t have to work, and so he spent lots of time reflecting on himself. But what is common to Montaigne and the bourgeois existence that you just described, and you’re right that Montaigne has been described as the first bourgeois, that this is somebody who makes the self centered life that we associate with cotemporary bourgeois existence, he makes that kind of life attractive. So in this sense, I think you’re right that Montaigne is the precursor of the modern bourgeois. And we see that this combination that I think you’re describing shows up in our texts, when we get to Alexis de Tocqueville, who sees what happens to Montaigne-ism when democratic peoples who have to work for a living try to find their happiness in this way. It’s very much like the rhythm that you just described, except that it is haunted by a kind of existential anxiety that Montaigne at least tries to write out of his portrait of himself.

Richard Reinsch (13:49):

It seems to me too, you mentioned he’s an aristocrat and also incredibly learned, he’s drawing on a lot of thick traditions that come before him, and that have accumulated over centuries, Christianity, classical philosophy, also just do various aspects of being French, of a civilization that’s pretty rich, that’s going to give him a lot to reflect upon as he thinks about whittling in a way, or whittling it down to some concept of the self. That is to say, he doesn’t find himself in say, at a time like maybe our own, where there really isn’t a lot. There’s a lot of thin traditions around, and maybe there’s a desire to reconstitute things.

Benjamin Storey (14:34):

I think that’s right, Richard. And Montaigne’s text has been described, and there’s a book about Montaigne that describes it as a cornucopian text. There seems to be an endless amount there, in all of his reading, and all of his travels and all the experiences, that he can relate to us. One of the things that’s interesting about Montaigne’s way of talking about everything that shows up in his book, from people like Epimenides and Alexander the Great, to stories about his peasant neighbors. He tells us that he tells us everything that he tells us, so as to reveal something about himself. That is, he’s less interested in things outside of him, than he is in the reactions they stir up inside of him. And that’s the way in which this book that seems to be about everything, is ultimately all about Montaigne.

Richard Reinsch (15:23):

Let’s move on. The next thinker discussed in the book is Pascal. How does he answer Montaigne?

Benjamin Storey (15:30):

Well, Pascal’s a fascinating figure, I think in the world of political philosophy that you and I both to some extent inhabit, I think the two later thinkers that we deal with, Rousseau and Tocqueville are pretty well-known. Montaigne and Pascal are less so, and Pascal perhaps the least studied of all. And one of the things that we hope this book can help do, is make his genius something that is more commonly recognized and studied. Pascal was a astonishing polymath, who made world historical contributions in geometry with his work on conic sections and another problem called the cycloid, in mathematics by elaborating modern probability theory on the basis of what is this numeric sequence, it’s called Pascal’s triangle, in technology by inventing one of the world’s first working calculators back in the 17th century, which could add, subtract, multiply, and divide numbers of up to eight digits. He was a great physicist, who demonstrated the existence of the phenomenon of atmospheric pressure, to this day units of pressure are called Pascals.

Then Pascal jumped into literary and theological controversy with his provincial letters, which are these fantastic satires of the Jesuits who were at the time, the most powerful churchmen in France, and one of the greatest bestsellers of the 17th century. Then he wrote his Pensées, which are on the one hand one of the greatest works of Christian apologetics of the modern era, and perhaps of Christian history as such, and also generally acknowledged as the first work of existential philosophy. And then Pascal created the world’s first system of public transportation, the five cent carriages for Paris. He did all this by the time he was 39, which is how old he was when he died. So the later French writer, Francois-Rene de Chateaubriand, has called him a frightening genius. And frightening is right, this is a terrifyingly powerful mind.

So Pascal, he captures in many ways the whole modern spirit, particularly in his physics and his conception of nature. In this sense, he’s very much a modern man, but he looks at Montaigne’s way of seeking happiness and he says, effectively, “You’ve got to be kidding. You can’t make the human soul happy by this kind of dabbling approach to the good life.” The human soul is both greater and more miserable than Montaigne recognizes. Pascal has a three-word phrase that I think in a way, sums up his whole anthropology, which is he says, “L’homme passe l’homme,” man transcends man. And I think that’s a very nice summation of his response to Montaigne. Montaigne wants to be at home in this world, at home in himself. And Pascal says you can’t do that, that’s just not what human nature allows.

Richard Reinsch (18:34):

You’ve talked about Pascal saying, “Man is a being of misery and greatness.” And if man is a being of misery and greatness, then necessarily he can’t be at home in the world the way Montaigne wants. But what did he mean by that, misery and greatness?

Benjamin Storey (18:50):

So, I think maybe one of the most famous lines in Pascal is the best way to talk about this, Pascal describes man as a thinking reed. And what he means by that, is that human beings are as fragile as reeds, as blades of grass, “A drop of water can kill us,” he tells us, something that we in the coronavirus era are all too aware of. He said we’re as fragile as anything in nature, at the same time, we have these uniquely powerful minds which can think thoughts as vast as the word universe. If we think about it, as far as we know the universe never thinks anything at all, but we do. And in this sense, we encompass the universe with our minds. And so, our thought is our greatness, but our thought is also the source of our misery, in the sense that insofar as the human mind can think a thought like eternity, we are aware that we are cut off from that. We are aware that we’re mortal. And we can’t help being miserable in the face of our own mortality, we can’t help hating the fact of our own death. So for Pascal, man is this kind of exception in the universe, in the sense that every living being is mortal, but man is haunted by that fact, and feels like it is somehow an injustice to his nature. He tells us that we all feel like we’re deposed kings, like, “I ought to be king, but there’s some other guy in my place.” That’s the human experience for Pascal.

Richard Reinsch (20:34):

It’s interesting listening to you describe that, because as I think about Montaigne and the motives going down, and Pascal says, “No, the only real way to make sense is if they go up, or they go up towards God, and you can find rest in God.” And I’m thinking there’s also a third possibility that Pascal probably understood, Montaigne probably didn’t. Those motives go down, but they go down with the grandiosity of God. And that is to say, one tries to perfect things that really can’t be perfected. One tries to perfect man, one tries to perfect politics, use science in a God-like fashion, things like that. There’s this interesting way in which that will come true in modernity, not too far after Pascal is ushered off the scene. Rousseau maybe helps us to think about that. But these possibilities are all there.

Benjamin Storey (21:29):

That’s very nicely put, I hadn’t thought of it that way previously, Richard. One of the things that Pascal and Montaigne share in common is their meditation on this character they called the demi-habile, the half educated. And Pascal sees that half educated people are constantly pointing out the insolidity of the foundation of social customs or political arrangements, and so they’ll constantly be noting that, oh, I don’t know, the electoral college doesn’t really do justice to the present constitution of population in America, or our penal laws need to be reformed in this way or that way. There’s a constant poking of the defects in our justice, and those defects in our justice are really real. What’s troubling for somebody like Pascal is I think exactly as you say, that when we limit our horizons to the confines of imminence, we’re deeply dissatisfied with the imperfection of all human institutions. And instead of turning that dissatisfaction towards projects of on the one hand, incremental reform, and on the other, of eternal hopes, we direct that restlessness into an unending project of social amelioration, which because it is unending never satisfies. We want a kind of justice that we can’t give ourselves, and we make ourselves perpetually discontent by seeking it.

Richard Reinsch (23:14):

Talk about a bit, Pascal and the Jesuits. In a way there’s a sharp confrontation there, what’s going on?

Benjamin Storey (23:22):

So, the Jesuits in Pascal’s times, Pascal lived from 1623 to 1662. And in that era, the Jesuits were the most powerful church men in France, I think there had been a long succession of Jesuits who had served as personal confessors to the French kings at this point. And what Pascal saw about the Jesuits, is that they were very influential in the upper reaches of French life, and the way in which they maintained their influence was by being what we call permissive moral authorities. That is, people look to them as moral authorities, as representatives of the church. And those moral authorities respond particularly to the attentions of powerful people, by letting those people do most of what they want to do, that is by giving them permission to get away with a lot. And this is a very powerful formula, this formula of acting the part of the permissive moral authority. This is a very powerful formula for advancement in life, which I think a lot of people have recognized since Pascal’s time. And what Pascal says to the Jesuits, and he’s engaged here in a common effort with some of his so-called Jansenist his friends, it’s worth pointing out here that Jansenism is a title that was given to Pascal’s friends by their enemies. They just thought of themselves as Augustinians. And the Augustinians say to the Jesuits and to the France of their time, that Christianity is not a permission slip to do most of what you want to do in life. Christianity is a heroic enterprise that makes very serious demands on a human being. And Pascal tries to recover this demanding sort of Christianity for the 17th century, when he thought most people were living out a kind of cultural Catholicism, in the sense of a Catholicism that was passed on to them as a kind of birthright of being born in a Catholic country. As opposed to a real commitment of their lives, made in a serious way with the intention of pursuing something like sainthood, which I think was what Pascal wanted.

Richard Reinsch (25:40):

You described Pascal’s immense contributions to science, and mathematics and technology. In the chapter you also talked about that this also makes him aware of the inadequacy of science regarding man himself. And we are constantly, I think, facing being defined by science or scientism, that is to say the only thing that’s real are measurements, or what we can learn empirically about nature, and so that would also include human beings. But what isn’t real, what we don’t take seriously, would be the questing of Pascal and trying to understand who man is. Scientific pursuits though, make him aware of that, I think.

Benjamin Storey (26:21):

I think that’s right. I think Pascal is the guy who demolished the ancient scholastic commonplace, that nature abhors a vacuum. He’s also the guy who is famous for saying, “The eternal silence of these infinite spaces.” That is for the ancients, and in some ways for Montaigne, nature is a home to us. And for Pascal, nature is not a home, nature is a void, nature is space. This is I think a very common way to think about nature now, but it’s a terrifying way to think about nature, if one really faces what it means for human experience. And so for Pascal, when you think about nature in a truly modern way, that doesn’t blunt your need for transcendence, it accentuates that need. That is, the more of a modern you are on scientific questions, the more you ought to be engaged in what Pascal defines as the anguished quest for real meaning in our existence. And Pascal is not at all vague about what kind of meaning he has in mind. He means the man God of the New Testament. He thinks that’s what we really want, and if we seriously seek it, perhaps God will show it to us. Although we can never force God’s hand on that point.

Richard Reinsch (27:54):

Okay. So, the man who needs no introduction, Rousseau. What does he do here, how does he respond to both of our previous thinkers?

Benjamin Storey (28:04):

We read Rousseau as a character who draws something both from Montaigne and from Pascal. He begins with Pascal’s diagnosis of what the inner lives of educated people in his own time are really like, and he agrees with Pascal. He looks around the sophisticated Paris of the 18th century when he lived, and all these people with their salon and their literary enterprises, and their artistic delights. And he says, “Come on, you guys are fooling yourselves. You’re not happy. And moreover, you all hate each other,” just as Pascal had intuited. And so, Rousseau thinks Pascal is right in his diagnosis of the pursuit of happiness lived out. But Rousseau also thinks Montaigne is right about something, which is that it is possible to make one’s self happy on this horizontal plane, as you described it earlier. It is possible to make one’s self happy without grace, within the confines of nature.

Just as Montaigne made self-centeredness attractive, one might say that Rousseau makes narcissism attractive. He’s just very good at getting you fascinated by his own very strange life, which proved to have, lots of people have seen a mirror of themselves in that life. And I think that’s one of the things that causes him to be so fascinating.

Rousseau lays out a number of different ways that we might achieve that happiness, from his citizen on the one hand, to his solitary walker on the other. These are, one might describe them as the extremes of the horizontal plane that you’re describing. That is, somebody who’s wholeheartedly invested in his community, that is Rousseau’s citizen, or somebody who’s wholeheartedly invested in himself, that is Rousseau himself, particularly as he appears in the later autobiographies. What these very divergent options have in common, is a quest for a kind of wholeness that Rousseau sees in his natural man. And Rousseau thinks that human history has been the process of losing that wholeness, and becoming divided. That’s what Rousseau thinks the problem is, we’re divided against ourselves. So, to overcome that dividedness, he wants us to go all the way to one extreme with a citizen, or all the way to the other with his solitary walker. He wants us to invest wholeheartedly in something, and he thinks that’s a way in which we can find, even contentment, contentment here and now. Although contentment with a very different content than that attributed to it by Montaigne.

Richard Reinsch (30:23):

Why do you think Rousseau has been such a mesmerizing figure for so many? Intellectuals, artists in particular, also political thinkers?

Benjamin Storey (30:33):

Rousseau is, first of all, he’s a wonderful writer. Even people who deeply disagree with Rousseau have to acknowledge that he has extraordinary skills with a pen. Secondly, he does something very clever in the second discourse, which is I think maybe the clearest succinct statement of the heart of his thought. Which is that he takes the Christian story, the story of the fall, and he transforms it and he borrows it. He uses a lot of its pathos, but he makes it into a secular story of a fall. That is for Christianity, we’ve fallen by falling away from God, into the condition of fallenness in which we find ourselves. In Rousseau, we haven’t fallen away from God, we’ve fallen away from nature. And we’ve fallen away from nature by corrupting ourselves through our own historic activity. But insofar as that corruption is self-inflicted, it could also potentially be self-cured. And by suggesting that, Rousseau raises very great hopes for what is possible for human beings. And so, I think those hopes are part of his appeal. And just as Montaigne made self-centeredness attractive, one might say that Rousseau makes narcissism attractive. He’s just very good at getting you fascinated by his own very strange life, which proved to have, lots of people have seen a mirror of themselves in that life. And I think that’s one of the things that causes him to be so fascinating.

Richard Reinsch (32:13):

Okay, so we’ll move on just in the interest of time here, because there’s so many fascinating thinkers that we could discuss for hours, Tocqueville. Tocqueville and the American soul, Tocqueville and the democratic soul, he’ll take these three thinkers and apply it, or use it to understand man, most powerfully in democracy in America and the democratic commercial Republic, and what the activities of that Republic reveals to us about ourselves.

Benjamin Storey (32:43):

Yes. I think one of the great pleasures of working on this book was that it gave Jenn and I the chance to understand the deepest sources of what we take to be following our mutual friend, Peter Augustine Lawler, Tocqueville’s deepest insight, which is this insight that appears in this little chapter called “Why the Americans Are So Restless in the Midst of Their Prosperity.” So Tocqueville came to America, and he looked around, and he deeply admired this country, particularly its political institutions and its institutions of small town self-government. But he also saw some very disquieting things in America, some of them the obvious things with which Americans are traditionally preoccupied. He was very concerned with slavery and with the dispossession of Native Americans. But he was also very attentive to the kind of disquiet that he saw in the American soul. He said, “These people are freer, more enlightened, more prosperous than any people the earth has yet seen, and yet they are grave and almost sad, even in the midst of their pleasures. And they’re always reaching out for the next thing.”

And what I didn’t understand until we worked through the authors that we study in this book, is how Tocqueville was able to see this. In part he’s just a genius, but in part it’s because he was steeped in this tradition. And in particular, his friend and traveling companion Gustave De Beaumont said about Tocqueville that he just loved Pascal. Beaumont said the two souls were made for each other. And so, when confronted with this people that is always reaching out for one thing after the next. They build a house and they sell it when the roof is being put on, he tells us, because they’ve got to move on to the next thing. He sees this disquiet underneath the surface of prosperity, and success, and freedom and enlightenment. And I think he’s able to see that because he’s read his Pascal, and he knows that so much of human life is a diversion, and that we love our diversions because they take us away from ourselves. That’s one of the great things that Tocqueville was able to see about Americans. That’s why his book, while it’s a wonderful history of America in the 1830s, and it’s a wonderful analysis of our institutions, but what it brings to the table that so many American books about America lack, is this characteristically French psychological penetration. And I think Tocqueville gets that from his being steeped in this French tradition.

Richard Reinsch (35:29):

Now, on the other side, one could say it’s good Americans are immersed in commerce, in work, trying to store away capital, or starting new businesses or worried about their future in that regard. But what they’re not really worried about his ideology, typically. They’re not going to put people in concentration camps, they’re not going to put people on barges in the Sienne and sink them because they’re on the wrong side of the revolution. Things like that. Does Tocqueville think, yes, Americans are restless in their abundance, but they also work hard, so of course they want their money, and they want to do things with it, they’ve earned it? Doesn’t that all sort of balance out in a way?

Benjamin Storey (36:14):

I think so, in the way that you describe it. I think one of the things that Tocqueville loves about America is its liberal character, in the sense that liberalism is an art of separations. And so, while Americans love their commerce and reasonably want to enjoy the fruits of their labor, that’s not their whole lives. They have Sunday. Tocqueville was astonished that this incredibly commercial nation just came screeching to a halt on Sunday, which was a time in which people opened their Bibles, and as he put it, “Cast a distracted glance at heaven,” just a lovely way of capturing this element of American life. And so, that division, Tocqueville says that while religion never directly touches the public sphere, this is not a theocratic government or anything along those lines, nonetheless he describes religion as the first of America’s institutions. And so, I think one of the things that Tocqueville thinks is healthy about American life, is precisely its division and compartmentalization.

And I think what he would be worried about for us, is that as we become a more secular society, we have a stronger and stronger impetus to break down some of our most basic divisions, that is some of our most basic protections. If we think that secular and imminent pursuits are really the only legitimate pursuits, well, why would we accord religion protected status? It wouldn’t make sense anymore. And so, I think you’ve nicely described the way in which the commercial pursuits of American life, that are not the only pursuits of American life, can actually make for a kind of sane people who do one thing six days a week, and then something quite else on the seventh. But what happens when the seventh day is effectively gone? And I think that would be one of the concerns that Tocqueville might have in looking at America in our own moment.

Richard Reinsch (38:22):

And also as you know, it’s the falling away of religion, but also the ways in which Americans find ways to interact with one another. Not just in the market, but apart from the market. And that too appears to be in decline from most of the things that I’ve read, not to mention also family life falling away. All of those things working to shape a different kind of a democracy, not the local scale democracy that Tocqueville saw, but sort of a top-down democratic, administrative, bureaucratic welfare state that we increasingly are moving into.

Benjamin Storey (39:01):

I think your point about the dissolution of human connectedness in the modern world and in the democratic world, is very important. This is something that came out to us in a striking way in thinking through this book. Because we saw beginning in Montaigne, the celebration of a distinctly sincere and humanistic version of social connection, Montaigne celebrates under the name of friendship. And he has this wonderful friend named Étienne de La Boétie. And he writes this line about La Boétie, that their friendship can only be explained by saying, “Because it was he, because it was I.” That is, it’s a friendship that rests on that horizontal human plane that you and I talked about. There’s no third thing, there’s nothing above or outside of ourselves that justifies that friendship. And Montaigne celebrates this as an alternative to the conventional social ties that he as a 16th century Frenchman was necessarily embroiled in, in every aspect of his existence. Montaigne celebrates this, and we can see it also in Shakespeare’s celebration of romantic love. He celebrates the human tie freely formed, the soulmate if you will.

I think one of the things that you see in Tocqueville, is that the soulmate has in a way, become the only game in town. By which I mean that the progress of modern life has done so much to attenuate, and to weaken other forms of human connection, like a more conventional notion of family life, that if you don’t find your soulmate, you’re really on your own. Which is really a very difficult condition to put human beings in. And so, Tocqueville was worried already in the 1830s about what he calls individualism, which was not a sort of up by one’s own bootstraps kind of mentality, but a form of social self-isolation. And one can see that that has gone much further in our own time where, we have unprecedented numbers of people literally living alone. Well, when you have all that loneliness, when you have all that disconnectedness, it’s ultimately going to have a profound effect on your politics. Because lonely people, I think, are typically very unhappy people, and that unhappiness is then going to make its mark on our public life.

When we see students at the beginning of their collegiate lives, one of the first books I like to read with them is Plato’s Gorgias, which puts very forcefully to them the question, how should I live? And it puts that question in the form, what is the best life for a human being? And most students look at me when confronted with that question and it just doesn’t compute. In the sense of. “The best life? You can’t ask the question the best life, there is no best life, right?

Richard Reinsch (41:39):

Yeah, the restless soul you’re describing also could be a way, enormously helpful way of thinking about partisan division, partisan rancor. Not listening to one another, or turning politics into more than it can actually be or provide.

Benjamin Storey (41:54):

I think that’s right, and I think it’s something that we see on both sides of our political divide right now, in particular in the formlessness, you might say, of our most intense political moments. That is, we have protest movements of both right and left, of both the extreme right and the extreme left, but we don’t really have governing movements, that is people with serious and constructive ideas about how to organize human life. And I think one of the reasons that’s so difficult for us is that we have an instinctive suspicion on both sides, again, of the whole principle of human organization, where we don’t like having our ties to other human beings defined, our roles with respect to other human beings defined. But a social life without roles and defined human ties, is kind of a free-for-all. And I think that free-for-all mentality does a lot of harm in both our public life and also our private lives, in which we just don’t know how to relate to the other human beings we face every day. Should I treat a student as a subordinate, to whom I have a special kind of obligation because I’m in a position of power with respect to that person? Or should I treat that person as an equal, and therefore have a completely different set of relations with them? I think those are the kinds of questions that come up for all of us, all the time. And that makes for a very undefined, and therefore agitated and restless social life.

Richard Reinsch (43:28):

Okay. So, we have talked about four incredibly consequential French thinkers you and your co-author argue are key to understanding contemporary restlessness. What then, does liberal education do, or what could it provide?

Benjamin Storey (43:45):

One of the things that was both an entry point and an exit point to this book for us, was an attempt to connect what we’ve seen in the French thinkers to what we see in the students in front of us. And so, we open the book by describing a student. She’s a composite of many students we’ve worked with over the years. This is a student who has done everything that the college has asked of her. She has succeeded handsomely in a couple of majors. She’s founded one club, she’s the president of another. She’s been on study abroads, and not just different countries, but different continents. She’s done internships, she’s done everything. And she comes toward graduation, and she doesn’t know what to do with herself. She could go to law school, she could go to graduate school, she can go work for a consulting firm, she could go back home, she could become a teacher, she could go abroad again, she could become a farmer.

We have frequent conversations with students in which the options are every bit as wide open as that. And when they get to the point of this, one could call the first really adult choice one makes in life, which is the choice of what to do immediately after college, they have no idea what to do with themselves. And why is that? We started to wonder. And we connected this to what we were seeing in the authors that we were studying, in the sense that our students have not been trained in the art of choosing. They haven’t been trained in the art of thinking through what might actually make them happy. And so, they can take the most divergent options about how to live their lives as all equally serious, and all equally suited to them, which is just a profound failure of our educational institutions with respect to these students. And so, what we’ve tried to encourage in particularly the conclusion to this book, is to rethink liberal education as an education not aimed at cultivating the Renaissance man or the Renaissance woman, the human being who is good, a kind of jack of all trades, can do just about anything. But liberal education as an education in the art of choosing, because choosing is so much of what human beings with the freedom and equality that we enjoy in our society, have to do in our age. Our educational institutions ought to be doing more to help students learn that art.

Richard Reinsch (46:25):

And learning that art would be, I take it, reading great works in politics, literature, philosophy, law, history, and seeing how other people have made choices, been faced with difficult circumstances, and how they’ve understood themselves and what they’ve done?

Benjamin Storey (46:45):

I think that’s right. I’ll add to it that, I’ve mentioned at the beginning of our discussion here, Montaigne’s attitude toward the question of the summum bonum, in which he conveys his skepticism about that question to us. And I think contemporary Americans, probably contemporary citizens of most liberal democracies, inhale that skepticism like a gas, that’s TS Eliot’s way of describing Montaignian skepticism, it’s an atmosphere you breathe in. And so when we see students at the beginning of their collegiate lives, one of the first books I like to read with them is Plato’s Gorgias, which puts very forcefully to them the question, how should I live? And it puts that question in the form, what is the best life for a human being? And most students look at me when confronted with that question and it just doesn’t compute. In the sense of. “The best life? You can’t ask the question the best life, there is no best life, right? Everybody knows that,” is I think the instinctive reaction of many of our young citizens. And we want to give them the courage to ask that question again. And I think you’re exactly right, that the great works are a great way to learn to do it. And so, if you walk a mile in the footsteps of Aristotle, if you really try to think through life in that way, it may not be your ultimate, final answer to the question of how you should live, but it’ll help you think very seriously about what it means to live according to the dictum, that happiness is not in fact contentment found though a variety of pursuits and pleasures, but activity of the soul in accordance with virtue. That’s the Aristotelian perspective on this question.

Richard Reinsch (48:20):

Your description of your student just there, made me think that they’re thorough disciples of Montaigne. “What do you mean? I’m happy sunk into myself, into these other pursuits, like my phone, whatever’s on my phone. And here you are trying to draw me out of myself. How dare you?”

Benjamin Storey (48:39):

I think that’s a nice way to capture their reaction. But the thing is, you push through that first day.

Richard Reinsch (48:46):

And then they want to come out, right? They’ve never really been invited, most of them, in an honest way.

Benjamin Storey (48:52):

You’re right, because they couldn’t be, because one can’t actually make one’s self happy in this way. Staring at one’s phone is addictive, but I don’t think it puts one to bed with an easy conscience. And I think most of our students have the experience from the inside, of the restlessness that we think is the sign of abiding modern discontent, with the ways we try to make ourselves happy.

Richard Reinsch (49:19):

Ben Storey, thank you so much. We’ve been talking with the author, co-author along with Jenna Silber Storey, of Why We Are Restless: On the Modern Quest for Contentment. Thank you so much.

Richard Reinsch (49:31):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

Led by Truth, Inspired by Beauty Jun 30, 2021

Richard Reinsch (00:18):

Welcome to Liberty Law Talk, I’m Richard Reinsch. Today, we’re talking with Elisabeth Lasch-Quinn about her new book, Ars Vitae: The Fate of Inwardness and the Return of the Ancient Arts of Living. Elisabeth Lasch-Quinn is professor of history at Syracuse University. She’s the author of many books and essays, including the award-winning Black Neighbors, which won the Berkshire Prize. She’s also the author of Race Experts. Elisabeth, we’re glad to have you on the program today to discuss this book.

Elisabeth Lasch-Quinn (00:50):

Well, thank you so much for having me. It’s a pleasure.

Richard Reinsch (00:52):

All right. Tell us, what’s going on in the art of living? What do you want us to recover?

Elisabeth Lasch-Quinn (00:58):

Well, I think that we should pay attention to our intellectual traditions. They’re so rich and they’re so multifarious and intricate that we abandoned them at our peril. And we also abandoned them at our poverty because it impoverishes us not to have this treasure trove of different kinds of approaches for how we can live our lives and think about all of the various problems that faced human beings over time and then specific problems that face human beings in the times that they live in. I go back to ancient Greco-Roman philosophical schools of thought, because I think that even today in our popular culture, we see signs of an interest in those schools of thought even if a lot of times it is inchoate or just suggested or implied or maybe even just hidden and unconscious.

Richard Reinsch (02:01):

We can talk more about that. Because at one level to think, wow, so ancient philosophy, stoicism, Platonism, Epicureanism, we’re going to bring those into conversation with all of our problems that we have now and they can enlighten us and guide us and give us wisdom and truth and all those things. That’s ambitious. But also as I read your book, a huge part of your book is a critique, a negative moral judgment of how we live now, of how we think now, of how we approach ourselves and living with others. Talk about that because that to me, we can’t get to the classical philosophy until we understand more of what you’re saying there.

Elisabeth Lasch-Quinn (02:45):

Yeah. I think part of why I think it’s so relevant and important now in particular is because how we are living, not we as in you and me, but our dominant cultural sort of habits and trends and even mores or lack of mores. I do think we’re living in a moral crisis. I think we’re also living in a social, political and intellectual and spiritual crisis. It’s really a tough time. There are a lot of divisions among us. There are questions of principle, even obscurity about the very existence of a truth, not even talking about what the truths might be and debating them, but just is there even such a thing? It’s a pretty major crisis we’re in. I think sort of a perfect storm of different things going on. One of the main cultural movements since really since the late 19th century, but particularly taking up speed in the mid 20th century and then on into our own day, I think it’s still dominant is the therapeutic culture. And I draw very much on Philip Rieff, the classical sociologist who wrote the 1966 classic, The Triumph of the Therapeutic. And in that he was talking about this movement he saw over a long period in culture, particularly with Freud as a kind of pivot into the modern therapeutic, in which shared understandings based on religious or transcendent belief that helped communities cohere and also helped individuals think about why they would give up certain things, certain freedoms or other instincts or urges and wants and needs even.

Why would they do that? Well, there was a sort of transcendent purpose or a sense of what was sacred, what the community was aiming at, the telos in a way. Then that shifted particularly in post World War II era United States, but the so-called West more broadly, as individual freedoms sort of began to be enshrined as the ultimate principle. This was part of how many people sort of lost their sense of commitment to communities or families or polities. And instead it sort of gave a legitimacy to the pursuit of individual instincts and even greed and such. The sort of therapeutic where you just let it all out or you pursue everything that you want, regardless of other people. That sort of ethos really imbues a lot of what we have in our culture, even if it sometimes has other things laid over it or coming through it, maybe mitigating it a little bit. But there’s really a strong therapeutic push to social life now. And I think that we need something, we need to figure out really what is at the root of that therapeutic? And then what traditions of thought might be rich enough and deep enough to give us an alternative? Because I think it really leads to an impoverished way of living and there’s so many signs of that, of spiritual crisis.

Richard Reinsch (06:24):

Yeah, the author novelist, essayist, Walker Percy had this phrase, the consumer therapeutic culture.

Elisabeth Lasch-Quinn (06:31):

Oh yes, yes.

Richard Reinsch (06:33):

And I thought of that as I was just reading your critique. And consumer, he didn’t necessarily mean, although he didn’t exclude it, just sort of the materialism of our period, but consumer as in consuming ideologies as meanings of truth and those ideologies, you take your pick. Marxism, feminism, nationalism, whatever. And these sort of become ways in which people understand themselves, but what they’re divorced from would be metaphysics or theology or sort of the traditional things that have guided people throughout the course of say Western civilization broadly understood and being replaced by an ideology or the therapeutic. He was very much alert to the therapeutic. And what do you think is at root of the therapeutic? Is it the dismissal of virtue? The dismissal of sort of a truth that transcends human beings and nature that transcends human beings but sort of I’m making things up as I go and what I’m making up is kind of what makes me feel good. What do you think it means?

Elisabeth Lasch-Quinn (07:32):

Yeah, I think so. That’s a good summary. And all that you said is so fascinating to me. That reminds me so much of Eric Voegelin, who was critical of those same sort of ideologies when used especially to split the world usually in two camps of those people who are all evil and those people are all good because they ascribe to that particular ideology and it’s really a terrible way to live and it doesn’t work. It just pits people against each other. Using etiology instead of really deep ways of thinking and traditions of thought and living is not helpful and is really part of the 20th century tragedy. But yeah, so what’s at root of the therapeutic. I think it’s got different sort of elements to it. And so in my book, I put my own definition of the therapeutic because there’s a set of scholars and thinkers who have written such insightful things about aspects of the therapeutic culture, such as therapeutic as it comes through education or as we see it in the practice of religion even, which would seem to be the very opposite of it. But there are certain ways that some people practice religion that are very much in line with the consumer therapeutic. At the root of the therapeutic in my view is self interest and also a manipulative view toward other people.

Once we are shorn of any transcendent or higher reference outside of the individual that could possibly be a source of connection and meaning and commitment that gives us direction for our striving and a reason to practice virtue, we are sort of left to our own devices and the emphasis on the individual’s quest for what feels good, what is supposedly therapeutic, it makes it seem as though other people exist only as kind of auxiliaries at best and kind of stepping stones at worst. That they are just there to help fulfill the individual’s needs and wants. And so without any sense of shared purpose or the sense that shared purpose is important, people end up in a manipulative mode and not even aware of why that’s wrong or that there would be a possible alternative. It’s just widely accepted that it’s fine to pursue your needs. That would almost sound funny to many people to say, “Wait, hold on. Why did you just talk about it being so great to pursue your needs?” Because it’s such a given now that that is what the main project for each individual self is. I think those things, other things like having a health paradigm is the main kind of worldview, that everything is related to that. As long as it is sort of healthy in any individual’s idea of what healthy means, because that becomes very subjective, then it’s fine. Instead of having this phrase…

Richard Reinsch (11:05):

Hear this phrase self care a lot now.

Elisabeth Lasch-Quinn (11:05):

Yeah, self care. Oh my goodness, yes.

Richard Reinsch (11:08):

Yeah. You’re unfriendly to people who work out and spend time in the gym, but those can be good things too, though.

Elisabeth Lasch-Quinn (11:17):

Yeah, I’m not unfriendly to those people. I love those people. They’re me and everyone else around us. No, working out and things is fine. I think it’s all about with all of our human activities, don’t you think it’s all about how you do them and why you do them? And where does that activity fit in the larger scheme of your life? And would you run over someone to get to your gym because you’re on your way to be so virtuous in working out that you accidentally ignore that there are pedestrians? That kind of thing that we need a sense of perspective and proportion of what really matters and how to go about living our lives, whether we’re working out or cooking or shopping or caring for children, all the different things that we do. And one of the things that I wish we could do more is think about the ends. What is the point of different things? And then maybe we would be clear on how we should be doing what we do.

Richard Reinsch (12:30):

That’s another part of our culture too, is the instrumentalization of everything in a way and not seeing things as finally true or good in and of themself. You talk in the book, you go on in separate chapters to talk about stoicism, Epicureanism, cynicism, Platonism and then you sort of have a final summing up chapter of what all this means. Thinking about stoicism, maybe just give us the classical understanding of that and how you see that reviving in contemporary times.

Elisabeth Lasch-Quinn (13:04):

I basically encourage everyone to read the texts themselves because they’re so rich and fascinating and strangely so easy to understand even all of these years later. It might seem too old, why would we ever want to read such an old, difficult to understand text? Well, these are translated into wonderful modern English versions or if your’re Spanish, Spanish versions, Italian versions. All over the world, Chinese versions. There’s beautiful translations of all of these ancient texts because they’ve been around for a long time. Find an edition. People should find editions because I really feel they’re systematically being deprived of some of the best, most helpful resources for living, just getting by with some of the things we have to face in the human condition. That just kind of leads up to, you can see that I feel rhapsodic about stoics. People like Marcus Aurelius and his meditations and Seneca in his letters and Epictetus and his sort of programmatic list of ways to think. I don’t agree with it all and I don’t think most readers would agree with every single thing they read. And they all differ. All of these stoic authors are very different.

They have a different tone, different style, different genres they write in. It’s worth the reading lots of them, if you can or if you’re interested. But they share certain overarching things and one of them is an understanding of the various demands on the individual, on a person. They have the idea that you should really think about what the priorities are, what you should be pursuing. And then that helps you deal with all the rest and let some of the rest fall away. They really want you to be clear about what the point is and what you’re pursuing and then really dig in. And it’s about endurance and overcoming some of the at least initial emotional reactions that can steer you away from the things that you’re pursuing. I do see this coming back now. We see it in a lot of movies like the movie Gladiator.

Richard Reinsch (15:21):

You see stoicism in Gladiator?

Elisabeth Lasch-Quinn (15:23):

I actually do. I think we can debate it. And anyone ever wants to talk with me about any of these movies that I write about in a book or any other movies, I think it’s fascinating to see whether there’s a school of thought coming through a particular cultural form and movies are so prominent now. But any, any one you can think of, a painting from the Renaissance, a song from Bruce Springsteen that he just wrote or you can look at these and see what’s the sensibility behind it. And I think you can kind of see that they lean toward one of these schools of thought, not just the ones in my book, but there are more that I didn’t include in one book like the ancient skeptics, et cetera. Yeah, I think I do see stoic elements. And even if you don’t agree that there are stoic elements in the movie itself, the movie refers to those. It’s trying to say that stoicism’s still interesting. But there’s a whole movement of the new stoics. And these are real people today who gravitate toward websites and online schools and classes and also events in the real world like Stoic Week. And there’s a real following for stoicism today. I think a lot of it is unconscious and you can see it in many places where no one’s proclaiming the new stoicism, but there’s also a conscious element of it. When I look at some of the new forms, I do see a difference sometimes with the ancient forms. That’s what I do with each of the schools of thought that I look at in the book.

Richard Reinsch (17:04):

Do you see the stoicism now, you say in the book is sort of like, well you write about one gentleman who writes a book on stoicism for business. He profiles sort of famous people in history and how they exemplified stoicism. And you think this is kind of a bit rich and it seems to be sort of stoicism is now understood as be tough or have true grit and buckle down. But of course, stoicism in the classical perspective was something else that there was truth, the world was composed of reason, there was natural law and you tried to situate yourself in accordance with it and not be overly worried about fortune or various calamities that might befall. You wanted to live in accordance with the reason of things.

Elisabeth Lasch-Quinn (17:45):

And I would just add fame, don’t be obsessed with fame and things because time passes and people forget, so don’t be just pursuing immediate sort of self glorification.

Richard Reinsch (17:59):

Yeah. You wouldn’t be a social media, an Instagram influencer. That might be hard if you were a serious stoic.

Elisabeth Lasch-Quinn (18:07):

Yeah. Or if you did, you were really practicing a different kind of craft, but maybe using that maybe input. One thing about the stoics that’s fascinating is that they have this view of time and space of the universe. And in modern forms, it’s often reduced to basically pretty much the AA mantra, which is about leaving aside things that you can’t change and only focusing on the things that you can change and far be it from me to criticize. I think that Alcoholics Anonymous has saved many a life and many a family, so all good. But when you go outside of that and see where it’s coming up and it’s really kind of scary because you can use stoicism getting rid of all of the bigger worldview to pretty nefarious ends as you just implied that you can let everything else fall away and just say, “Oh, it’s all about grit.” And oh, the way I interpret it because this is the therapeutic society and the individual reins supreme, I just choose to interpret it as being really mean to people or being aggressive or being violent. That’s not at all a stoic sense. And the stoics had a whole sort of cosmology. They tried to sync.

That’s what’s fascinating about these schools of thought is they thought not just sticking, just want a paired of down self help regime where give me five steps for how to live my life. They were really about understanding our life and ourselves, of understanding in light of the fact that we live in this infinite universe and we are just this speck, they would emphasize we’re just this tiny speck. Considering that we are and that our moment in life is so fleeting, then how should we live? And I’m not trying to say they’re all saints or anything. I’m just saying that if we look at their more complete worldview, it can’t be hijacked so easily by the modern therapeutic and the hyper-individualism that I’m worried about and it can present an alternative. One of the things that’s missing about the many modern forms is the focus on virtue and moral goodness, which was really at the heart of these schools of thought. And that’s unfortunately one of the elements that I don’t see as, and some of the new stoicism is fantastic. It’s great writing. It’s really reaching. It could affect your life for sure. There’s really good stuff. And then there’s others where it’s just really been hijacked by the therapeutic self help culture.

Richard Reinsch (21:07):

Something that occurred to me thinking about stoicism in the Roman Empire, at least what I’ve read, it doesn’t really penetrate beyond the aristocratic class. Have you thought about why that might be?

Elisabeth Lasch-Quinn (21:16):

But do we ever really know though about that because the sources are so slim and there was Epictetus who was a slave. He’s one of the maybe the most prominent stoic that we still know about now. I’m not sure. Well, maybe you know, you’ve read more about what we can know based on the limited sources to say, but I would never generalize about beyond, because what we have is the sources that we still have tend to be elite sources so it’s probably all we can really know about anyway, but that doesn’t mean other people didn’t have any forms of stoicism.

Richard Reinsch (22:03):

As I thought about it, I don’t know what that necessarily means, but I’ve wondered about that. Something I was thinking about in your book and the stoicism discussion one, stoicism to my knowledge is sort of the operating philosophy of the United States military. To the extent there’s a philosophical bedrock, given its stoicism. In fact, Donald Trump’s first Secretary of Defense, I think it’s apt to say is a stoic, certainly studied Marcus Aurelius’ Meditations, we know, thoroughly. The way he talked about duty in particular to the country reminded me of a stoic talking and was thinking about those things. Also known for saying in any room he goes into, he has a plan for killing everyone in the room and getting out alive, which I thought was an interesting thing.

But there and then there’s also thinking about this aristocratic tradition, at least according to Walker Percy, the leadership class, both of the antebellum South and then the post Civil War South, at least until the early 20th century, was stoic. He said it wasn’t Christian so much. They had really one foot in church, but really they were more Cicero and they thought of their own obligations in life and their actions and things they did in stoic terms. And he talks about the men in his own family in that term and he thinks stoicism is so far so good. He doesn’t think it’s enough because a person he says, “It can’t really help you love.” Or doesn’t really call forth grade love, a great relational love. And he wonders about that.

But I was also going to mention that probably one of the most listened to podcast in America today is Jocko Willink’s podcast. And Jocko was the former trainer of Navy SEALs. He was a Navy SEAL for a number of years, served in the Iraq War and everything pulsating through this podcast is stoicism. And how not just to what he does, what podcast he does is he brings sort of lessons of leadership that he learned as a Navy SEAL and he has a consulting practice and he sort of helps other people with leadership through the things that he had learned as a SEAL but the way he’s described himself and the reasons he gives you for acting on your own are very stoic in nature. And it’s an endless push, I should say, but he’s also, I wouldn’t say cheapening stoicism as we were discussing, but is writing about sort of the full realm of how you should act in a range of different responsibilities and how you should treat other people and things like that. I was just going to mention that to you as something you might take a look at.

Elisabeth Lasch-Quinn (24:35):

Thank you.

Richard Reinsch (24:36):

One thing you write about Epicureanism, we can say that’s definitely been devalued in our time. But what about Epicureanism is good for thinking about now?

Elisabeth Lasch-Quinn (24:45):

Well, the early Epicureans were very different from some of the modern or current manifestations, which it’s true. The ancient Epicureans did think that pleasure was the ultimate point of life. That’s true, but in their version, it was very still grounded in a moral framework when they thought, what does pleasure mean? It is something that you get from your relations with other people and your relations with just basic activities in life. Things like eating were definitely sources of pleasure, but they were also in a particular setting among friends, among family members. There was still a sense of kind of moral community, a very strong sense of that. And there was also a sense of holding back on your appetites, which we would probably just automatically say, “Oh, that sounds more stoic.” And maybe there is a little bit of stoicism there, but it is very much an Epicurean value to hold back and to keep your wants more trimmed down so that you can satisfy them and so that you can keep pursuing pleasure throughout your life.

They had a very strong sense that you can’t just abandon yourself in every given moment to an unbridled pursuit of momentary titillation or gratification because then what’s going to happen is you’re going to have terrible results and the next day is not going to bring any pleasure whatsoever because you’re going to tear apart all of the good things in your life and pay huge consequences and then your life is not in any way, a pursuit of pleasure. They had a sense of perspective and proportion and the duration of a life. Yes, they were talking about the main thing is pursuing pleasure within one’s own lifetime, but it was not anything that would help with the modern consumerist.

Richard Reinsch (27:05):

Well, I suppose they would, just thinking about the meal and thinking about purpose. The meal itself, it wasn’t to gorge or if you enjoy the food, but I take it, there’s a range of experiences that that they’re concerned with.

Elisabeth Lasch-Quinn (27:20):

Yeah. Because if you gorge on things, that’s not going to lead to pleasure. It’s really an interesting way to think of things that I think is very helpful for us because we do live in this consumerist era. And so there are some movements that I think are kind of truer to ancient Epicureanism. When I was living in Rome, I had half a year as a Fulbright fellow and I knew someone who was interested in the slow food movement and she invited us to a several day conference on the slow food movement, which I didn’t really know about. And it was held at, it’s called Bra, Italy where that movement had its origins. And it was all about the gourmet emphasis of our time, where you care about the way you prepare food, but it was so embedded in a sense of again, kind of moral community where the reason why you pay all that attention to how you’re cooking is not just because you’re thinking about yourself and this is another part of my image or my identity or anything like that.

It’s more that we should because of morals, we should care about how we’re raising livestock, we should care about how we’re farming and so that there are a lot of movements like that, buy local movements, farm to table movements that emphasize kind of having a moral sense when you go about getting your food and preparing your food. But the slow food movement in Italy also emphasizes the pleasures of actually sitting down and then dining and consuming the food in a positive sense. It could have us reorient ourselves toward consumerism if we thought of consuming in that ancient Epicurean way, that it has has a place in the moral community and helps shore it up and gives us a sense collective purpose and just belonging. And a sense of enjoying each other’s company and such.

Richard Reinsch (29:49):

The pursuit of pleasure, as I’m thinking about the classical Epicurean pursues pleasure, but they’re not really pursuing pleasure per se. It’s pleasure of what comes out of virtuous actions.

Elisabeth Lasch-Quinn (30:00):

Yeah. That in itself is the source of pleasure. That’s how morals and pleasure are still united for them. Whereas for us, they tend to be separated because we just talking about the individual’s pursuit of pleasure and then that’s outside of a moral framework.

Richard Reinsch (30:19):

You talk at length in the chapter on Epicureanism about the novel film Eat, Pray, Love. Does this film exemplify Epicureanism? Or is this something else?

Elisabeth Lasch-Quinn (30:32):

I think it’s trying to. I think it instead is an instance of what I’m trying to warn of in the modern forms of these schools of thought that I’m really deeply, profoundly worried about where we are, what’s happening in our times. I think we’re in cultural crisis and we have been for some time and if we don’t find ways to renew our sense of sort of why we exist together, not just separately, but individually too, we’re just not going to be able to continue. I’m really worried about the state of things. And so when I see Eat, Pray, Love, I’m pretty excited because there is an unconscious reference to ancient Epicureanism. And even to some other traditions, there’s a lot of sort of spirituality in that film and things like that. But then ultimately it seems like it’s shoring up the ethos of our time.

Richard Reinsch (31:38):

Consumer therapeutic.

Elisabeth Lasch-Quinn (31:40):

Yeah, I think so. I don’t want to dismiss it all together. And all of the cultural forms that I analyzed in the book, I have at least some empathy for otherwise I wouldn’t spend so much time on it. I think they’re worth looking at, thinking about. And there’s something just so amazing about the Eat, Pray, Love phenomenon, because many times it’s mothers and daughters who went to see that film or it was sisters or it was friends and they really found a lot of meaning in it. And so I don’t just dismiss things and that people find meaning in. And I think sometimes they were finding meaning that probably came out of their own understanding of their embeddedness in moral communities and their relationships. And if that helped renew that, great. But I think ultimately I found that the message of that was pursue your own pleasure and at any cost. And the saddest part of that movie to me is this wonderful scene with her ex-husband, she’s divorcing him and he’s in the elevator and it’s one of those uncomfortable things where it happens to open and she’s standing there and they had both been to the lawyers about their divorce and he’s just crying. And it’s awful. It’s just chilling to the spine because she didn’t really have a distinct reason for leaving him. She wasn’t leaving him because he was cruel or violent or their life was just impossible to sustain. It was more of that sort of generalized discontent on her part that maybe there’s something more. And then you realize what the cost is when you look at him and he did not want to end the relationship. To me, that speaks volumes about what is wrong with the consumerist therapeutic, where people can just sort of become pawns that you cast aside when they’re not really helping you fulfill what you think is going to be therapeutic for the individual.

Richard Reinsch (33:56):

Okay. On to Platonism, which seems to be, as I read you, the school of thought you find most hopeful.

Elisabeth Lasch-Quinn (34:03):

I do.

Richard Reinsch (34:05):

And I would sum up your chapter on Platonism led by truth, inspired by beauty. That’s what it can give us.

Elisabeth Lasch-Quinn (34:11):

Nice.

Richard Reinsch (34:12):

And we desperately need it. Could you talk about this chapter?

Elisabeth Lasch-Quinn (34:17):

Yes. I think this is the school of thought that is most rare today. And so what I want is to help join those other people who would like to bring the whole conversation back among these schools of thought because that’s partly what I think is interesting and important is not just saying, “Oh yeah, stoicism is the answer. Let’s forget about everything else.” And I think stoicism has a lot to offer, but it can also be, as I said, hijacked for use for just the individual, maybe even to shore up aggressive, violent urges. That’s not good. That’s a terrible combination of the stoic and the modern therapeutic consumerist culture that can be toxic. And there are toxic versions of the other schools of thought as well. But the Platonist one, I think that needs to be brought back into the conversation. Many of the other schools kind of had their origins in the Platonist perspective and they kept some of those elements, even if they went in a certain direction as in Epicureanism with the pursuit of pleasure, but there was still that moral sense. And that was largely, wasn’t originated in Platonism, but Plato was the composer of the symphonies on a whole symphony, philosophical symphony, his whole oeuvre was about moral goodness. And I think we need that part of all of those ancient schools to come back. But I think Platonism, if we could bring it back into the conversation, would help us think about all of our various struggles and difficulties in light of the overarching question of, well, what is good as in morally good in this case? It doesn’t seem like that’s the habit of mind that dominates today.

Richard Reinsch (36:15):

Well, I think we’re sort of like, what is truth? In a mocking sense, not in the Socratic sense of asking that question. We should bring Plato back into the conversation, what would that look like institutionally? Something that I thought as I was reading your chapter is the rise of these classical schools all across America. What I thought was interesting about that is a lot of these are very religious schools, Catholic schools, Protestant schools and so they actually want to return to the ancients, but through Christianity, did you think about that as you were writing your book?

Elisabeth Lasch-Quinn (36:44):

Oh, absolutely. And in the end of the book I come to Plotinus and Augustine. St. Augustine was so deeply influenced by Plato and Plotinus. He says that that was really what changed his trajectory was reading them and you can see it in his thought and it’s basically, you can’t, I don’t think completely appreciate Christianity without realizing the profound Platonism in it but also it has the other elements. It has the other schools of thought as well. Stoicism is very much in Christianity. These schools of thought aren’t in any way sort of opposed. And that would be something that would scare me if people, again, it’s that urge that we have probably to commodify and make simple and manageable and usable different philosophies. And so I think there would be some people who might think, oh, you can either recommend a religion or you can recommend a school of thought. And I think that the whole conversation is what we always need, because you could take Christian beliefs and practices and you could say, “Well, which here, do we see any stoic leanings? Do we see any Epicurean leanings?” And Platonist leanings are so important, because a lot of the modern practices of religion are basically one and the same with the consumer therapeutic. And so how would we sort of work against that and retrieve or invent what is best about religion in our lives? I think it’s being attuned to the Platonic elements would help a great deal.

Richard Reinsch (38:38):

Yeah, as I thought about your book too, just this idea of faith and reason working together, interacting and needing one another. And I think, probably one of the most dramatic papal statements was the Regensburg address in my mind, by a Pope in the 16th often misunderstood. In which he’s basically trying to recover a classical version of reason and saying that this has been debased by a modern positivist and utilitarian understanding of reason. And so we’re not even able to think about who we are anymore. And he tries to show ways in which this has devalued Western liberal democracies. I was reading your book, I just thought about that as well, that this sort of loss, and you’re talking about philosophy as a way of living and I’m maybe talking about how to think, but this overall loss of conception of our full intellectual tradition, something we definitely need to recover. Elisabeth Lasch-Quinn, thank you so much for coming on to discuss your book, Ars Vitae: The Fate of Inwardness and the Return of the Ancient Arts of Living.

Why the Framers' Intentions Matter Jun 14, 2021

Richard Reinsch (00:19):

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today, we’re talking with Donald Drakeman about his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers. Donald Drakeman is distinguished research professor in the program in Constitutional Studies at Notre Dame University, where he also teaches in the law school. He’s the author of a number of publications, some of which I’ve read over the years. Why We Need the Humanities, Church, State, and Original Intent, along with many articles and book chapters. Donald, we’re glad to welcome you to Liberty Law Talk for the first time.

Donald Drakeman (00:52):

It’s a pleasure. Thanks very much.

Richard Reinsch (00:54):

Thinking about this book, I like the title. So we are awash, it seems to me, in a cacophony of constitutional interpretive methods. Originalism itself boasts… I don’t know. Over a half a dozen different schools. We’ve also got the living progressive Constitution, which can be a very moralistic Constitution. It can also be a very pragmatic Constitution, driven by policy concerns, in terms of reaching outcomes. So what’s the hollow core of most of these approaches?

Donald Drakeman (01:26):

I think that the basic problem is that we’re arguing about what the words might’ve meant, what the words should mean, what we’d like the words to mean. And what we’re missing is that, from really the beginning of written laws in the Western legal tradition, the law was the written instrument that was made by a lawmaker. Then, it would have been an emperor. Now, ever since we’ve had legislatures, it’s legislatures. They make the law. And throughout all of that history, really for the better part of 20 centuries, the core of interpretation was trying to discern and apply the will of the lawmaker, or what we usually call the lawmaker’s intention. That’s what Coke said. “Every statute ought to be expounded, according to the intent of them that made it.” Joseph Story even said, “The first and fundamental rule of interpreting legal instruments is to construe them according to the sense of their terms and the intention of the parties.” The intention of the lawmaker was what judges were expected to look for and how they were expected to interpret. And when Justice Scalia said, “Well, Blackstone told us that we should look for the words in their ordinary meaning,” he was right. Blackstone said that. But what he said was, “That’s our best evidence, subject to other evidence, of what we’re really looking for,” which was the will of the legislature by, as Blackstone said, “Exploring his intentions at the time the law was made.”

So it is by looking at the area where a number of leading originalist scholars have said we ought not go, which is the debates that, our record of the actual bargaining process, and see what those individuals thought they were talking about.

So what we’re missing is what we really should have been looking for all these years, which is the intentions of the lawmaker, what the lawmaker was trying to do, why the lawmaker was trying to do that. And we’ve gotten ourselves into two very separate corners of judicial policymaking, say, on one side and a hunt for some sort of dictionary definition on the other.

That was not anchored to what real people were trying to do with the words being used.

Richard Reinsch (03:34):

When I interview most originalists, when I read most legal scholar originalists now, what is described is “Well, there was a time,” say Raoul Berger, Robert Bork, 50 years ago, “of this, ‘Well, we want to know what the intentions of the founders are.'” And we realized that was just impossible, if you really did historical work, that how would you ever know what their intentions were? And they intentions cancel each other and they’re different. And what’s really important is to know what the texts mean at the time and to know how people would have described them and understood them. So the better way of doing originalism is original public meaning. I mean, I know you know all that. But for our listeners. And that’s seen as displacing original intentions. So I mean, is that because primarily, originalism wanted to be academically distinctive? Or is that, in itself, this sort of a methodology of just trying to make it more stable?

Donald Drakeman (04:31):

Well, I think they’re probably a collection of reasons, one of which is that the old version of original intent was often focused on looking at what a small number of prominent framers might’ve said about an issue outside of the debates in the first Congress or the Constitutional Convention. I mean, take, for example, the famous Everson case in church and state law. They go back to Virginia and they’re looking at what James Madison said in a petition he wrote called the “Memorial and Remonstrance “. Or they’re looking at a letter Thomas Jefferson wrote a bunch of years later. And assuming that you’ve got all these framers that thought one thing, and you have a bunch of framers from New England that thought another thing. And there’s no way to figure out how you can blend all that. And so, we’re going to look just at the meaning of the words. And that seems really sensible if there’s only one meaning of the words. And that’s really how I got started in this research is that I’ve been a church-state scholar for a long time.

I decided I would do a very careful analysis of the original public meaning of the words. I mean, there aren’t many words in the Establishment Clause. And what I came out with is that there are at least four equally plausible meanings if we look just at how somebody, somewhere, was using that language at the time. So how do you pick? Which of those public meanings? I’m not arguing. And I think some of the so-called bad old originalism sometimes argue that we ought to pick a meaning that’s different than what the public might have understood. I think, to the contrary, the key here is to look at which of multiple possible public meanings the public actually did understand. And they understood it because they understood that’s what the framers were doing. So the intentionalism that I’m focused on is not the intention of James Madison in particular or any other framer. It is the intent of the body. When they got together to debate the various terms, they had ideas, they had intentions. “I want this for my state. You want that for your state. We disagree.” And then, finally, they vote on something that they all understood did something in particular. And it may not have been what any of them wanted, what they intended to get when they got there. But they knew, at the time when they were voting, what they were voting on and what that meant, what it was supposed to do, what their intention of the whole body as a group. So that’s what we’re looking for here. So we don’t go back and look at James Madison’s or Jefferson’s or James Wilson’s life histories.

And try to discern the meaning from their own personal philosophies. It’s, they hammered out a compromise. And they knew what the compromise was.

Richard Reinsch (07:21):

How do you delineate and understand the contours and nature of that compromise for a legal decision?

Donald Drakeman (07:28):

Well, that’s where the thing that has been excluded from many of the, perhaps most of the original public meaning discussions is the debates in the convention and debates in the First Congress on the Bill of Rights. And it is there where we have the best sense of what the lawmaker, as a group, thought it was doing as a group. And so, we see that James Madison probably disagreed with a number of people in New England about what the word “establishment” meant. But they all knew what the clause was designed to do, which was to prevent the formation of a national church like the Church of England. So it is by looking at the area where a number of leading originalist scholars have said we ought not go, which is the debates that, our record of the actual bargaining process, and see what those individuals thought they were talking about.

Richard Reinsch (08:26):

Okay. But in thinking about what they were talking about? I mean, I guess the overall question of just getting, you call it the summing up, or people call it the summing up problem. I’m fishing for something concrete to think about, in terms of applying to a judicial dispute.

Donald Drakeman (08:42):

So let me pick, instead of the Establishment Clause, the Excise Clause. Because unfortunately, so many of us have notions of what the Establishment Clause meant or ought to have meant, that it’s hard to talk about it without bringing in all those old arguments. So let’s pick the Excise Clause in the tax provision, which is a somewhat more emotionally neutral topic. So it turns out that, in the Excise Tax language is, what is an Excise Tax? Is it a tax on a transaction, like a sales tax? That was one definition. Or basically, any tax that the government might levy on a thing, like something you own. Not something you buy. But just something you happen to have in your house, like your fireplace or your dog or your clock. And there were different regional meanings of the word excise. And we find out actually that people in New England had a completely different view of what excise meant, based on their own statutes and what was collected by the Excise Tax collectors in their own states, from what the people in Virginia thought. And one of the early Supreme Court cases was all about, essentially, whether it would be this New England version, which says it includes taxes on things you own, or whether it was a Virginia version, which is just taxes on things you were buying or selling, a sales tax.

And Justice Patterson, in the 1790s, very early case, by a framer. Patterson was one of the framers. Represented New Jersey. He said, “Look. We’ve got a semantic summing problem here. We’ve got two definitions. And they’re both equally good. The question is, ‘How do we resolve that?'” And the answer he gave was looking at the intention of the Constitutional Convention. And the intention here was to allow broad government taxation with specific limitations that would be called direct taxes, which would have to be proportional. And that was really a concern of the slave-holding states because they did not want to have taxes that would allow the North to tax their ownership of slaves. And so, what he said was, “This is not what I, as a framer, wanted. But it’s what we, as the framers, decided that there would be this broad taxing power, subject to these specific limitations, to protect the Southern interest.” And so, he found the, based on the nature of the bargain, the outcome was what he called, obviously, the intention of the framers. So it’s not a mathematical process, as some have been trying to do with corpus linguistics and so on, to just come up with a number. “How many times did we read this word in 1787?”

That’s a meaning. But it’s a process that says, “We take all of the possible definitions.” And there was more variation then than we might appreciate now, because the regional differences were so distinct. So many had been immigrants from different parts of Europe or different parts of what we now call the UK. And therefore, there were significant semantic differences that we actually only see if we go looking for them, which is the case here of the Excise Clause.

Richard Reinsch (11:58):

So it’s something, I was just thinking about your approach. There’s a problem. There’s something that requires a remedy from, say, in the Constitutional Convention or a legislature. A remedy is proposed, debated, discussed, and a compromise is reached. And I guess it’s like you’re really pointing to, “Well, what’s the compromise?”

Donald Drakeman (12:21):

Absolutely. “What’s the final deal here?”

Richard Reinsch (12:24):

Okay.

Donald Drakeman (12:24):

And, “How do we implement the deal in light of what they were trying to accomplish, not just what the words might be able to mean or what we think policy ought to be.” That’s exactly well said, Richard.

Richard Reinsch (12:35):

Now, many originalists; or maybe just me; from the first time I read Scalia’s Matter of Interpretation, think about legislative history as a grab bag and can tell you all sorts of things. Would legislative history, though, be key to what you’re doing? Or maybe Scalia was just wrong?

Donald Drakeman (12:52):

I think he was overreacting. I think that legislative history had been used badly. The Everson case is a great example where Justice Rutledge, who really drove the discussion of Jefferson and Madison and all the Virginia church-state battles as being the heart of the First Amendment. He later wrote to a friend, “This was really all about my worries about Catholics getting control over the public schools. And we had to stop it.” And the Virginia history was really convenient for that purpose. So he was able to take his preconceived notion of what the clause ought to mean and he wallpapered around it, this veneer of 18th century history. And it made for a good-sounding story. And I think what Justice Scalia, in those kinds of cases, and in statutory interpretation cases, saw, was that people doing essentially bad legislative history, you know? Sort of cheating the history. We’re reaching outcomes that were inconsistent with actually what the bargain was. And he tried to make a clear rule than… And you’re trying to get me to say a clear rule. And I keep saying, “You’ve got to go look for the deal!” Because it’s hard to have a clear rule when you have a bunch of people coming together to haggle over how to solve an important question of public policy. And I think we ought to go look to see how they wrestled with that and what compromises they made. So I think Justice Scalia was just trying to emphasize. And you actually can see, from time to time, he cites the framer’s debates. He found it tough to stick to the strongly-worded advice he gave.

Richard Reinsch (14:30):

Do you find any of the current originalists on the court or other justices using your method or parts of your method in their opinions frequently?

Donald Drakeman (14:41):

Well, one thing we see with the Supreme Court Justices is that they tend to spend less time talking about constitutional theory and more time actually doing it. And I would encourage more theorists to actually interpret and more interpreters to think about theory. This book, to some extent, was trying to bridge that gap. The Supreme Court routinely, from the left and the right? I was going to say in the center. I’m not sure there’s much center left anymore. But from the whole spectrum of the court, in terms of both their judicial politics and their actual political positions, have cited the framers. In fact, the Excise Tax case I talked about was cited again in the Affordable Care Act. Framers get mentioned. That’s been fairly routine. It’s been the realm of theory where a need to try to match a jurisprudential basis for original public meaning has come out. And it’s really drawn a sharp line that says, “We’re only looking for the semantic meaning of the words in context.” And that the most we can look at from the framers is how they used the words as just educated Americans of the time. Not that they were any sort of special…

Had any special track towards the meaning here. And I’m trying to reverse the polarity there and say, “We have to look at what the words could mean.” But when we find out the words could mean more than one thing, then the tiebreaker is what they were really trying to do, which is what interpreters and interpretive theory have said for about 2,000 years.

How do we take the answer to an old question and apply that same answer to a new set of facts? That’s been part of the tradition for a long time. What was new, and what I think originalism is reacting, or even sometimes overreacting to, is the idea that we’re going to take an old question and give it a new answer because the court believes that a new answer is more appropriate to the modern age than the old answer that the lawmaker gave.

Richard Reinsch (16:15):

No. Original public meaning, from what I can tell, in the scholar world, is the most dominant originalist school. You claim it’s an overreaction, though.

Donald Drakeman (16:27):

Yes. I think it doesn’t work in real life. Theory is fine at the level of pure theory. But if you actually are recommending that your theory fit with a real-life application, you need to be able to get a point where your theory and the assumptions in your theory overlap with the way the world really works. And the assumption of original public meaning is that, through looking at word use in dictionaries, we can identify a single best original public meaning. And I think, in practice, that’s not the case in many, but perhaps not all, constitutional provisions. And therefore, we need a way to decide which public meaning is better than which other public meaning. And that’s the role that intention has played for many centuries.

Richard Reinsch (17:20):

On this original public meaning and the search for the words, you have a chapter on their use of corpus linguistics, which the way I understand is, we can put together now technical databases and analyze words and really get systematic about how we think they were used in the time period. That sounds promising to me. Why do you not think that’s promising?

Donald Drakeman (17:43):

There are a lot of technical details in that chapter. And I will try not to give you all of them. The bottom line is that corpus linguistics is like a scientific experiment. It says we can collect data about a phenomenon and that we can analyze that data to tell us true things about that phenomenon. And so, you need to subject it to all of the questions that you subject to any other scientific experiment. “How do you know your data represents the phenomenon you’re talking about?” Turns out, for constitutional purposes, the main corpus that everybody’s looking at right now? Which has been a great effort, by the way. I think it’s a wonderful thing to have. The question is, what do you do with it? But it’s been put together with a collection of just a small handful of the papers of specific founders. So like four or five founders. And a certain number of things like newspapers, which weren’t really like the newspapers of today. They reprinted mostly sermons. If you look at the documents that represent the 10 largest documents in the collection, in terms of words? So if you’re searching for words and you say, “Wow. There are 10 documents that provide a large percentage of the words here.” Then, that’s where you’re going to get a lot of your information about word usage.

And only one of them was written by an American. All the rest were written by people who lived in England. And some were translations of things written in Latin. So is that a representation of the way the American public understood things? I think the answer is probably not. Then, if you say, “Okay. Now we’ve got…” Let’s say we’re going to, forget that problem for a minute. Assume it works. Now, let’s go to the next stage. How do we do it? We’re trying to figure out what excise means. Does it mean this broader definition or the narrower definition? And the typical way people go about that is they find out, in this database, that it’s been used, let’s call it 500 times. And their research assistants, usually law students, then read a snippet of the text around it and make a decision about what the word means in that context. So now, you’re saying that here, we have a word that’s in the Constitution that we have a big disagreement about what it means. And we’re going to take a bunch of law students, who may not have studied 18th century language or literature or history, give them 10, 15, 20 words around that word use, and have them assign a meaning. So basically, the same thing we’re trying to do with the constitution. “What’s it mean here?”

They’re doing 500 times.

Richard Reinsch (20:22):

Yeah. There’s something unreal about the process itself and thinking about how judges in our tradition… I mean, as you note in the book, across the centuries, have approached their craft. I’ve always thought this about corpus linguistics. It’s a craving after certainty that just isn’t there.

Donald Drakeman (20:38):

Yeah, absolutely. And I think, what it tells you, even in cases where the words seem to appear more often to mean one thing and not another thing, it shows you that there are multiple uses in play amongst the public at the time.

And why picking the one that, in this particular database, occurs most rapidly, perhaps because it’s in more sermons or because Thomas Jefferson really liked to use it, seems like just an artificial imposition of order, and as you say, certainty, on something that was much more fluid than that. And I think it’s a recognition that we need to have a tie-breaking mechanism. And I think it’s a useful thing to look at and to examine whether you feel as certain as you ought to, once you look at your method. But then, really, what are you looking for? You’re looking for what a lawmaking body was trying to do.

What they decided, not… I mean, these legislatures and constitutional lawmakers did not just pull words out of a hat and say, “We’ll choose these 10 words now. Let’s go onto the next clause.” They haggled over things that were important and made decisions. And we want to know what those are. And we want to ask judges to apply them to try to achieve the goals that lawmaker was trying to achieve.

Richard Reinsch (22:01):

A question that I have for you? And the best answer I’ve ever had to this was Michael Greve’s book, The Upside-Down Constitution. So when I started learning about originalism? And I’ve got Scalia and I’ve got Robert Bork and I’ve got Raoul Berger, those were early thinkers important to me. But I started thinking. “Well, what did they do before progressivism?” Which seems to be the launching point of originalism. “What did they do in the 19th century? What did Joseph Story do? What did John Marshall do?” I mean, how did they… I mean, these are men who really shaped a Constitution a lot, to put it mildly. Do you see your approach in how they crafted some of these legendary decisions?

Donald Drakeman (22:41):

I mean, absolutely. Interestingly, John Marshall, who we tend to hold up as one of the greats, was working pretty hard to make the court a more powerful political body. And so, in his own opinions, you see the word intention somewhat less. But otherwise, as I said earlier, Story said, “We’re looking for the intentions of the framers.” A law professor writing a commentary; in fact, it was a new edition of Blackstone commentary in the turn of the 20th century; “the method of interpretation employed in the Roman Law is the will of the Prince. And in all free countries, the will of the legislative body.” This is just the way people saw this. They also, by the way, understood that word meanings change over time. Because we now have this divided world between those who see the original meaning as correct and those who see some sort of updated or living meaning as correct.

We’ve lost the nuance that even Justice Scalia and some of his opinions picked up on, where sometimes, you have to update, you have to take into account that technology changes, that our understanding of the world changes. And so, is there a way to do that consistently with what the lawmaker was trying to do? And I really see updating as the good updating and the bad updating. And they’re opposites. The updating that has been part of the tradition for centuries says, “We have a clause. We applied…” Let’s say this law applies to telegraph companies. Now, we have somebody invented the telephone. Does it apply to them? Well, that’s a brand-new set of facts.

How do we take the answer to an old question and apply that same answer to a new set of facts? That’s been part of the tradition for a long time. What was new, and what I think originalism is reacting, or even sometimes overreacting to, is the idea that we’re going to take an old question and give it a new answer because the court believes that a new answer is more appropriate to the modern age than the old answer that the lawmaker gave. And that’s, I think, the line that is crossed when you go from a judge applying the will of the lawmaker to a judge applying the will of the judge. And I have another chapter that talks about the risks inherent in allowing small judicial bodies like Supreme Courts to make policy, which is just, it’s not something they’re good at. They’re good at interpreting laws in light of the intention of the lawmaker. They’ve been doing it for generations. They’re not good at figuring out how to make the world a better place in the future. That’s, for better or worse?

Big, bulky cumbersome, sometimes hard to deal with. Legislative bodies are better at that.

Richard Reinsch (25:36):

Yeah. Well, I like it when they also say… And it’s perhaps good saying Planned Parenthood vs Casey, where they say, to both groups, “You should drop this.”

Donald Drakeman (25:46):

Right.

Richard Reinsch (25:46):

That works really well. “We’ve made a decision here.” A question for you. Within originalism, most originalists say the ratifiers matter. You say the framers matter. What’s the significance of that in constitutional interpretation?

Donald Drakeman (26:03):

So one of the public meaning tricks is to say, “The law wasn’t made into law until the ratifiers ratified it.” And therefore, whatever the framers said or did is irrelevant because it’s what the ratifiers said and did that’s important. And since we don’t really have good records on the ratifiers, and we’ve just decided that the framers aren’t relevant, then all that intention stuff and all the debates and what have you are irrelevant. Which is, I think, a very clever argument. But it misses one of the framer’s great tricks. So the Articles of Confederation were in place when the Constitutional Convention met. And they had a provision on what it took to amend the Articles. And it would require, among other things, the agreement of all the legislatures of all the states. And that looked like it would be cumbersome. And so, the framers came up with this new idea of ratification. One of the framers said, “Who cooked up this idea of ratification? This is new.” And the idea was it could be ratified by conventions, not legislatures, and nine states instead of all the states. And so, it was. And so, it became the Constitution. Now that actually, if it had been part of what the articles had said, then you’d be all right. But it’s not. This was made up by the framers. And the framers, meanwhile, are doing this so that it looks like the ratifiers are really making the constitution. But it’s just a great big Wizard of Oz, “Pay no attention to the framers behind the green curtains.” Because it’s the framers who said it’s going to be law when it’s ratified. Nobody else. And in fact, it was contrary to the law at the time, which was the Articles of Confederation. It’s fascinating. So that’s one answer to that question, which is just, it’s a little too clever to say that it was just the ratifiers that made this into law. And then, secondly? And I think-

Richard Reinsch (28:02):

Could it be both?

Donald Drakeman (28:03):

Well, it is. And that’s where this next piece comes in, which is to say, you can’t have secret meaning of just the framers who were at the convention. Only they really knew what this meant. And the ratifiers didn’t know and the public doesn’t know. But we discover it 200 and some years later. And shazam. This had to be understood by the ratifiers and the public. Because otherwise, the ratifiers and the public wouldn’t know how to obey the law. And public meaning had to be used, even if it was sometimes public meaning that differed from state to state. And besides, there was a framer at every ratifying convention. And there were framers, other than James Madison, who later published his notes, of framers who wrote lengthy discussions of what went on at the Convention. So that what was going on, what the framers were trying to do, was information available to the public and to the ratifiers when ratification was happening. So they, for all we can tell, were on board with what the framers had done and why they had done it and had information to that extent. And then, for the Bill of Rights, where we have a lot of our arguments, those provisions were debated in the 1st Congress. And the House of Representative’s debates were carried in the newspapers. And so, our sources are their sources. And the people at the time saw exactly what we see when we look at them. So I think the idea that well, intentions? “Oh, good.” Because only the framers were huddled together and it was all in secret? It’s just not the case.

But in the Roman era, it was banishment and forfeiture of all their property if they interpreted other than just reading the words of the law. In England, they had this Star Chamber if people interpreted certain laws incorrectly, judges included. And there’s all sorts of judicial jurisdiction, curbing and legislation, to strip jurisdiction from the courts that has been entertained. And whether that will go somewhere is an interesting question. It’s beyond and above the questions in this book. But that’s historically what has happened is, at some point, the other branches of government have just said, “We’re really not going to put up with this anymore. And you should go back to what judges are supposed to be doing.”

Richard Reinsch (29:33):

You think about, so Madison’s notes? One scholar in particular has argued that he padded the score. Well, it wasn’t exactly producing sort of an accurate rendition. But I guess you could say we have a lot of different sources of the convention that you can put it together.

Donald Drakeman (29:51):

And you question the sources. We’ve got Madison, who was very pro-Constitution. And we have a leading anti-federalist, Luther Martin, who wrote a very long discussion of the proceedings of the convention. And he had his own views of what went wrong there. And so, in between all this, you can get the best sense you can at what they were doing. Now sometimes, you’re just not going to know. And if you don’t have evidence from the debates, then you go with the best evidence you have, which is, as Blackstone said, the meaning of the words as they’re ordinarily used. And if you have multiple meetings, then we argue about them. That’s legal history. Back in the day, way back in the early days of the British parliament, judges would get a tough issue of interpretation. They’d go over the legislature and say, “What do you mean?” I can’t do that with the Constitutional Convention. But it shows their view that what they’re trying to do is to accomplish the result that the legislature had in mind, not to take advantage of the language to come up with a good idea.

Richard Reinsch (31:01):

Yeah. I suppose… Well, one question. My understanding is the Committee on Style, which produces a formal rendering of the Constitution to be voted on. They slip terms in. They do things that weren’t exactly apparent, if you follow the length of the debates with certain scholars. How do you deal with that problem?

Donald Drakeman (31:21):

You know, it’s like anything in history. There are sometimes conflicting pieces of historical evidence that lead to somewhat different views of something that happened. If, in fact, those conflicts are strong and there is no particular reason to favor one over the other, other than what I think is the standard version in the law, which is the law says history is, which way makes it better for my client? You just say, as a historian, “Geez. This is unresolvable by looking at that particular evidence.” And that’s fine. If we were less certain about a lot of this stuff, we would probably have better decision-making. We need to be as thoughtful as we can about what we can know about the past and how much authority we give that. But that’s not a license to make things up in the future. It’s just to say, there are limits to our knowledge.

Richard Reinsch (32:14):

I was reading your book. The central problem here is still, whatever originalism you’re in, you’re confronted with various ideologies that just dismiss making intentions or public meaning of the founding a central part of the judicial decision. It might be where we start but it’s not going to be dispositive because of various ideological or policy needs. Overcoming that, it seems to me, ultimately is the major problem, that need to produce the result that certain enlightened members in the judicial class want.

Donald Drakeman (32:50):

I think that’s absolutely right. And that, for better or worse, law schools, for a long time, have started their students off on the case method and have taken students through the common law approach to judicial lawmaking by building case on top of case. And it’s a rare law school that teaches this history of statutory or constitutional interpretation along the lines that I have described in the book. And I think that’s a shame. We have this built-in feeling, for about the last probably 50, 75 years, that the law and the world is there to be shaped by creative judges. And my sense is that we could do; and this is perhaps my political sense, as well as my historical sense; with more of a dose on all sides of the political spectrum of that judges have had something they’ve been good at doing for a long time and it wasn’t setting policy. And a lot of times, policies aren’t particularly well-made by bodies that have to pick one principal over another, which is the way judges tend to go at it. And we should let judges go back to doing what they did for a long time and allow issues of major public import to be resolved by the people’s representatives. And I think we’ve gotten away from that. We’ve tended to assume that the Constitution is really a bit of an empty vessel for us to fill with good ideas, for judges to fill with good ideas. And that leaves interpretation out in left field. It’s an after-the-fact rationale for setting up good policy. I think a lot of policy questions are not solved by the Constitution and therefore, ought not to be solved by judges. But that gets into a whole bunch of issues of interesting jurisprudence that we probably could talk about on another call.

Richard Reinsch (34:50):

Yeah. I agree. Do you see a concern, just thinking about what prompted you to write the book, that a bit of a question in my mind is, are we just going to abandon interpretation at some point? And just formally admit what the court’s doing?

Donald Drakeman (35:06):

There are certainly constitutional theorists these days who say just that. That judges make policy, they should make policy. And the question is just whether they should pretend they’re interpreting or whether they should give just policy reasons for their policies. I think, if they’re going to make policy, they ought to act like policymakers and tell us why they really think this. And not because it’s post-hoc, layered on, constitutional rationalization. And then, from a separation of powers issue. And the rest of us just have to think about whether that’s a good idea or not. Historically, when judges have gotten a bit creative, shall we say, in their interpretations, lawmakers have fought back pretty hard.

Richard Reinsch (35:50):

Ours don’t.

Donald Drakeman (35:52):

Well, yeah. I mean, maybe that’s what the Biden Committee is thinking about. But in the Roman era, it was banishment and forfeiture of all their property if they interpreted other than just reading the words of the law. In England, they had this Star Chamber if people interpreted certain laws incorrectly, judges included. And there’s all sorts of judicial jurisdiction, curbing and legislation, to strip jurisdiction from the courts that has been entertained. And whether that will go somewhere is an interesting question. It’s beyond and above the questions in this book. But that’s historically what has happened is, at some point, the other branches of government have just said, “We’re really not going to put up with this anymore. And you should go back to what judges are supposed to be doing.”

Richard Reinsch (36:45):

Yeah. Donald Drakeman, thank you so much for coming on today to discuss your new book, The Hollow Core of Constitutional Theory. Thank you so much.

Donald Drakeman (36:54):

Thank you. It was my pleasure.

Richard Reinsch (36:57):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

Liberalism and the Family May 14, 2021

Richard Reinsch (00:18):

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today, we’re talking with Scott Yenor about his new book, The Recovery of Family Life. Scott Yenor is a professor of political science at Boise State University, and he is the Washington fellow at the Claremont Institute’s Center for the American Way of Life. He’s the author of several books on the family, and is also a frequent contributor to Law & Liberty. So Scott, we’re glad to have you on the program.

Scott Yenor (00:50):

Thanks for having me, Richard. It’s my pleasure.

Richard Reinsch (00:52):

So The Recovery of Family Life, the full title, Exposing the Limits of Modern Ideologies. What’s going on in The Recovery of Family Life?

Scott Yenor (01:02):

Well, the book is divided into three sections. The first section is really on what those powerful modern ideologies are that are undermining family life. I identify modern feminism, contemporary liberalism, and sexual liberation theories as really powerful ideologies that are shaping the way young people, and even now by the time we are middle-aged people, think about their lives, about themselves, about sex. The attitudes that are cultivated by those ideologies make it very difficult for people to imagine married life, to live responsible family life, to cultivate character in their children, sometimes even to have children. All of these basic things that we took for granted that a civilization needs can no longer be taken for granted. These ideologies are the reason for that, I would say.

Richard Reinsch (02:03):

We think about the modern liberal state, which under its official ideology, it’s going to leave us alone, largely, to pursue our own different visions or things we want to do or what we think is good. It’s going to leave us alone. Why should the modern liberal state concern itself with the family? Isn’t that just something private? I mean, does the law really care about family? Should it?

Scott Yenor (02:29):

Yeah. I mean, I think that no matter what happens, the state is in someway concerned about the family. It takes an official stance of neutrality, but it’s always legislating a kind of morality. Let me try to illustrate that with an example. I think the best example of that is obscenity law. It used to be that the state prevented the circulation of obscenity because it was worried about how exposure to obscenity would cultivate kinds of character, or kinds of states of mind in people, point them away from marital life, and that was the justification for limiting the circulation of obscenity. But, now that we’ve gotten rid of all of those limits, the state is officially neutral. You can watch pornography, or you can choose not to watch pornography. But, the circulation, the mass circulation of pornography makes it more desirable, more available. It appeals to something that’s deep within us. Therefore, the removal of restraints and the official stance of neutrality has done a lot to pornify, if you want to say that, the culture and to shape the minds of men and women when it comes to how their relationships will go. So it’s true that you can choose not to watch pornography, but it’s also true that by removing those restraints, the official stance of the culture has become much more open to it. There is ever increasing venues for both making and viewing it. There is more public acceptance of it. You could use other examples in the same way.

Richard Reinsch (04:18):

But now, with regard to the family, I’m trying to think about things that developed 40, 50, 60 years ago. I mean, I had a conversation with a older lawyer when I was just starting practicing. He had actually had been involved in marriage cases under the old fault-based standard for divorce, and had defended people against becoming divorced and trying to prove that fault had not occurred. But my understanding is that was thrown out, because the courts were flubbing it because they had so many people who wanted divorces. And so, basically, the people largely wanted this in terms of maybe the first wave of how America changed the public law regarding marriage. That this was a response to the democratic demand. I guess, one question to you is, was there just something about the way we did things in the past that people found oppressive?

Scott Yenor (05:22):

Yeah, I think they found it oppressive. However, their view of what was oppressive was shaped itself by the culture that they were in. I think, what the example that you’re using of divorce is an excellent example of that, because I think it’s a two-way street. If you change the law, you’re doing that partly in response to popular demand in a democracy for changing the law. Then once you change the law, you shape the way people think about those experiences. So no doubt, many more people wanted to get out of marriages by the 1970s. This was, perhaps, a reflection of a change made 50 years earlier in marriage law, and which unsettled marriage. And that change in the law rebounded, and then shaped the way people approached marriage and approached their experience within marriage. We often just focus on that first angle, or that first part of the relationship, the way that our laws reflect popular opinion, and we neglect the ways in which law shapes public opinion. That’s really what I try to emphasize in the book. I think it’s the classical approach to understanding how the laws shape the minds, the culture, our view of advantageous, good and just on family matters.

Richard Reinsch (06:54):

I was thinking about the descriptions that you have in the book of these different, you say ideologies, and I think about also anthropology as well. Talk about this, you call it the rolling revolution. Does the rolling revolution, does it necessarily aim at the destruction of the family, or what’s going on there?

Scott Yenor (07:10):

First of all, what is the rolling revolution? What I try to do is show how each of these three ideologies, but especially the ideology of feminism and sexual liberation theory, have posited for themselves a goal. The goal of feminism is to get beyond gender, so that no one’s life is affected by their sex, and no expectations about how you live would be determined by your being a man or a woman. Sexual liberation theory wants to get us beyond repression. Repression is a reflection of our desire to have somethings about our lives, our sexual lives, be private and pointed toward love and community. The changes that have been wrought by these ideologies have been toward those goals. Feminism and sexual liberation theory are trying to erase really important parts of human nature that are very difficult to erase, so that they have to keep doing more and more reforms. It’s an endless, almost infinite aspiration that they have set for themselves. Since it can’t be achieved, it always has more work to do. The family, I would say, is collateral damage on the way toward achieving those goals. Married life and family life really have a lot to do with sexual restraint. And if you’re going to achieve a culture that is beyond repression, you’re going to have to get rid of expectations that men and women will be faithful to one another in marriage, that they will produce children, that sex is related to procreation. You’re going to have to roll over those expectation. So that the family and married life are collateral damage in the achievement of the goals that these ideologies have set for themselves.

How do we account for the fact that marriage has really been destroyed in communities among the lower, more than half of the population?

Richard Reinsch (09:11):

Many people, women who call themselves feminists, would, I think listening to your description would say, “I don’t know if that’s what I’m aiming at. I just want opportunities in the workplace, to be treated according to my work, to not have double standards.” It is the case, they can look back and point to history where women were treated not just differently, but oppressed under quote, “the old regime.” How do you respond to that?

Scott Yenor (09:38):

I do think that those things are true. Many women just think of feminist as simply in terms of expanding opportunities or ending discrimination. The general ideology of feminism wants to sell their ideology on a level that is acceptable to many people. What I call that in the book is retail feminism. The goal is choice, they say, or opportunity, they say, but the difficulty is when you get down to brass tacks. How do you know when choice has been accomplished? The deeper feminist thinkers deal with these questions. They say that you can only know that women are freely choosing when they choose exactly the same as men, that the world has to be 50-50, so we would consider it to be an injustice if there were not 50% of the women being CEOs. They never say 50% of the plumbers have to be women, but 50% of the engineers need to be women. So these high status jobs need to be divided equally among the sexes. Choice is something that can be justified on liberal grounds. If understanding when choice, so-called, is achieved takes the feminist beyond liberalism towards a social engineering angle that becomes really necessary for feminism. So I think it’s one of the greatest successes of feminism that they sold their ideology in terms that are broader than their actual aims, and they’ve achieved a great political success as a result of that way of framing it. But, when you get underneath it, you realize that it’s a much deeper, more radical agenda that requires the remaking of an entire culture.

Richard Reinsch (11:30):

Yeah. I mean, as I was listening and thinking about your argument, the Scandinavian countries comes to mind. Sweden comes to mind where, to my knowledge, I think it’s Sweden where parliament, I think, their legislative chamber has to have a certain number of women. I think they mandated representation on boards. It has to have a certain number of women, corporate boards. And that seems to be what the situation you’re describing. When I think about this ideology working in American life, do we see it that way and do we see it impacting, say, the state and the family in an ideological way? I’m thinking about also family dissolution. Is that feminist ideology working in a lot of these cases, or is it something else, a lot of other things going on? What do you say?

Scott Yenor (12:20):

I think feminism works itself out more in the failure of families to form than it does in compromising families that do form. So I think it does have effects there. So I think the way I would respond to that is that feminism teaches women that a career oriented life is the most fulfilling life. It recognizes, or I’d say it stigmatizes those who would be, quote, “near mothers,” or “only mothers,” or “just a mother.” Therefore, it judges itself based on the extent to which women are career oriented. I should say, therefore, again, it valuates institutions based on whether or not they have achieved a balance between men and women. We see that the more career oriented women are, the less likely they are to enter into marriage early and to enter into marriage at all. The younger generations we see, the predictions are, that about 40% of the people who are now under 40 will never married. I think feminism considers that a great achievement, because people are prioritizing other aspects of their identity over being mothers or wives or fathers and husbands. And that is precisely where the rolling revolution, as feminists articulate it, want to take human beings. So I think the Swedish example was a good example, because there you have fewer families forming and a great career orientation among the women.

Richard Reinsch (14:02):

Within the modern liberal state, because I don’t see an America… You can correct and I know you know public policy better than I do. I don’t see the government so much directing outcomes according to this particular ideology. And if, in fact, it is the case that women are making these choices, I mean, isn’t that just something we live with?

Scott Yenor (14:21):

I do think the government is really involved in that. The way we treat education is a governmental matter. The emphasis in all of our education toward career orientation as opposed to what it looked like probably 60, 70 years ago, where there were some assumed sex differences in education, because there was assumed sex differences in future life roles. After you do that for a few generations, there is actually no one left who will sit there and talk about how there is an expectation that men and women will do different things in their lives in order to live complimentary lives with one another. There is also anti-discrimination laws. One of the rages right now on universities is trying to increase the number of women in STEM fields, because they’re thought to be underrepresented. There is a lot of, I think, violations of anti-discrimination laws in those scholarships and recruitment programs, because there is an aim toward getting 30% women in engineering. Then after 30%, it will be 35% to try to ratchet it up. So I think there are a lot of ways in which government promotes careerism, but the broader point that you’re making that I think I agree with is that there is a reflection of culture in all of this. The feminist way of thinking, the way of imaging what a woman and a man should be has been very successful in cultivating the attitudes and the state-of-mind of young people, and as I say, now middle-aged people, at this point. And because of that, whenever there is a disparity between men and women in a particular institution, people are embarrassed by it. Whenever there is not a woman on the faculty, it’s thought to be a problem just in itself. So there is no doubt, it’s a powerful culture, but I want to always emphasize that I think the culture has been built, at least in part, through laws, intensions in order to reshape it.

Richard Reinsch (16:25):

One of the interesting things about Charles Murray’s book, Coming Apart, and has been a source of a lot of interesting commentary, is how put together upper middle class families are. I would just mentioned, many of those are going to be two-earner households. Then Murray points out, but family life gets less stable, less married the more you go down the income distribution scale, so middle class and then working class, things really start to drop off. But, I would just take my experience in higher education working with a lot of academics, to the extent you’re going to have women who really think of themselves in this capacity. They actually maybe have, maybe are working and having strong families, stable families. Have you thought about that, that interesting disconnect?

Scott Yenor (17:17):

Yeah. I mean, there is two Americas when it comes to marriage. And so, the upper class marriage that Murray describes in the Belmont of America, it’s what Robert Putnam calls the neo-traditional marriage. The neo-traditional marriage, there is probably a lot of sex before marriage, which happens later. It happens after careers have been established for men and women. But after they are married to one another, they stay married, they raise children. The children are responsible. It’s almost the exact same stats when you look at the extent to which marriages stay together now as it was in 1980 among the upper 20%. And then when you look at the lower 80% in America, and I imagine this as the problem of rural America and the problem of urban America, where you see the marriage rates are a third of what they were in 1980. About 25% of people will get and stay married in the rural whites and urban blacks in America, and this is the failure to form problem. So how do we account for that? How do we account for the fact that marriage has really been destroyed in communities among the lower, more than half of the population?

My answer to that is that the upper class doesn’t enforce any kind of morality or sex roles for the lower classes. No one is prepared to be a wife or a husband in their education, in the expectations that people have for them and therefore, we shouldn’t be surprised that no one is actually fit for it. The examples have been erased. The education that one would expect to point people toward family life no longer does. There is no official teaching of what the proper role of a man is, and what a proper role of a woman is. Without those proper roles being taught, men and women are lost at sea, especially in the lower classes. So these people are not genuinely feminist. The women of the lower classes are not feminists. They don’t study Susan Moller Okin and Betty Friedan. But, they live downstream from feminism. Living downstream from feminism means that they live in a culture without expectations for what men and women should be. As religious practice declines among the lower classes, as the idea of sex roles decline among the lower classes, what we’re getting is two different kinds of men, either hyper masculine gang members or men who retreat into themselves and spend a lot of time playing video games and watching pornography. We’re getting women who want to be independent, but therefore don’t know how to attract and keep men around. And so, it’s a huge problem in the lower class, but I would say it’s caused by our official ideology.

Richard Reinsch (20:22):

The men is interesting. The data that I’ve read, 25% of prime working age men in this country do not work, which is a depression, Great Depression type statistic. There is not a lot of thought about that. I mean, there are people who write about it. But, that is a striking number. What do you make of that?

Scott Yenor (20:41):

Yeah. What I make of it is that when you don’t expect men to be providers, if you don’t give men a purpose for their ambition, for their work, if you don’t give them something to sacrifice toward, they are purposeless people. One of the things that over the course of human life that people have always aspired to do is marry, have children, be responsible for them. If you destroy that particular ambition, well, what are the men supposed to provide for? What are they supposed to channel their ambition for? How are they supposed to understand the sacrifices that they’re willing to make for something outside of themselves? So I think one of the great crimes of feminism is to stigmatize the idea that the most loving expression of male life, the desire to provide, is actually an expression of tyranny. And that has just effects downstream of feminism. That’s the problem we see in both rural and urban America.

The investigation that Tocqueville undertook is, well, why did America not fall for the idea that individuals are better off alone? His answer to that was I think had several aspects to it, but one was that Americans were almost all raised in families in an environment where that was expected and honored and there were strong roles for men and women. Another aspect of it was that Americans would get together for civil activity, but they were prepared for that because they already learned the sacrificed and lived beyond themselves in families.

Richard Reinsch (21:46):

One of the reasons why I’ve wanted to interview you is, looking at virtually every country in the West, it’s striking to me, I know it’s striking to you, that I don’t think there is one that actually has a replacement level birthrate. There might be one or two.

Scott Yenor (21:59):

Israel is the only one.

Richard Reinsch (22:01):

Israel has above, right? I mean, they’re like three.

Scott Yenor (22:03):

Yeah.

Richard Reinsch (22:04):

Yeah, three children per family. Jonathan Last, formerly of the Weekly Standard, now editor of The Bulwark, wrote a book about this maybe six or seven years ago, and describing it not just as a Western, but a worldwide phenomenon of flagging birthrates. When we think about the flagging birthrates, to me, that’s just a big signal that there’s problems in the moral ecology, social, cultural ecology of Western countries. But to the extent there is reflection and thinking about it, well, government should give people more money and more resources. He wrote a piece on this recently for Law & Liberty, in which he didn’t think that was necessarily going to do much. What do we know about those policies, just in terms of trying to deal with this problem, which to me indicates you’re onto something in thinking about the lack of family formation?

Scott Yenor (22:54):

Yeah. I mean, many countries have these policies now. They seem to have a marginal, short term benefit. Hungary has adopted, I think, the most generous policy on these matters, and its birthrate skyrocketed from something like 1.2 to 1.35. Conservatives all across America took this as evidence that we need a family policy and rallied behind Mitt Romney’s child assistance program. I’m not opposed to the child assistance program, but I just think we have to have genuine expectations for what any of these programs can do. The decision to have children is not an economic decision. It’s a decision that is shaped by what is honored in a political community and how much hope the human beings have for the health of their political community and their own lives. If people have no faith in the future, if people do not trust any of the institutions of government, if they don’t trust churches or schools, if they think the country is headed in the wrong direction, all of these things are just indicators that they don’t have hope for the future of their country and therefore, they are less likely to have children. Another point is, if a political community doesn’t honor having children, it doesn’t consider it part of a good life, the genuine narrative of what contributes to a good life, there is going to be fewer people marrying and staying married. These factors are much more crucial than the marginal economic benefits that you can get from child assistance programs. When I wrote that piece for you, I got a picture from someone sent to me by email, which was of a very impoverished Nebraska family living in a dirt hut with cornstalks as their roof. They were standing outside of this and there were 13 children and a mother and a father. I don’t think they were asking for the child assistance program. They weren’t, because the family life was honored and there was a lot of hope in the country, and this was probably something like 1880, that the best days of the country were in front of it. So I think the birthrates are genuinely a crisis of confidence in civilization and an indication that marriage and family life are not honored in that civilization.

Richard Reinsch (25:24):

Something that I think about is just prosperity itself and how that changes community, because community is hard. I mean, I’m an advocate. I mean, Robert Nisbet is a significant thinker in my life, but I recognize how hard they are, how hard family life can be, how the people closest to us can be hard to deal with. People have those experiences. Another way of thinking about this, and get your reaction, prosperity, a welfare state that it underwrites, makes individualism fun. We can have community on the cheap when we want it.

Scott Yenor (26:02):

So let’s think about that for a little bit. I mean, so the great thinker of individualism that I turn to when I think about this stuff is Alexis de Tocqueville. He saw America as one of the… There is no inherited ranks in America. The idea that the individual heart is a standard of justice and where the good life will be lived, “self-interest rightly understood,” he called it, but it’s a moral center, though he recognized the individualism of America. The investigation that he undertook is, well, why did America not fall for the idea that individuals are better off alone? His answer to that was I think had several aspects to it, but one was that Americans were almost all raised in families in an environment where that was expected and honored and there were strong roles for men and women. Another aspect of it was that Americans would get together for civil activity, but they were prepared for that because they already learned the sacrificed and lived beyond themselves in families. But they would get together in civil associations to accomplish great things. It was more powerful when people banded together and therefore, government didn’t have to become very powerful. And so, I think, really at the root of the whole way of teaching individualism or enhancing the purview of the individual for Tocqueville was family life. I think Americans understood that for the longest time. Really, only until the powerful ideologies that we’re talking about here became prominent in the American landscape gives a Tocquevillian synthesis, or the way of improving individualism fall apart. The argument was that community is hard. Family can be oppressive. Family can be the source of great disappointment. There is something true about that. So let’s throw out the bathwater and the baby went with it. Oh, and the babies went with it. I’m going to have to use that somehow in the future as a tagline.

Richard Reinsch (28:11):

And what I think too. I mean, I think about that a lot. Family can be oppressive. It can be a source of disappointment as you say. But then the question is, what are you going to replace it with? Because as we look to, say, countries in Europe, which I think socially are a generation typically ahead of America, the answer is not much. I mean, a large welfare state. Individualism, creature comforts, and things like that, it seems to me that’s not the most satisfying way to live and yet, there it is. A question for you too, you mentioned Tocqueville, I mean, that was something I was going to bring up, is this… You’ve got these ideologies in your book that you describe. Is it that or is it just something, maybe this isn’t opposed to it, but is it just democracy itself leads us towards egalitarianism, leads us away from these sorts of arrangements where people are marked out to do particular things and it just, democracy over time, just flattens us? You’re right, Tocqueville pointed to things he thought that would make America stand out. But it’s just this slow process that we’re going through and I don’t know how it ends.

Scott Yenor (29:23):

Yeah, I mean, that’s something I think deeply about too, Richard, because the whole decline of family life and marriage do seem in some way to be the working out of the liberal principles of liberty and equality, which are right there at the beginning, and is there no stopping point for these particular principles? We can understand equal protection of the laws or equal treatment of the laws, but feminism takes that same principle and says that there needs to be equal outcomes between men and women if there is going to be a just society, but it’s still the principle of equality. How can we find a limit on equality, stop it from becoming equal protection and becoming equality of resolve? Do those qualifications on equality have to come from outside of liberalism? I think the answer to that is yes. They have to come from outside of liberalism. So liberalism is friendly to those things that come from outside of it. It’s friendly to the idea that some limits on equality will make human beings happy, will make them better, will make for a self governing community better, will make people more civilized. So liberalism is open to those qualifications. So what I try to spend a lot of time doing is showing ways in which we can leverage the resources within human nature, within public opinion still, so that we can ratchet back some of the aspects of the rolling revolution. But whether or not I’m hopeful that those things will be accomplished is another matter.

Richard Reinsch (31:01):

When we think about immigration policy in Western countries, I mean, we roll off this statement that, well, we need it. We need more immigration because of demographics, aging demographics, not enough children and so, we’ll have to have immigration. Well, one, I understand that argument, I guess. I always tend to think in the back of mind, well, what does that mean about us thought, that we need people, in many cases? In Europe’s case, you’ve got people from a different civilization coming in, which is going to inherently bring problems. But I think that’s a question I have. Isn’t there something wrong with us profoundly?

Scott Yenor (31:37):

I think about that question a lot too. One of the things I went and wrote for Law & Liberty about a year ago was an analysis of an old book, Christianity and Classical Culture. I looked at what was happening in the Roman Empire, because people recognized it was falling apart. The things that characterized that falling apart were steadily declining birthrates, the desire to integrate whole classes of people from outside of the empire within in the empire, that is to become Roman citizens, the Barbarians, in this particular cases. I think all of these thing go together, declining birthrates, failure to marry and live for beyond the short term, decadence, political decadence. We call it progress, because it’s progress in the rolling revolution. But, I think all of these things are ultimately signs that civilization is teetering on the edge of collapse, and that the society has become decadent. It’s really hard to image. I mean, people send me a lot of articles, because I write a lot in public these days. Just in the last two days, I’ve gotten articles like, “Father Wants to Marry Daughter, Adult Daughter,” from The New York Post. There was an expose about a new kind of pornography. I can’t remember its name, but you can own your own pornography and become your own agent instead of having to use something like PornHub as a middle man. These things are all really celebrated. It’s really hard to imagine that any healthy political community would celebrate what we celebrate. We can only really understand what’s going on there in terms of this next roll in this revolution that’s been going on. But, as a civilizational principle, something that you can imagine lasting 100 years or 50 years, it’s difficult to see these ideologies as very fruitful. I think, one of the leading edges in our understanding of political decadence is this collapse of family life. Another indication of it is the fact that we’re willing to make up for it by importing new people into the political community. Historically, that’s never led to health. Luckily, no one knows anything about history anymore, so they can’t talk about Rome.

Richard Reinsch (34:03):

The point has been made too, America was… Up until I think 2008, from things that I’ve read, we had a positive birthrate, largely I think because of new immigrants, and now we don’t. Part of that, the pandemic is working and then the financial crisis in 2008. I don’t think they’ve ever really recovered though in the last decade. Something people will say is, “Well, people who are newly arrived to this country aren’t having children the way that we expected.” I tend to think to myself, “I guess, we have a faster acculturation process maybe than we thought.” The modern liberal state as you think of it… I mean, there are a lot people, conservatives turning against liberalism broadly. Do you see the modern liberal state being the problem necessarily, or is it not necessarily that, it’s… I mean, and I guess maybe this question answers itself with your idea of the rolling revolution. So if we did have a classic liberal state, could we just put these things to the side and say, well, the state is not really going to be concerned either way. It’s just going to focus on basic tasks. Would that be a better way to go and just try and get out of all of these cultural war scenarios and let private institutions work?

Scott Yenor (35:15):

Yeah. I mean, there is good solutions and there is less bad solutions. And so, the way I would rank them is that a state that’s actively trying to break up the family is worse than one that actually takes a night watchman’s approach and doesn’t do that much damage. I still think there is a real limit on what can be accomplished under such a state, but the situation to be in is one where the state favors a kind of indirect support for an enduring marital form between a man and a woman. So perhaps, we’d want to work toward limits on divorce. There would also be a culture that would be shaped through regulations that would limit things that are hostile to married life. So once again, we’d talk about limits on pornography, but also things like limits on maybe adultery can be a crime instead of just a civil matter. This was the old way of approaching these matters. I think there is wisdom in these old ways. I don’t think they can be accomplished in the same way, but the general tenets of the liberal state are that the state should favor a particular kind of marital form and the state should be interested in cultivating an environment where people are more likely to marry and stay married. Those are things that can’t be really thought of in terms of just retreating. But retreating is obviously better than active hostility.

Richard Reinsch (36:53):

If we think about states and localities had through most of American history a very strong moral police power. And so, things like adultery were, in many cases, illegal. I mean, many things are proscribed that if people knew about it, or if they’re told about it, they can’t believe it. The idea being that it would undermine the family and that would undermine community and social, political order. I guess, that’s not something people now are going to agree with. A libertarian idea is well, let’s just get the state completely out of all of this stuff. Easier said than done. I asked that question too as a, do I see… I mean, we have people to point to. We have a government that just recently passed policies that the Biden administration for the next year, I think, is going to pay every family with a combined income under $150,000 a year a monthly payment per child. Can you confidently say that a federal government and state governments undermine family life, or is it more of just a cultural and social choices people are making?

Scott Yenor (38:01):

Yeah. I mean, I think I can confidently say both.

Richard Reinsch (38:03):

Okay.

Scott Yenor (38:04):

So I mean, when you look at things like sex ed, which is now a pre-K thing in some states. Certainly, there is pretty radical agendas in all states. We’re just actually having some of that come up here in Idaho where there is a pretty radical sex ed curriculum in the public schools for first through third grades where… It’s a family show, so I won’t discuss exactly what’s going on in that curriculum. But, I will say that one of the representatives was going to read from the state’s House floor what was in the curriculum and she was ruled out of order because it was indecent.

Richard Reinsch (38:40):

Interesting.

Scott Yenor (38:41):

Which is a great irony. Basically, that’s just the next roll in the revolution is the sexualization of children. Now, that is happening in the culture. There is no doubt about it. You can see that in commercials and television shows and probably teen magazines and things like that. But, it’s also an intentional government ambition. It’s happening all over the country. They’re moving in tandem, so they’re probably even coordinating their actions. And so, I don’t think that either of them exist in the absence of the other. But, the important thing that you’re talking about there is that just limiting what government does, it’s probably not going to save as much as you’d help. But, it does give parents more space to operate if government isn’t actively undermining things. So as I say, the first thing is, do no harm. And then see if you can do good. And so, just removing government from sex ed would be a kind of neutrality. It’s interesting that no matter how much we confess that we’re a liberally neutral political community, we haven’t gotten government out of the sex ed business. It’s gotten more and more into it, trying to do a sex ed in a neutral way. But obviously, peddling a morality to the youngsters who are in there, and parents have to do a lot of counteracting. So I think the framework you’re setting up is a good one and we should recognize that both of these, of the elements of the law and culture, are working in tandem in the same direction.

Richard Reinsch (40:13):

It’s interesting to think about there. Indiana proscribes any sexual education in the government schools here. I mean, think about the homeschooling rising. There is an interesting article I was reading on these hybrid home schools too that have spontaneously formed, classical schools that have formed. I mean, is it the case too, I think people have already just… Many people are trying to exit and have exited and are just trying to build again. I mean, that seems to me also a solution. I guess, in my mind, the political battles have really gone nowhere. Maybe, it’s just the best you can build new institutions might be a much more, or a part of a more effective response.

Scott Yenor (41:00):

Yeah, no, I agree with that with one qualification, that is even these carve outs that people are seeking to build are a part of America. Therefore, they’re infected with the same aspects of the rolling revolution that the rest of America is. I mean, what I’m hoping to do is, through the book, describe the various ways in which these powerful ideologies are shaping our lives unwittingly, even the enemies, to some extent, of these ideology accept some of their premises. And so, that building new communities or trying to find ways out, first, it’s never going to be enough. It’s a short term strategy, but it’s also difficult because of the hegemonic nature of American culture to find a way out. So it’s necessary, I think in the long term, to gain back ground to try to win back institutions, try to identify institutions that are teetering and try to make them more solid. A retreat is obviously a losing strategy, so there needs to be selective offensiveness in order to win one’s own space to live a life.

Richard Reinsch (42:11):

Scott, I think that’s a good way to conclude. We’ve been talking with Scott Yenor, the author of The Recovery of Family Life. Thank you so much for joining us.

Scott Yenor (42:20):

Thanks for having me, Richard.

Robert Nisbet, Community Organizer May 03, 2021

Richard Reinsch (00:19):

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Mark Mitchell about the ideas and work of Robert Nisbet. Mark Mitchell is the Dean of Academic Affairs at Patrick Henry College. He teaches in political theory. He’s authored a number of books, The Limits of Liberalism, The Politics of Gratitude, and a book on Michael Polanyi called, Michael Polanyi: The Art of Knowing. He’s also the founder, a co-founder of the webzine Front Porch Republic. As my friend, the late Peter Lawler would say, “He’s a porcher,” and that’s all for the good. Mark Mitchell, thinking about Robert Nisbet, welcome to the program. How did you get interested in Robert Nisbet? Why did you gravitate towards him?

Mark Mitchell (01:06):

The first time I encountered Robert Nisbet was in graduate school at Georgetown. The Quest for Community was assigned to me by a late Dr. George Carey, who was my mentor there, and I think it was a course on conservative thought and he just gave me a pile of books to read and this was one of them.

Richard Reinsch (01:27):

Excellent. Thinking about Nisbet there, when you think about his career and what he had to offer, what did you gravitate towards?

Mark Mitchell (01:34):

Nisbet starts with a psychological insight that human beings are creatures of community. We long to belong. What he worries about is the demise of the kind of associational life. When those dissipate, when we lose the possibility of inclination to affiliate with church, with local organizations and so on, the longing for community doesn’t go away. And the only thing left that seems solid enough, that seems permanent and attractive enough to warrant our allegiance is the national state.

In many respects, Nisbet represents a sort of updated version of Tocqueville’s project that Nisbet brings Tocqueville’s project up into the second half of the 20th century. And in that respect, he provides, I think, a valuable analytical source for helping us to understand our own situation, even though in some respects, our situation has changed since Nisbet passed away in 1996, but in many respects, he understood the trajectories we were on. I think he wouldn’t necessarily be surprised by the situation we find ourselves in now.

Richard Reinsch (02:14):

Yeah. What alarmed Robert Nisbet, what drove him to write the work he’s most famous for, The Quest for Community, which was published in 1953?

Mark Mitchell (02:22):

It was what he understood as the rise of, and total domination of what he called the monolithic state. And what he does is a kind of historic analysis of social and political forces. He points out that in the medieval world, sometimes we mistakenly think that the King for instance, had absolute power and was without rival, but he points out and he does so in ways that are very similar to someone like Bertrand de Jouvenel as well, whose book On Power, I think can be fruitfully read in conjunction with Nisbet, that in the medieval European world, how was it centralized? There were rival centers of power. Surely the King had power, but the nobility is constantly struggling against the King. The church has a kind of political role as well as the spiritual role. What you have is centers of power competing with each other. This has the effect of limiting the power of all. There’s ebbs and flows. But as Montesquieu puts it in his book, and this is something that was influential in the thinking of the American founders, is that the only way to limit power is with rival powers. What happened over the centuries is the nation state, the centralized political national power gained ascendancy, and there’s a complex story there, but that it includes things like the granting of titles of nobility to be commoners, which in effect waters down the power of the nobility while achieving allies in the nobility. In addition, it includes the King doing things like giving grants of largesse, giving goodies to the people as a way of undermining their affection and the relationship with the people, to the nobility. What you have eventually, according to Nisbet, is the consolidation of the national political power and the creation of the people who are isolated, individualized, and those are the two nodes of social existence. It’s very similar to Hobbes’ vision for society, an absolute power and individuals that directly comport themselves vis-a-vis that national power. This creates a power of unimaginable strength, and there’s nothing to compete with it.

Richard Reinsch (05:01):

The Quest for Community, as I was rereading the book in preparation for our interview, what struck me, and I don’t think these were facile comparisons, but how remarkably relevant the book is right now, 70 years, roughly in the future. And obviously it’s not 1953 when he wrote this book. I think he started writing it in 1950. He was in his late thirties. I think it was published when he was 40 years old as a faculty member. He was asking questions about these losses of forms of community underneath the forms of a modern centralized, progressive state. Obviously, World War II had transformed America. The New Deal was in the process still of working through America and making changes. He sort of understands… I think what struck me reading it now is we are community questing, seeking beings. We will have it in one form or the other. And in that respect, one begins to understand sort of mass identification as a strange form of community building.

Mark Mitchell (06:10):

Right? He starts with a psychological insight that human beings are creatures of community. We long to belong. Throughout most of human history, there have been a variety of overlapping complex points of association, family, group and so on. What he worries about is the demise of the kind of associational life. When those dissipate, when we lose the possibility of inclination to affiliate with church, with local organizations and so on, the longing for community doesn’t go away. And the only thing left that seems solid enough, that seems permanent and attractive enough to warrant our allegiance is the national state. So, people that are radically individualized, isolated, and alone are drawn naturally to the national state as a form of community. It becomes what he calls a redemptive community, it takes the role of these other associates. It takes the role of the church, he makes this point several times. With the decline in affiliation or membership with the church, the state steps in as a kind of pseudo redemptive community. There is a kind of religious impulse that lies behind this gravitation towards state affiliation.

Richard Reinsch (07:38):

Rereading The Quest for Community also brought to mind this notion, it isn’t just religion, it isn’t just anthropology. It isn’t just creedal, speaking of Christianity, it isn’t just belief, but it’s the identity, the participation, the concrete reality of religion in people’s lives. He said something similar about the family too, and what local community means to you. If these things are not functional, you don’t see them as a part of making your life whole or concrete or standing it up in any way, you start to retreat from it. It becomes invisible to you. He said underneath modern standardization, centralization, that was undoubtedly the case. How does that hold up?

Mark Mitchell (08:25):

Nisbet’s work is pervaded by a sense of what we’ll need to think about that’s properly human in terms of scale and national community is not properly human being, that’s not the primary locus of belonging. We need to think of neighborhoods and families and parishes that are, exist on a scale that is suitable to our psychological and social needs.

It’s quite true. One of the things that motivates this dynamic is a false understanding of freedom. He knows that in the 19th century there was… He dispositioned to understand freedom as relief, as emancipation, as the extrication of any commitments or relationship from institutions that seem to impose duties or restrictions on freedom. He calls that a false freedom, that freedom is a central part of this discussion that he is having, and what we have is a pseudo freedom that doesn’t satisfy. As a result, we go looking for the very things that we’ve abandoned and because those things have been left behind and in some respects, disintegrated by state power, the only thing left is this national state seeming to hold out its welcoming hands as a source of meaning. And in the other hand, obviously, its social services as goodies that the state offers as kind of an incentive to command loyalty.

Richard Reinsch (09:39):

I think it was the 2016 Democratic National Convention, whatever banners hanging that said, the government is the only thing we all do together. I think in the progressive understanding, that’s quite true. But, Nisbet would have understood the sentiment where that issued from. Thinking of Nisbet on these sorts of losses of forms of community, and I like what you said, because as I was reading him, he talked about words that sort of define an era. The late 19th century we had rationalism, individualism, the notion that one becomes free to the extent you are sort of thrown back on your own resources and you’re not sort of working within a civilizational inheritance of any kind. I mean, that’s clearly the idea of the French Revolution and much of social contract thinking. And he had said, “Well, where has really this has left us.” In the 1950s, he’s seeing, I mean, of course we think of the 1950s and the popular mind as an era of conformity of women not working, of all these sorts of things that we think are wrong. He thinks alienation is defining America and the coming apart of America already.

Mark Mitchell (10:47):

Isn’t that interesting that in the 1950s, the decade that we sometimes tend to look back on as idyllic, that Nisbet is identifying a kind of illness, social illness that he thinks is maybe embryonic in the 1950s, but certainly is growing. We see, I think, the fruits of this today, Nisbet was, as I said, concerned with the decline of church affiliation. He was not, I don’t think, a religious man personally, but he understood the importance of religious form and the social function that the church affiliation had. He predicted, I think, and understood that that outlet, that impulse is going to be satisfied. I think if we look around, we can see a kind of a religious fervor in so much of our politics today. If you think of how identity politics, for instance, seems to be so consumed with the kind of religious fervor to purify and to perfect, this is a religious kind of sentiment and it’s seeking to harness the power of the state to bring about a kind of redemptive outcome. I think Nisbet would not have been surprised at this at all.

Richard Reinsch (12:06):

No, and I was going to raise that point because he has a discussion of communism, which I thought was very provocative. He said, “The doctrines that we are surprised that people would believe in communism when you look at the ideology.” He said, “But we’re missing what it’s really offering many people.” He sort of tracks what Whittaker Chambers, the great anticommunist writer says about communism. Chambers says it gives people a reason to live and a reason to die and I think Nisbet would agree with that. But Nisbet says, “No, it’s community building.” It’s this opportunity of people to do things with other people to enact something, achieve something that matters. And so it’s filling people with hope and a sense of meaning. That’s the power of communism in the West and the reason why, particularly some of our most brightest and sensitive people are attracted to it. As I was reading that, I thought exactly what you were just saying with identity politics. And it also adds, I think it’s not for nothing that this thing really kicks up in the midst of a government imposed lockdown and we have this horrible thing that happens in Minneapolis. Then the next day we wake up and all you hear about is systemic racism and the need to redeem America’s past, or not redeem America’s past, but wipe it away and build something new.

Mark Mitchell (13:22):

I think that’s right. There’s sort of a coalition or a coming together of certain events, including as you say that the George Floyd riots and the coronavirus, that sort of perfect storm of events that all indicate this longing that Nisbet is talking about. A longing that has been misdirected and it’s coming out in ways that are, I think, deeply troubling.

He knows even in a later book called the Twilight of Authority that was published in 1975 and started being the wake of a long protracted war and the recent collapse of a president, things that sound very similar to our situation. He notices that the rise of religious fervor and a kind of irrational religious impulse. I think we’re seeing this certainly on the left, but also on the right. It’s hard to look at what happened January 6th and not see a kind of religious, a cultish impulse that seems to be animating certain facets of the right. Again, this is a longing, it’s kind of bursting out of a longing that is not finding satisfaction in the natural organic associations that are property human beings. I think the term that’s useful here is, even in terms of, or in the relationship to the communist enterprise, to the national socialism or to what we see today is human scale. One of the things that I think Nisbet, he mentioned this term a time or two, but I think it just pervades his work is, we’ll need to think about what’s property human beings in terms of scale and national community is not property human being, that’s not the primary locus of belonging. We need to think of neighborhoods and families and parishes that are, exist on a scale that is suitable to our psychological and social needs.

Richard Reinsch (15:17):

The thinking there too, this irrational, so with the Qanon conspiracy, which was news to me until the last few months. I didn’t really understand what it was doing. Now, I think I have a better handle on it. And apparently some of the people who mobbed the Capitol on January 6th were really fired by this. This drives their thinking and actions. The woman that was shot and died, who was a 14 year air force veteran I read, really did believe in this and was behind her motivation for being there that day, I’ve read. Also thinking previous to that mob was the Jericho Prayer Rally, which I read about, I watched some footage and it seemed to be running Trumpism, America and Christianity together as one thing. It leads you to think there’s, it is something like the concrete forms in people’s life aren’t providing satisfaction, or maybe people have irrational expectations for politics and it’s sort of leading to this, these sorts of outbursts. As I think about that. And I’m looking back to Nisbet. We’ve talked about Nisbet sees these traditional forms falling off, and this has continued to happen. I mean, you think about the 1950s, but as I’m reading this and I’m thinking about family, religion, this was… Most people would say, this is a high watermark for religion in America in terms of participation and attendance certainly. Certainly for Catholicism in America, this is part of the Golden Age. Family life is very sound, at least in terms of divorce rates. Out of wedlock, births are very low and all of these things have sort of changed dramatically as we go forward. Certainly in our day now, I mean, it’s almost abnormal. I think like over 40% of children are born outside of marriage. Marriage rates themselves have declined. I guess these traditional forms seem to increasingly be falling off and being filled by these voids. How would Nisbet, though? Does he offer us any ways to think positively about this and what we might do?

Mark Mitchell (17:24):

At the end of The Quest for Community, he argues that there’s two ways of conceiving the state, the national or monolithic state, and then he would discuss the pluralist state. He argues that what we need is a new laissez-faire, a laissez-faire not of individuals but of community. And he does suggest and argue that the purpose of the state is to support and encourage associational life. Plenty of critics of The Quest for Community have complained that his few pages of solution doesn’t really stack up hopefully, against the 200 plus pages of analysis leading up to the last few pages. But he does try to expand that a little bit in his 1975 book, Twilight of Authority and never left. I think that’s the weak part of his analysis. What do we do? Because even in Twilight of Authority, he notes that it’s sort of a continuation of development of his Quest for Community book. He argues that the attractiveness of the nation state is beginning to wane. And this may, in fact, he’s saying, provide space for the rejuvenation of the kinds of associational life that he thinks is so vital. He even makes a point that the rise of globalization that is helping to undermine the strength of nation states may help to facilitate a new birth of localism. Would that he were right, but when you think of the other kinds of dynamics, for instance, a worldwide war on terror, that’s been going on now for two decades, this helps to embolden the nation state, expand the nation state, a worldwide pandemic. These have not served to undermine the aggressiveness of the nation state, but have actually served to embolden and expand the power of the state. I wish that something like a new age of localism was on the horizon, but I guess I don’t see a lot of reasons, I think.

Richard Reinsch (19:29):

A couple of things there, and I had similar thoughts in thinking about Nisbet’s analysis. It does seem so Brexit, a lot of the political forces that congealed around Trump, challenges to European Union authority, not just in Britain, but other countries. I don’t see in this, that sort of nationalist fervor that Nisbet was scared of, or that Nisbet could have identified. I don’t see that sort of nationalism as an ideology of barrier foes and it becomes us versus them. Parts of that are there, but it seems like currently it actually is a desire to recover this concrete, political reality on behalf of the constituted people or politically constituted people, and that could be a positive development. It could move on from there into various, into damaging ways, but that he actually may have been onto something there. I mean, I think people have looked at aspects of globalism and thought, okay, where does this leave 40, 50% of our population? Another thing that kind of comes to mind, and I think it was a failure. The War on Terror, I think most people just look at that as something of a failure in terms of its global ambition. It achieved something concretely in protecting America from further terrorist attack. But a lot of the other things, it did backfire on America. Certainly, as we look at our forces in Afghanistan, it’s just sort of head scratching. What are we still trying to achieve? I think opinion is coalescing around that. Certainly what we’ve tried to do with China and bring them into some sort of global liberal democratic project has just massively failed. I think leaders in both parties are recognizing that. But, the concrete reaction, or the concrete attempt, one, to implement something like Nisbet’s ideas was the Bush Faith-Based Initiative, George W. Bush’s Faith-Nased Initiative, but that drew all sorts of reactions because it seem to be bringing the government into religion, or into nonprofits and it would weaken those non-profits, a lot of conservatives thought. That’s one way you could see government trying to both relinquish power, but stand new forms of community up.

Mark Mitchell (21:34):

Yeah, I think that’s right. I posed the question or what at least one question is, what is going to happen with the sort of populist resurgence that we saw maybe signaled in 2016. The election of Donald Trump seemed to be an indication of a populist movement, the Brexit seemed to be in an indication of that. Is that carrying into hopeful directions, maybe in some respects. In political terms, one wonders with the domination of the democratic party. How much of say, something like the Green New Deal is going to be implemented, which I think Nisbet would say is a perfect example of kind of religious fervor. We’re going to save the world. There’s a kind of apocalyptic language that the world is going to end if we don’t act aggressively, broadly and faithfully. And this seems to open up tremendous opportunities for the expansion of state power. When you see the kind of aggressive movements that are going to be made and already are being made against systemic racism and patriarchy and all the things that seem to be so deeply infecting our society, so the story goes, this seems to create opportunities for a dramatic expansion of state power and the demise of, or constriction of the freedom of individuals to associate in a kind of pluralistic associational life.

Richard Reinsch (23:04):

As I was thinking and listening to you, there’s something, this aspect of our politics of the Green New Deal, one of the architects of it, if you want to say architect, admitted privately, because I think he was working for Congressman Alexandria Ocasio Cortez, that this was all about, really, this is about using the nation to control people and to bring the economy underneath the control of the government and using this sort of ideological wedge to do it. Another aspect of our politics that sort of drives this is social media and social media obviously, the lifts you out of a place and puts you into various forms of contact with people all over the world, not just in your country, but obviously, people who aren’t, you don’t see them as people as attached as having a life, a biography, a story you’re just put face-to-face or with their avatar, I should say, in some form. How would Nisbet think about social media?

Mark Mitchell (23:53):

He notes the rise in modern world of what he calls pseudo forms of friendship. He’s writing this in 1950s, early 1950s, and pseudo forms of friendship certainly seems to be a pretty good description of Facebook, where we claim to be friends with a variety of people, or we even turn that into a verb, we friend people. But it’s superficial and friendship then becomes something that is disembodied and lacks the thick kind of qualities that constitute genuine friendship. Again, I think he anticipates this, even though he doesn’t see the actual technology. And in so far as some of our social media technology, gives individuals a sort of short term illusion that they are making contact with others, that they belong, that you can belong to a group by liking a post or signing a petition or whatever online. This is, again, a kind of parody of the true kinds of association of life that will satisfy the kinds that Nisbet sees so clearly are necessary for a human life and for thriving. To get this very clear, for him freedom, political freedom thrives in cultural diversity, and this diversity is diversity of association, that the state needs to create the space and opportunities for different people to associate and to express their own proclivities and differences and preferences in a way that’s unimpeded by the state. That doesn’t seem to be the vision that’s being handed down at this point.

Richard Reinsch (25:52):

No. The part of government that would be most able to accomplish that would be the representative branches, Congress, Senate, and then at the state level, the state assemblies. Those are the weakest parts of our government. The executive branch is incredibly strong. We get very excited about presidential elections. I think about the inauguration earlier this week, the pageantry around it, and we don’t have the same sort of muscles all when it comes to legislative government, but that’s where actually you could see deals and compromises happen, and needing to happen in a diverse society, such as ours and the way that Congress can do that versus how an executive really can’t. Certainly a judicial branch that really can’t weigh a lot of different competing voices and decisions, it’s got to come down on one side or the other. That also fires our politics and fires how people engage and negotiate with one another. One of the things, and we’ve been talking about this in a way throughout the interview, what kind of a conservative was Nisbet? As people who are listening to this interview would probably think Nisbet is a social conservative of some kind, but I don’t think that really describes his thought, what do you say?

Mark Mitchell (27:02):

Nisbet notes that Jefferson, for instance, could speak of liberty and of the individual, the freedom of the individual, but he was doing so within a social context, and it was deeply formed by tradition and associations and non-governmental structures so that it’s really one of emphasis and context. When those things are burned away, when the traditions of local traditions and affiliations and local associations are burned away, speaking only about, or primarily about the individual and individual liberty, it looks very different because of the absence of that deep context out of which someone like Jefferson speaks.

No, he’s hard to pigeonhole. He’s a conservative of sorts. I would say he’s very much a Burkian. He quotes Burke a lot and he quotes Tocqueville a lot. If that’s any indication, it kind of gives you a sense of where he’s coming from. He sometimes is called a communitarian, although with the 1990s, the communitarian movement, that really doesn’t, because they tended to be much more favorable to and in-bed with the national government. He’s a decentralist I think in important respects, he’s a localist in important ways. He wants to champion the little platoons that Burke speaks of and thinks that those little platoons, human scale associations, are the lifeblood of a healthy and free society. And in so far as he’s critical of big government, he’s also critical of big industry, big business. He’s sort of skeptical of concentrations of power. I think that made some people on the left gravitate towards him, the critique of giantism in industry and in business. So in that respect, he’s a bridge builder too, I think. There’s something that some on the left can find in Nisbet that is attractive and perhaps in that respect, he can help us to generate a conversation, maybe across some of these very hard lines that have been developed recently.

Richard Reinsch (28:30):

I came across an essay he wrote in 1993 called, “Still Questing,” and he talked a bit about the attraction he had found his writings were having amongst the left. I think some of them have contacted him, but he said he didn’t think it would go anywhere because ultimately being a progressive or being on the left of politics is about using the monopoly arm of government to achieve things, to force things. He didn’t think that would really bear fruit. Certainly, as we think about mass concentrations in business, many are concerned about things that are happening in Silicon Valley and the power of those companies. But of course, if you look at the solution of breaking them up, or it seems to involve also the government having a lot of power as well, over what they do. I think that sort of illustrates maybe the problem that Nisbet would have with a left wing response.

Mark Mitchell (29:23):

Yeah, it’s a vexing problem and it recalls something that Hilaire Belloc said in one of his books, The Restoration of Property, he recognizes and argues that big is the problem, whether it’s political bigness or economic bigness, but concentrations of economic power, he thought has to be broken up. And the only entity that’s capable of bringing that about is the state. He says something rather glibly, I think that, “Well, the state has gotten us into this problem and the state can help us get us out.” But that strikes me as a kind of worrisome expansion of state power for the sake of what might be good end.

Richard Reinsch (30:04):

Well, and certainly, I mean, people have noted. I think Josh Hawley had a bill on Silicon Valley to loosen their control over information, but inherently it would involve the government having a stronger hand over the information that those companies illicit or produce or manipulate and that introduces all sorts of problems. Kind of thinking here also, Nisbet’s book as I was reading it and it asks you the question, what type of conservative was he? One of the things that I noted in my read was he praises Edmund Burke. He praises Tocqueville. He refers to them as sort of the philosophical conservatives, I think, of the 19th century, all of whom are realizing that this sort of rationalist, individualist, emancipated approach to freedom and life don’t really stack up and introduce many more problems. It seems to me that’s, as I think about the type of conservative he is, I’m sort of putting him in with those guys who aren’t… We can call them conservative liberals, people who believe largely in something like rule of law, limited government, markets, but want a ring-fence, I think is the way I think about these guys, want a ring-fence, a lot of other institutions and make sure they aren’t impacted by constant progressive ideas.

Mark Mitchell (31:19):

I think that’s right. He’s a liberal in the way that some of the American founders were and he quotes in Quest for Community, he notes that Jefferson, for instance, could speak of liberty and of the individual, the freedom of the individual, but he was doing so within a social context, and it was deeply formed by tradition and associations and non-governmental structures so that it’s really one of emphasis and context. When those things are burned away, when the traditions of local traditions and affiliations and local associations are burned away, speaking only about, or primarily about the individual and individual liberty, it looks very different because of the absence of that deep context out of which someone like Jefferson speaks.

Richard Reinsch (32:13):

You’ve written extensively and thinking about problems in American life, as we approach our problems with Nisbetian eyes, what do you think are some markers or some ways that we should look at these things?

Mark Mitchell (32:25):

Trying to think about that just in light of all that’s been going on in the last year and I think the answer, if there is one, or at least the start of an answer is something that seems so modest and humble that some might just roll their eyes, but I think Nisbet would agree and that is, look around you and do everything you can to build the local communities of which you’re apart. Pay attention to your neighbors, to your neighborhood, to your church, to your parish, to your local schools, get to know your neighbor. We’ve become so focused on national politics and presidential politics and national or international problems that we’ve lost sight of where life and politics really begins. And that’s at the home. That’s next door. That’s with the things that I think Nisbet would agree with are the things that matter. The things that will ultimately sustain us are the things that are closest to us that often get overlooked in the frenzied rush to save the world.

Richard Reinsch (33:31):

I think that’s well said. Ben Sasse released a statement about the January 6th mob, and he had a line in there, he said, “We people yell at each other on Twitter, but do they even know their neighbors?” I thought that was well said. And I also thought the banning of, or the way Parler was kicked off of the Amazon web servers and then it was removed from the iTunes app store, so basically it goes from being the number one app to it doesn’t exist. And I thought to myself, there was so much hand wringing over this and other moves taken by Silicon Valley companies. I thought, “Well, so what, is it the only way we can communicate. Free speech has not been abolished. There are new ways and forms to communicate.” Then I thought about them like five minutes later that, “No, actually, maybe it is in a certain sense.” And it’s certainly the most powerful form of national political interaction is on these forms of communication. I’m not sure that I have a good answer for that, but what that also means though is, as kind of, as you were saying, we more and more see ourselves in these abstract forms instead of concrete forms.

Mark Mitchell (34:42):

That suggests a good place to start. Is limit or abandon social media and go out and meet your neighbor.

Richard Reinsch (34:50):

Yeah. Yeah. I like that. That’s so that’s how we’ll end, go out and meet your neighbor. Mark Mitchell, thank you so much for your time and discussing the life and work of Robert Nisbet. We appreciate it.

Mark Mitchell (35:01):

It’s been a pleasure speaking with you, Richard.

Prospects for Inflation Apr 15, 2021

Richard Reinsch (00:04):

Today we’re talking with David Goldman about prospects for inflation in the American economy. We’re glad to welcome David Goldman back to Liberty Law Talk. He’s a senior writer for Law & Liberty. He’s the president of Macrostrategy, and he writes the Spengler column for Asia Times Online. He’s the author of a number of books, including You Will Be Assimilated: China’s Plan to Sino-Form the World. David, glad to have you on the program today.

David Goldman (00:50):

Richard, it’s a great pleasure to be back. Thank you so much for inviting me.

Richard Reinsch (00:53):

We’re glad to have you on this topic, in particular. The smart people tell us that inflation fears have subsided. There are a group of economists who strangely call themselves modern monetary theorists, who argue that we can take on an unceasing amount of debt and spend it however we want on various social programs, environmental programs, and none of this will have untoward results or result in things like inflation. We’ve spent, rounding up, $5 trillion in pandemic stimulus recently, almost 3 trillion, 2.9 trillion in expenses. And I’m told the Biden administration wants to spend another $3 trillion on infrastructure and climate change policies. What do you make of all of this? And what would it mean for the value of the dollar, this incredible spending?

David Goldman (01:46):

Well, I think in the short-term perversely, the dollar is likely to go up, but then I think it’s going to go way, way down as a result. And ultimately this largess will threaten the dollars global standing as a reserve currency and America’s capacity to finance itself on the scale we have in the future. The numbers you cited are truly astonishing, by historical standards. We’re presently looking at a deficit, including this $1.9 trillion of stimulus just passed, at roughly a fifth of our gross domestic product. We haven’t done that in the past, except during war time. The last time we had a deficit that big was in fact in 1945 and the Federal Reserve is financing virtually all of that because there simply isn’t anyone else in the world with the wherewithal or the desire to own that many treasury securities.

David Goldman (02:47):

Just to give an example, after the 2009 crisis, we ran a big deficit, not nearly this big, foreigners financed about half of the Obama debts. Foreigners so far have financed zero of the net treasury issuance over the past year, which is ominous. So there’s really nobody in there, but the Federal Reserve and US financial institutions doing that. Now, does this turn into realized inflation? A great part of the problem we have is the measurement of inflation. Every American family has two really big ticket items on their budget. One is the house and the other is the car. Now, the price of houses in the United States has gone up 10% in the past year, more than 10%. So we’re back to the level of housing price inflation, if that’s the right word, that we had at the peak of the housing bubble in the mid 2000’s. We haven’t seen that kind of housing price increase since 2005, except briefly when we hadn’t recovered from the crash. And the price of used cars and trucks is up 10% over the past year.

So when you say we can tame inflation, how do you do that? You can take money away from people so they can’t spend money, that would tame inflation. You could send the police round to take money out of everybody’s bank account, hypothetically, that would tame inflation, but is that a solution which would help us or be politically acceptable? I don’t think so. I think the Federal Reserve has a tiger by the tail. They don’t fear it, let it go.

So, from the standpoint of affordability of life for an American family, the situation’s quite dire. But if you look at the consumer price index published by the American Bureau of Labor Statistics, it’s only up 1.7% year on year and fed chairman Jerome Powell has said, “Well, we think inflation of 2% is kind of a desirable thing.” That’s a whole other question. We’re well below that. So I’m not worried about inflation. Now, the way the Federal Reserve measures such things is, for example, they don’t look at the price of a house. That’s a capital investment. They look at the cost of rent. Now rents are actually moving very modestly, but in a situation where the federal government has an eviction moratorium and vast numbers of Americans can’t pay their rent, that number is completely meaningless. So, I submit that the 1.7% year on year at consumer price index number, doesn’t really reflect what American families have to pay. That the explosion of housing prices, and explosion of used car prices is a much better indication.

So inflation’s already hurting people badly. And if we keep pumping stimulus in, but we don’t have the productive capacity to meet the spending power, one of three things could happen. One is prices go up. So the amount of money spread over a smaller amount of goods becomes less valuable, the value of money goes down. The second thing is that people stop buying things because prices are going up, so the economy either slows or goes into recession. And the third thing is we import a lot more from China. And all those are happening, at the same time.

Richard Reinsch (05:59):

So you’re saying we already have inflation in asset prices.

David Goldman (06:04):

That’s correct. And they’re assets which every family has to accumulate. There are very few families in the United States that can do without a house and a car.

Richard Reinsch (06:14):

And that would include, when we say asset prices, we also mean equities in that as well.

David Goldman (06:18):

Yeah. So equity prices have gone up, there’s a nearly one for one correspondence between the so-called real interest rates, so the rates on medium term inflation index treasury bonds, and the price, say, of tech stocks. So there’s absolutely no question if looking at the numbers that the Federal Reserve monetary stimulus, which has included zero interest rates for deposits and negative yields, real yields your terms are your securities, no question that this has put a lot of error into the stock market.

Richard Reinsch (06:52):

So inflation is here. Because I guess that doesn’t seem to be widely discussed or widely known in, say, popular accounts or press accounts of what we’re dealing with. But what we do seem to hear a lot about is this notion that we have very low inflation and to the extent, as Chairman Powell has said, Secretary Janet Yellen, that if we see inflation start to creep up they can tame it relatively quickly with conventional tools. And you’re arguing, that’s not true.

David Goldman (07:23):

Well, inflation could be a demand side or a supply fund phenomenon. One of the things that’s most distressing about the state of the US economy is chronic underinvestment in capital equipment and infrastructure in the means of producing things. In real terms, orders for capital equipment are back where they were in the 1990s. So US manufacturers have done very little investment in the past 10 to 15 years. Our production capacity, our supply chains are now constrained. So we have a large number of press accounts and studies coming out saying that as all this demand pours into the economy, manufacturers simply don’t have the supply chain capacity, the production capacity to meet the demand. And many reasons for that, part of it’s blamed on the Texas weather. Part of it is blamed on a global semiconductor shortage, but I think all of the blame is we haven’t been investing in manufacturing capacity and in infrastructure, and that’s had some really perverse effects.

So when you say we can tame inflation, how do you do that? You can take money away from people so they can’t spend money, that would tame inflation. You could send the police round to take money out of everybody’s bank account, hypothetically, that would tame inflation, but is that a solution which would help us or be politically acceptable? I don’t think so. I think the Federal Reserve has a tiger by the tail. They don’t fear it, let it go.

Richard Reinsch (09:08):

About the Fed policy, and you’ve mentioned the Federal Reserve buying the debt. So you’re saying of the 5 trillion, roughly 5 trillion we’ve spent in pandemic stimulus, most of that has been issued by treasury and purchased by the Federal Reserve and other US banks. And I want to try to lead into a question on the policy of interest on excess reserves by the fed and what role that’s playing in all of this. How do you see that?

David Goldman (09:34):

I think the excess reserves issue is relatively minor. The management of excess reserves affects the extent to which commercial banks are able to buy treasury securities and make loans. Banks have been a significant contributor, net purchases are in the range of about $400 billion in the past year, which is roughly a tenth or so, of the total amount of financing required, but I don’t believe that’s a decisive issue. I think the critical issue is interest rates, the deficit, and the fact that the giant sucking sound here is all the capital in the United States going into financing the deficit.

Richard Reinsch (10:18):

I guess the reason why I asked that question is some say that the policy of interest on excess reserves allows the fed to both monetize the debt and curtail inflation because the money is then parked. And these banks fed reserve accounts does not immediately go out into the economy or competes with other rates.

David Goldman (10:38):

Yes. I mean, technically that’s true. If you look at M2 money supply, it now stands at about $20 trillion. And if memory serves me, roughly a quarter of all the money ever created at American history has been created in the past two and a half, three years. That’s a staggering rate of monetary expansion. But as the textbook says, it’s not the amount of money that determines the price, it’s the amount of money, times the velocity of money, how fast it turns over. And it’s true that the excess reserves policy keeps money parked and reduces the velocity of money. But that is a relatively minor thing because as the commercial bank, if you have customers who are willing to take on debt and they’re credit worthy, you want to make commercial and industrial loans for them. Whatever the excess reserves policy, that’s going to affect your incentive to do so in a relatively minor way.

David Goldman (11:42):

The main thing happening right now in the banking system is that people are not taking on debt, commercial and industrial loan growth is shrinking. In fact, the volume of commercial industrial loans has shrunk over the past 12 months of pandemic. Instead the banks are buying treasury securities and that’s because the kind of customers who typically are the big borrowers at the banks, the small and medium sized enterprises, have been flat on their back and aren’t taking on debt, or aren’t able to take on debt because they’re not credit worthy. Large corporations tend not to borrow from banks, they tend to borrow rather on the bonds. There’s been an enormous amount of corporate borrowing, but the medium-sized smaller companies who tend to use bank loans, don’t have access to the bond market, happen off the market. So I think it’s really the… Velocity of money issue is really a matter of the demand for bank loans and not the management of reserves.

Another way things could happen is that inflation really takes off. And that creates so many distortions that eventually the Federal Reserve is forced to raise interest rates, call a halt to this, and then we have a real bind because if we have US debt equal to our gross domestic product, and it’s increasing at 20% of GDP a year, for every percentage point that our debt increases, we pay another $250 billion in interest. Let’s say we go up three or 4%. Suddenly our interest builds us up by another trillion dollars and exactly at the point where we are forced to reduce borrowing, we also have to increase spending to pay the interest. In other words, we look like Italy during its economic crisis of several years ago. We look like a third world country, look like Turkey and at that point, we’re in a world of pain.

Richard Reinsch (12:40):

Thinking about the Federal Reserve’s policy. We have this piece we published by Alex Pollack a few weeks ago, inflation comes for the profligate, and he says the Federal Reserve has purchased including unamortized mortgage premiums, a sum of 2.3 trillion. Which is, Alex says, 2.6 times its total assets in 2007, I guess, meaning the Federal Reserve’s balance sheet. That’s got to be part of the earlier comments you made about entering into a new housing bubble.

David Goldman (13:13):

Absolutely. Well, when you push mortgage rates down to one and a half percent, then the number of people who can buy houses is enormous. People have long memories. Back in the 1970s, there was only one major asset class that showed positive real returns, and that was houses. Stocks lost money, bonds lost money, well gold made money. But for most people, the American middle class didn’t do all that badly in the seventies because if you bought a house, you had the positive real returns. Now that was in a situation where family formation was much higher, we were at the peak of the baby boom. People born in the late forties and early fifties were then just forming families and buying houses. So the inherent demand for houses was higher, but still, from the standpoint of the ordinary American family, if you have the ability… Housing prices are running at 10% a year, and you can take a mortgage at 20% down, then you’re making 50% a year on your down payment, in fact your invested capital. That’s a very good rate of return.

Richard Reinsch (14:27):

Yeah, as you would say, what can’t go on forever won’t go on forever. That seems to be true-

David Goldman (14:34):

The famous Herb Stein law.

Richard Reinsch (14:35):

Yeah. Just in thinking about all of this. So the Federal Reserve continuing to buy the securities, continuing to monetize the debt and grow its balance sheet. What’s the end game for that?

David Goldman (14:47):

Well, there are several possible end games, but all of them are ones that we don’t want to see. One is that, as real returns to US financial assets are effectively suppressed, the rest of the world effectively stops holding dollars. Now to give an idea of the size of that, I estimate the low interest loans, which we’re getting for the rest of the world, at around $25 trillion. That’s about eight to 9 trillion of foreign holdings of treasury securities and 16 trillion of dollar deposits in overseas banks, which are held as working capital for international trade or international capital flows. That’s what’s called seignorage or the premium that a country gets for effectively having reserve currency, it’s used for the difference between what the King got for minting coins, the difference in the value of the coins and the bullion they were minted off, but the term persists. And if the Federal Reserve keeps real returns negative forever, eventually people will stop using the dollar and then we will lose loans to the rest of the world, which now amount to more than a year’s gross domestic product, we can’t sustain that.

And modern monetary theorists say, well, look, the Federal Reserve can print money and the US government can borrow all it wants at effectively a negative real interest rate. The interest rate on five-year, carefree, inflation protected securities is -1.7 percentage or so. So, at a privilege, if I buy effective security for five years, for the privilege of letting the US government use my money, I’m losing 1.7% a year in real terms. Or I would expect to be, just based on expected inflation. And that’s a great deal for the US government, but it’s not a great deal for the creditors of the US government. So eventually we’d lose the dollars. And if you read publications close to the state council of the Chinese government, the Chinese Communist Party, I’ve read article after article saying the US, because it has a global reserve currency, can get away with it for a certain period of time but eventually that’s going to wipe out the dollar’s role as a reserve currency, and that’s the end of American power.

That’s one way things could happen. Another way things could happen is that inflation really takes off. And that creates so many distortions that eventually the Federal Reserve is forced to raise interest rates, call a halt to this, and then we have a real bind because if we have US debt equal to our gross domestic product, and it’s increasing at 20% of GDP a year, for every percentage point that our debt increases, we pay another $250 billion in interest. Let’s say we go up three or 4%. Suddenly our interest builds us up by another trillion dollars and exactly at the point where we are forced to reduce borrowing, we also have to increase spending to pay the interest. In other words, we look like Italy during its economic crisis of several years ago. We look like a third world country, look like Turkey and at that point, we’re in a world of pain.

David Goldman (18:33):

So those are the two principle outcomes. And I don’t think any of this will happen at a one-year horizon, but at a five-year horizon it’s very possible. And if you can imagine the United States will wipe something like a quarter of personal income over the past year is coming from government cheques of one kind or another, and you’re forced to cut that back. The hardship on Americans and the shock to American politics would be horrendous, very difficult for any of us to conceive.

Richard Reinsch (19:06):

So that inflation episode, the way you try to get control of it is dramatic cuts in spending and dramatic increases in taxes, with hardship all around.

David Goldman (19:16):

Yeah. Well, look at Italy. Look at Greece. Look at third world countries that have been through this. Or even so look at Britain during the Sterling crisis of the 1960s and 1970s. I was a graduate student in London in 1974 and 1975. And I remember the lights out in Piccadilly circus. This was a poor country in deep crisis.

Richard Reinsch (19:42):

Talk about that. How did that affect Great Britain, when that moment happened?

David Goldman (19:46):

Well, people were pretty miserable. Britain went from being a global power to being a second rate power, to being much less important. Margaret Thatcher fortunately came in and set things right, but the North of England has never really recovered. So the United States could end up being a second rate economic power, while China becomes a dominant power in the world as a result of this. I’m not against spending money from the federal government, Richard. If Biden had said, let’s spend 1.9 trillion on infrastructure, research development and STEM education, I wouldn’t be unhappy about that. But simply to put money into people’s pockets in the hopes that they spend more means, namely, that they buy more smartphones and computers from China, and China’s exports to the United States are soaring.

Richard Reinsch (20:38):

As I was doing research for this interview, I came across a number of articles where people would take on your argument that you’ve made and say, yeah, but people were saying this in 2009, people were saying this in 2008, that America would become like Greece or America would become like Italy and it didn’t materialize. And it didn’t materialize for a number of reasons, many of which we’ve discussed or touched on. And this global reserve currency thing is noted, this need to hold dollar denominated deposits, trade situation. And America is the best deal on the block sort of thing. We can do more. And what do you make of that? Here we are, 10 years later, we’ve dramatically increased the money supply, dramatically increased public spending. We seem to be in this late great society, 1960s mentality regarding government program thinking. And what of it? How do you respond to that?

David Goldman (21:34):

Well, I think from the standpoint of American families, the outcome wasn’t particularly desirable. We had, under the Obama administration, effectively eight lost years, where we never got back to the trajectory of growth that we have in the past, we had chronically low growth. The economy in 2016 was about 10% smaller than it would have been if we had had a normal economic recovery, if we’d caught up and compensated for the lost growth of the great financial crisis. So I think the dissatisfaction in large parts of the American population, which gave rise to Donald Trump’s populism, is a pretty good gauge of how unsatisfied most of us were with the outcome after the standpoint of investors in Facebook and Google and Microsoft, things were great. The other thing in terms of the dollar US international role is we really didn’t have any competition. The Europeans were in some ways in worse shape than we were, Europe went through a severe financial crisis in the early 2010’s, parts of it are still in very dodgy condition.

So although the international use of the Euro has grown at the expense of the dollar, the Euro simply isn’t likely to substitute for the dollar as a world reserve currency because Europe has its own weaknesses. The difference now is we’ve got shot. China has its own problems, but China is 15% of world exports and only 5% of world stock market capitalization. The Chinese are very cautious about opening their capital markets in such a way that would allow their currency, the RMB, to become a global reserve currency, at least for the present, but on the five or 10 year horizon the Chinese have ambitions to make the RMB a global reserve currency. And if China’s economy continues to grow faster than ours and the Chinese manage to realize their extremely ambitious national program for the fourth industrial revolution, and they manage to assert themselves as the leading technology power in artificial intelligence and the 5G telecommunications manufacturing and so forth.

Then at a five to 10 year horizon, we will have a challenge that can push us out of first place. And this is not a nice competition we’re involved in, this is Glengarry Glen Ross, first prize is a Cadillac, second prize is a set of steak knives. If you lose your ability to borrow in your own currency globally, that is reserve status, and you lose the dominant position in the world market for high tech. It’s not just Huawei that’s the dominant telecom producer, but if Chinese companies are the dominant AI providers in a number of fields, then the United States would go through a decline similar to what Britain went through in the 60’s and 70’s, it doesn’t mean we disappear as a country, but it means we have lower living standards. We have even more deeply fractured body of politics. We have less military power and generally we hate life.

Richard Reinsch (24:57):

Those are the stakes. Related question, is just thinking about China. What did China learn, do you think, from our financial systems near collapse in 2008 and the way we managed that crisis?

David Goldman (25:12):

Well, China was terrified by that, in 2008.

Richard Reinsch (25:15):

And I suppose the related question is how did they change their approach to us, also?

David Goldman (25:21):

Well, the most important thing that the 2008 crash did was to persuade the Chinese that they shouldn’t emulate the American model. We now say with 2020 hindsight that the Chinese would never change, they’d never reform, they’d never be like us, that letting them into the World Trade Organization was a terrible mistake, that believing in Chinese reform was a terrible idea. But in fact, before 2008, there was a substantial body of opinion in China who said look at this wonderful American model with its technological marvels and its incredible living standards. We should be a lot more alike. After 2008, the Chinese said, this thing was a scam. The Americans are running a bubble, they’re hollow inside. We’re going to do things our own way.

Now that’s a very long-term proposition because, from the Chinese standpoint, remember in 2007, something like 35% of China’s GDP went to exports. They were completely dependent on the American market and they very narrowly avoided a severe recession when we went into recession. Now the export dependency has fallen by roughly half. China’s exports to the world are 17% of GDP and much smaller amount is exported to US. And they’re determined to be less dependent on exports over time and build up the domestic market because they don’t see the United States as a viable prop for their growth. So to the extent that the 2008 crisis put us flat on our back, it persuaded the Chinese to challenge us, to become more aggressive and pursue a policy quite different from ours, not to reform and to challenge us eventually.

Richard Reinsch (27:21):

I think I know your answer to this, but I think a lot of our listeners would gain from hearing it. Modern monetary theorists would point to, and this surprises me, but countries like Japan that have taken on a lot of debt, I mean much more than we have. I think Japan has 240% of GDP, more than twice the American ratio, but why couldn’t we be just like Japan and just continue to take on debt and support a lot of social spending that a lot of Americans apparently now want.

David Goldman (27:50):

If you’re a net lender to the rest of the world, as Japan is, Japan has a net foreign asset position of about plus $4 trillion, if I’m correct. Several trillion dollars. The United States by contrast has a net foreign asset position of negative $13 trillion. If you can fund your deficit with domestic savings, then effectively, what you’ve got is the Japanese owing money to each other and they can keep doing that as long as they feel like. It certainly hasn’t been optimal for Japan, Japan has had very low growth, but part of the very low growth is a rapidly aging population and a declining workforce. Part of the reason for so much saving in Japan is because people approaching retirement save a great deal more.

So, for a whole bunch of reasons, Japan doesn’t look like us at all. My point, Richard, is that if you’re running a current account deficit of 60, $80 billion a month, and you have a net foreign asset position at negative 13 trillion, then your ability to finance a deficit of 20% of GDP becomes very dodgy and particularly, and it’s not just the net foreign asset position. If you look at, as I’ve said, the total holdings of dollars globally, and how much credit the global reserve position of the dollar allocates the US, we’re talking 25 to $30 trillion, by my estimate. And if that starts to erode, if foreigners say, “Well, we just don’t need the dollar anymore. Why should we hold these balances? Why should we hold those treasury securities at a negative yield?” And at that point, we’re in a world of pain.

Richard Reinsch (29:38):

When you say America has a net international investment position of negative 13 trillion, what does that mean exactly?

David Goldman (29:47):

It means we’ve imported net $13 trillion of capital more than we’ve exported. We either owe foreigners or have foreign investments in our stock market of $13 trillion. Our monetary system, our economy has been dependent on capital flows coming in, and that roughly corresponds to our trade deficit over the past 40 years. If we keep importing more than we export, we’ve got to give people our paper, our IOU’s for that difference. We sell them assets, we sell them bonds, stocks or whatever. That’s how you get a negative net foreign asset position.

Richard Reinsch (30:27):

And right now we’re balancing that with being the world reserve currency or buffering that somewhat?

David Goldman (30:33):

That’s correct. I mean, it’s also true that this capitalization to the US stock market has helped, that’s a fact that some of our tech companies have been so successful has attracted a lot of foreign capital. So what worries me is not simply the monetary situation, it’s that if the Chinese become the dominant players in artificial intelligence and the next generation of great tech companies with mega market capitalization, the next Googles and Microsofts and Apples and so forth are Chinese companies instead of American companies, then we could be in double trouble.

Richard Reinsch (31:11):

And you and I talked a lot about that in our previous podcast, when we discussed your book, You Will Be Assimilated, on China’s policies there. And I assume you still hold most of those views that China’s tech prowess is going to outpace us soon.

David Goldman (31:26):

That’s a view which has been widely expressed by people who know a great deal about it. There was a report about three weeks ago by an entity called the National Security Council on Artificial Intelligence, a report shared by Eric Schmidt, former chairman of Google and Robert Work, who was deputy secretary of defense in the Obama administration. Now Work is extremely bright. And that report said that there is a very significant danger that China will dominate the trademark industry, trademark technology, which is artificial intelligence with of course, applications to many industries. And they propose some very dramatic measures to avoid that.

Now China is spending $600 billion a year in US dollars on technology subsidies, support, R and D and so forth. The United States is spending a fraction of that and that $600 billion, by the way, in China buys a great deal more skilled manpower than it does in the United States because qualified engineer salary is about a third of that in the United States. So the Chinese are outspending us massively on the cutting edge technologies which very well may define the economy of the 21st century. And we’re in danger of falling behind, the Biden administration has said some reasonable things about the need to catch up, but they haven’t done anything or proposed anything serious so far.

Richard Reinsch (33:01):

You and I have been talking and I know you’ve had a lifetime in capital markets and finance and economics. And we’ve been talking a lot about those concepts and consequences of abusing certain notions in finance and capital markets and fiscal policy. But to what extent also, and I suppose it’s not either, or, it’s related, is America’s position, and a relatively declining position it seems, do also it’s not that we don’t understand these things. It’s we lack the virtue, the seriousness, the desire to discipline our appetites and have a medium and long-term perspective on what’s best for this country. And that includes also our leadership class. How do you see that?

David Goldman (33:43):

A Chinese acquaintance told me you’re having your cultural revolution now with your struggle sessions and your policy of sending people to go out and work with peasants. What’s happening at our universities where engineering departments are run by diversity deans is quite concerning, but apropos of your point, it’s not simply the work lacks, I think that the national sense of virtue is, to put it mildly, challenged. By way of contrast, in China, 10 million high school kids take the university entrance exam, the gaokao, every year and admission to universities, which is a sure determination of a future career, is entirely determined by your exam score. Your grades, your club membership and so forth, your sports don’t count at all. So only that single grade, people have studied for years, the average Chinese family spends a year’s income on tutoring. The average. 50% of the kids to take the gaokao in China will fail. Won’t get a university position. They’ll go to a trade school to get some technical education, but they won’t get to university.

David Goldman (35:01):

The Chinese set the bar so that half of the contenders will fail and the Chinese people are willing to accept 50, 50 odds. And the fact that the Chinese have such a ruthless, and in many ways heartless meritocracy, which demands so much effort and so much competitiveness from their kids, gives them an advantage. That’s the kind of thing you used to hear in top law schools, where the Dean would tell the incoming class, look to your left, look to your right. One of you isn’t going to be there in three years. That kind of competitiveness and willingness to work is something we’ve lost. Chinese schools, they’ve got to make kids do calisthenics because otherwise they study all the time and waste away.

Richard Reinsch (35:50):

I think that’s a fitting way for us to end as we think about what America has to do to get its house in order. Part of that is just the recovery of discipline and the willingness and the desire to succeed. Thank you so much, David Goldman, we’ve been talking about the prospects for inflation.

David Goldman (36:06):

Thank you Richard, it’s been a pleasure talking.

How the Framers Made the Presidency Mar 31, 2021

Richard Reinsch (00:18):

I’m glad to welcome to the program today Michael McConnell to discuss his new book just out from Princeton University Press, The President Who Would Not Be King: Executive Power Under the Constitution. Michael McConnell is one of our most profound constitutional thinkers. He’s the Richard and Frances Mallery Professor of Law, and the Director of the Constitutional Law Center at Stanford University Law School. He’s also a Senior Fellow at the Hoover Institution. He was formerly on the 10th Circuit Court of Appeals from 2002 to 2009. He has appeared before the Supreme Court 15 times. He also has another book coming out very soon from Cambridge Press, Establishment of Religion: Neutrality, Accommodation, and Separation. Michael McConnell, we’re glad to have you on the program today.

Michael McConnell (01:12):

It’s a real pleasure. Thanks for having me.

Richard Reinsch (01:14):

Michael, I thought I’d start maybe with a more popular question, and it’s a question on a lot of people’s minds. I think it’s a bipartisan question, depending on who’s in the White House. The view out there is, in large measure, presidential power in the United States is increasingly exercised not under the Constitution, but on top of the Constitution or in an extra-legal fashion. Do you think that is the case in the course of your studies? So has the Presidency in America increasingly become extra-constitutional or unconstitutional? Or do you find it to be a much more nuanced approach?

Michael McConnell (01:54):

I think the answer to that is sort of or almost.

Richard Reinsch (01:59):

Almost under the Constitution?

Michael McConnell (02:00):

Yeah.

Richard Reinsch (02:00):

Okay.

Michael McConnell (02:01):

That it’s become extra-constitutional, but a lot of that is because Congress has invited it. So it’s very difficult to say that many of these things are unconstitutional when Congress has passed vast delegations of power to the executive branch in sloppy language, and then, of course, the presidents have run with it. Take just a current example, which is folks urging President Biden to cancel student debt. Well, what has Congress done here? Congress has given the executive power to negotiate and compromise individual claims. Now, this is just like any other debtor thing. If you’re dealing with Best Buy or whomever, and you owe them money and you’re not going to be able to pay, they’ll negotiate that down. That’s what that’s exactly for. But Biden’s advisors are telling him, “Well, you can just compromise them all, and you can compromise them down to zero. You can thereby eliminate all of the student debt that is owed to the United States.” Now, I think that is just an outrageous misunderstanding of the statute. Right? But the problem with it is that the state itself is ambiguous. So when Biden’s advisors say … Biden himself is resisting this, according to the newspapers. But what his advisors are saying is, “Take advantage of every little ambiguity to do this.” It’s very similar to what Donald Trump did with the building the wall on the border with Mexico when Congress refused to appropriate money for it. Instead, he takes a highly dubious interpretation of the Emergency Powers Act and just runs with it.

Richard Reinsch (03:52):

And there’s also this issue of how do you fund things. With the wall and the Trump administration, there was debate over was it constitutional, was it lawful for him to move money around? I guess the view of the administration was, “Statutorily, we have that authority.”

Michael McConnell (04:05):

Yes. But again, the typical problem today is not that the executive branch does things that are absolutely out of its wheelhouse, but rather that they stretch ambiguous statutory authority and use it in ways that Congress never intended.

This is, I think, the first comprehensive account of how the presidency was put together by the delegates of the Philadelphia Convention in 1787. I think the last real attempt to do this was in the 1920s. I think it’s a fascinating story. It’s a story that isn’t often told. It’s a story that makes current politics look not so good, either Republican or Democratic.

Richard Reinsch (04:24):

And then Congress seems unwilling or unlikely or too partisan, depending on who’s in the White House, to stand up for its own institutional power.

Michael McConnell (04:34):

Yeah, Congress is basically no longer interested in institutional questions. They are only interested in partisan questions. And given that the Congress is pretty divided, Senate’s 50/50, democrats are just barely in control of that. The democrats in Congress are not going to rein President Biden in, just as the republicans when they controlled both houses of Congress under Trump were unwilling to rein Trump in. There was a time not that long ago when Congress cared about its institutional prerogatives, and they would join together on a bipartisan basis to object when presidents did things that they believed cut into a congressional authority. And there is no authority that is intended by our Constitution to be so exclusively congressional as the power over the purse. There are actually two provisions of the Constitution that protects Congress’s exclusive power here. We’ve now had three presidents in a row that rather blatantly have been spending large sums of money on pet projects that Congress disapproved of, and have gotten away with it. Actually, Obama didn’t quite get away with it, because the court stepped in when he spent $7 billion on healthcare subsidies to insurance companies that Congress had refused to appropriate. The court actually stepped in and said that that was illegal.

Richard Reinsch (06:08):

That was interesting, too. Because Congress, if I remember correctly, deferred to the court in that case, and they wanted to bring in the court rather than press their own power.

Michael McConnell (06:16):

That’s right. In a way, it’s a confession of weakness when they have to go to court.

Richard Reinsch (06:20):

Yeah.

Michael McConnell (06:21):

But most of the book, as you know, is not about current events. I use the events to illustrate some of the principles, but most of the book actually takes place back in the end of the 18th century.

Richard Reinsch (06:35):

Turning to the book and helping us to shed light on a lot of these controversies, talk about what you’re doing in The President Who Would Not Be King and what your research revealed to you.

Michael McConnell (06:45):

This is, I think, the first comprehensive account of how the presidency was put together by the delegates of the Philadelphia Convention in 1787. I think the last real attempt to do this was in the 1920s. I think it’s a fascinating story. It’s a story that isn’t often told. It’s a story that makes current politics look not so good, either Republican or Democratic. So the very first part of the book is how it happened at the convention, but then with reference to each of the powers that they debate and allocate had a history. So we look back at the history, mostly in British constitutional practice, but it’s sometimes in a colonial or early state practice, or under the Articles of Confederation before the Constitution, and then looking forward, ahead to the first controversies over many of these powers, mostly during the Washington administration, but occasionally up through Adams and Jefferson. The idea here is that the convention was very careful about allocating powers that are of an executive nature. Now, when I say of an executive nature, their sort of rule of thumb for this is they looked at the powers of the king. And they understood those to be, most of them, prerogative powers, which means powers that are actually vested in the king as king, as opposed to through parliamentary delegation. William Blackstone in his commentaries on the laws of England, the book known to our framers intimately, he lists, depending on how you count, perhaps 41 different important powers of the king. Our framers allocated all but one of those either explicitly or implicitly, giving many of them to Congress, giving some of them to the president, which in most cases they actually trim the scope of the power when they’re giving to the president, and then in some cases denying that power to the Federal Government all together. A conspicuous example of that being the kings power over the Church of England. Well, we don’t have an established church in America. So they allocated these powers very carefully. Their basic strategy was to give many of them to Congress, and then to carefully limit the scope of the powers that they give to the president.

Richard Reinsch (09:32):

As the framers go into the Philadelphia Convention, substantively, what’s on their minds regarding executive power? What’s going to guide them in thinking about this allocational division of power?

Michael McConnell (09:44):

Actually, we can tell in what I think is the most dramatic moment at the convention, which is the very third day of substantive debate. The Virginia Plan was sort of their first draft of a constitution prepared by the Virginia delegation, mostly written we think by James Madison. It had an executive power section in which all of the executive powers that had been vested in the Congress under the Articles of Confederation will now be moved to the chief magistrate. They hadn’t yet decided that the name would be president, though I’ll call it president because it really doesn’t matter. But those powers were extensive, so they included, among other things, the power to take the nation into war, and then to get it out of war. These are called the powers of war and peace. And under the British system, the king could do this unilaterally. He did not have to go to Parliament. So they see this, and the very first person to comment is a 20-something from South Carolina named Charles Pinckney. You can almost hear him gasp in the records. I mean, it’s not. He says, “Why? This will make the president a king because the powers are so extensive.” And then they scramble. And in those first few days, they create an executive power which is extraordinarily weak. They basically strip the office of all powers except the power to carry into a effect laws passed by Congress, plus some powers of appointment, plus the power to veto a legislation. That would be a mere shadow.

That would be basically parliamentary government with a little executive branch attached largely for law enforcement purposes, and then they don’t touch that again until late July. The convention begins in May and ends in September. Late July, there’s this committee rather amusingly named the Committee of Detail. I say it’s amusing because this committee did not confine itself to detail. They rewrote major portions of the Constitution. The truth is that more important constitutional decisions about the structure of government were made behind the closed doors of the Committee of Detail than were made on the floor of the Constitutional Convention. And that committee, which was made up of five people, completely rewrote the executive branch. We don’t have any records of what they said, but we have several drafts of their internal drafts as they worked through it. I think it is pretty clear. I mean, this was an inference on my part, but I’m quite convinced that what they were doing was they were using a mental list of executive powers, royal powers from Blackstone, and then parceling them out. For example, 13 of the 29 explicit powers of Congress had actually been royal powers in Blackstone under the British system. So important powers like powers of war and peace. Remember, that’s what set off Charles Pinckney on the first day. The power to make war is given exclusively to Congress, and then they divide the power to make peace, giving the president the power to negotiate the treaty, but the Senate, by two-thirds vote, the power to decide whether to put it into effect. So actually what’s left is a very powerful presidency compared to the shadow that they had created in response to the original idea. A very powerful presidency, but seriously limited compared to the king.

I think that a lot of times the way originalists talk as if on every constitutional question, all we need to do is find out, what was the original public meaning at the time. And there’s an assumption that there was one and that we can find it out. But in history, you can’t wring any more out of history than is there, right? I think we originalists need to be modest about identifying, what do we know and what do we not know?

Richard Reinsch (13:36):

You make a point that the Committee on Detail also, with regard to congressional power, moved from what seemed to be a general grant of power to Congress in the convention to a more detailed, to what we now called the enumerated powers of Congress. I thought that was interesting. The thing about this allocation of power, you also make the point we frequently think about that in terms of federalism, powers not held by Congress or powers held by states. You make the point, and you’ve been talking about this, this is also about what’s between Congress and the president, and things are taken from the presidency. So in a way, the baseline of power is executive power, and that’s what’s they’re carving and giving out to Congress. But there’s this assumption of executive power that’s there, that’s in reserve maybe, and it’s just being whittled down. So in that regard, what do they think should be left?

Michael McConnell (14:32):

The decision to enumerate the powers of Congress is a really interesting one, because the chair of Committee of Detail actually made a motion to enumerate. The day before the committee was set up, he makes this motion. It’s voted down in favor of simply a very broad description of power given to Congress, and basically to be able to enact laws that are genuinely national in character as to which individual states are incompetent. That would essentially give Congress very nearly a total legislative authority. And that’s what the delegates voted for, but John Rutledge had the made. His motion lost. He then becomes chair of the Committee of Detail. And what does he do, along with the other four members? They disregard the vote, and they enumerate the powers of Congress. It’s a lot of what they spent their time doing, and that accomplishes two things. Everyone has always understood that that’s where federalism come from, because the national government is given certain powers and everything else is left to the states. That’s the substance of our federalism system. But in addition to that, and I think this has not been appreciated very much in the past. The other thing that it was by giving a number of royal executive powers to Congress, this is the way that the committee dealt with the boundary line between the authority of the executive branch and the authority of the legislative branch. It’s primarily, not exclusively, but primarily done in Article I by defining what powers Congress has rather than an Article II, which is a kind of slightly disorganized description of presidential power.

Richard Reinsch (16:24):

In the book you proceed, I think, in your research and your writing as an originalist. You talk about original public meaning and original intention, originalism. What did you take though from your study here? The Committee on Detail does so much work seemingly, I won’t say under the table, but on their own without a lot of public or historical discussion. You talked about the drafts we have of their work. You also mentioned the state ratifying conventions don’t really seem to take up executive power the most, which was interesting to me. I’m recalling James Madison’s statement, that a crucial way to understand the terms of the Constitution is by looking to the state ratifying conventions. So do you find these to be holes in the record for originalist research and writing, or do you think the silences and the inferences you can draw are compelling here?

Michael McConnell (17:15):

That’s a great question. I think that a lot of times the way originalists talk, let’s say, at Supreme Court confirmation hearings and that sort of thing. They talk as if on every constitutional question, all we need to do is find out, what was the original public meaning at the time. And there’s an assumption that there was one and that we can find it out. But in history, you can’t wring any more out of history than is there, right? I think we originalists need to be modest about identifying, what do we know and what do we not know? I think that the obligation of a 21st century interpreter is to stick within the lines of what we do know about the original public meaning, right? But we shouldn’t expect to find all the answers to everything. What we’ll find is some kind of boundary, some sort of approach that often times we have to fill in the detail. It’s my personal view, and here I’m maybe not as strict an originalist as some people, I think what we do is we look not just … First of all, we do identify what is the range of possible meaning, and stick with that. But then we look at the course of historical development over time, and the 230-some-odd years since the adoption of the Constitution. That precedent, not just in court but also in the political branches, that precedent is also a major guide. What I think courts should not do is just make it up. What they need to do is they need to comply with the constraints. And then in the end, if the statute where they’re evaluating the constitutionality is not contrary to the text, not contrary to what we know about original meaning, not contrary to long-standing practice or precedent, what they should just say is, “That means it’s constitutional.” The judges may not like it. They might not vote for it. They may disapprove of it. But if it doesn’t contradict any of those sources of constitutional law, they should leave it in place and let the representatives of the people make their mistakes.

Richard Reinsch (19:35):

Well said. If we’re in the Philadelphia Convention, one could say, “All right. Well, if the Committee of Detail makes all of these changes and no one really seems to kick up a fuss or say, ‘No, that’s not what we agreed to. That’s not what we came out at.'” You could draw a number of conclusions from that. You raise the example, though, in the convention that perhaps this gentleman, Gouverneur Morris was influential in thinking about a philosophy of executive power that they could live with. You cite him in several instances saying things that sort of look like the president that we have or that we got out of, or that emerged in the Constitution. And this is something I came to your book thinking, having heard that they looked at the New York State Constitution, which had the strongest executive of the state constitutions, and that was one they tried to fashion. You dismissed that or say it’s not as important as people make it out to be. So I’ll just throw all that at you.

Michael McConnell (20:29):

The Committee of Detail comes back. And as you say, nobody makes a big fuss. I think there are two logical explanations for why not, and we should not overlook this. We do not have good records of what was said at the convention after about this period of time. There’s a very important book by Mary Sarah Bilder called Madison’s Hand, which is a close examination of the records that we have. And Madison begins the convention taking copious notes, but there’s a period of time roughly corresponding to when the Committee of Detail’s report comes back. There’s a period of time in which he ceases taking notes. So all we have is sources from elsewhere, including the journal which reports the motions and the votes on things, but doesn’t report the debate. So it’s not impossible that when the Committee of Detail came back with these audacious innovations, maybe people did raise a fuss and we just don’t know about it because the records weren’t kept. The other logical possibility is that they did such a good job, both with respect to the federalism dimension and the executive verus legislative dimension, that the other delegates were satisfied. The Committee of Detail was itself a very representative group. They may have been able to predict what the full convention was willing to accept. This was a committee with one member from the Deep South, one member from the upper South, one member from the middle states, and two members from New England. That’s a very representative group.

I think our Constitution actually has an only incompletely unitary executive. I do believe that ultimately the president has authority. I think he can fire officers. I think the idea of an independent regulatory agency is completely contrary to the original constitution. I think that that’s wrong. But I do think that the structure that the framers set up creates at least a little bit of friction, and it may be a good thing.

Richard Reinsch (22:18):

Including James Wilson, right?

Michael McConnell (22:20):

Including James Wilson, who was probably the very best lawyer at the convention and one of the best lawyers in the United States. But as you say, so it did come back. It isn’t as if the draft then is just completely accepted. They go through several weeks of debate. They go through it in the full convention. They go through the Committee of Detail draft provision by provision. There are numerous motions for amendments. Some of them are accepted, some of them are voted down. The basic structure survives, but it’s not 100%. And as you say, Gouverneur Morris in particular has a quite sophisticated and more modern-seeming conception of the executive branch, and makes several proposals which are subtly worked into the draft. What Morris seems to have understood that very few people of that day did was, you shouldn’t think about it as a single person like the king or the president. You have to understand the executive branch as an institution, which is going to have multiple offices, and that the power, although the president will have ultimate power over the executive branch, he’s not going to be making all the day-to-day decisions. And because there are going to be officers who are only somewhat under his control, power is going to be diffused within the executive branch, so there are going to intra-executive branch checks and balances.

The most conspicuous example of this is that the Senate has the power to give advice and consent to presidential appointees to the principal officers. That means the president does not have full discretion to run the executive branch just with the people whom he most trusts. We just saw this with President Biden yesterday with his nominee for the Office of Management and Budget being turned down. Every president, no matter how popular or republican or democrat, they’ve all had some of their cabinet choices rejected by the Senate. That means that the executive branch is being run by people who are not just the toadies or lackeys of the president. And then the president does have the power to fire them if he doesn’t like what they’re doing. Certainly, President Trump did more of that than most presidents do. But the president can’t actually force them to issue the regulation or do the enforcement that he wants. He can give them instructions, but then his only enforcement mechanism for those instructions is to fire the officer. And that creates a certain distance between what the president wants to have happen and what actually happens in the executive branch. Effective presidents think about this, know about this, and figure out ways to make the executive branch work for them. Ronald Reagan was a genius at doing this. Others are not so good. Donald Trump didn’t have a clue, and so he was constantly fighting with his own people and did not have control over the executive branch. The result of that was a much less effective president than he might have been.

Richard Reinsch (25:43):

Would you shed light on this term, the unitary theory of the executive? Is the plan that comes out of Philadelphia a unitary executive?

Michael McConnell (25:53):

Unitary executive means that the ultimate power is all in one person. Now, at the convention, the delegates considered and rejected the idea of having a multi-headed executive. For example, remember Ancient Rome had two consuls. The first republic in France first had a committee and a directory of five, and then three consuls and so forth. They voted that down. We’re going to have a single-headed presidency, but the idea of a unitary executive is that that’s not just in form. That’s in reality that ultimately all executive power is vested in the president of the United States. So when he’s elected, he basically controls all executive power. I used to believe more in that theory than I do now having done this study. I now describe the system as ultimately unitary, but not immediately unitary. That is, the president cannot just by snapping his fingers make the executive branch do exactly what he wants it to do. Sometimes there’s going to be resistance. Trump encountered huge resistance within the executive branch. Even the people he named to office very frequently stood up to him. I think that that’s a feature of our Constitution, not a bug.

So I think our Constitution actually has an only incompletely unitary executive. I do believe that ultimately the president has authority. I think he can fire officers. I think the idea of an independent regulatory agency is completely contrary to the original constitution. I think that that’s wrong. But I do think that the structure that the framers set up creates at least a little bit of friction, and it may be a good thing. Because when you have a president who does things that are ill thought through or maybe even illegal, and there have been many presidents over our history that have done that, the cabinet officer who is in charge of actually putting that into effect can say no, or at least say, “Well, maybe.” I mean, in some instances with Trump, I think what the officer would say is, “Yeah. Well, we’ll get around to that, Mr. President.” And then, just quietly let the idea, the bad idea drop. That’s not orthodox, what you learn in political science about the Constitution, but that’s the way I think it works, and I think that’s the way the framers set it up.

Richard Reinsch (28:36):

There’s also just the sheer size now of the executive branch. Maybe we can talk some in a moment about the administrative state, what people refer to as the administrative state. We’ve talked about this some already. As an originalist, part of your book is a textual study of Article II, itself. What’s the logic of this article? There seems to be three major provisions or powers: A Take Care Clause, the Vesting Clause, and the Commander in Chief Clause. All of which, the arrangement of Article II is very different from Article I.

Michael McConnell (29:12):

Yes. Actually, I think Article II is the most difficult to understand. If you just pick up the Constitution as a casual person, not knowing much about it and just read it, I think the powers of Congress are fairly clear. I think the powers of the courts are fairly clear. But I think you would be hard pressed to understand the powers of the president just from reading Article II. But I think once you see the logical way in which the Committee of Detail created the structure, then it makes a whole lot more sense. The way I see it is this, that there are three different types of power given to the president. One type is prerogative power. This is power that is vested in the president by virtue of his office and cannot be touched by Congress. Examples of this would be, say, the pardon power or the veto power. The president can exercise those powers however he wishes. They can be and often are in service of things many of us would disapprove of, but Congress can’t do anything about it. Commander in chief power is like that, although it’s seriously limited in certain ways. Appointments powers and treaty powers are like that, but with the Senate having effectively a veto power through its power to advise and consent. So that’s one kind of power, his prerogative power. It’s obvious that the framers were a little worried about prerogative power, so most of them are trimmed down from the extent of a king. Maybe we should talk about that in just a second.

But the second kind of power is delegated power. This is where I think powers that are really of an executive nature are given to Congress. Take for example the power to spend money. It takes an act of Congress first. So for all of the delegated powers, the president cannot do anything … At least this is the formal theory and as it should work. They can’t do anything without Congress first authorizing them to do that. So that includes spending money. That includes borrowing money. That includes taxing. It includes going to war. It includes imposing criminal penalties, prosecuting people criminally for things, and a number of other things as well. So the president does not have any inherent constitutional authority over those things. But when Congress exercises its authority, then the president in effect gets delegated the power. The fact that the laws are passed and that the president then carries them into effect, gives the president a great deal of enforcement power. So that’s the second category. And then the third category is what I call residual powers, and this comes through the Vesting Clause. Your listeners should be aware that a lot of people disagree with me on this point, so this is my view. But the residual powers through the Vesting Clause are ones that are of an executive nature, and the president can go out and do them without advance authority from Congress, but Congress has the power to come in after the fact and limit or abrogate those powers. So this is where the president has the power to be the first mover, but the power to be a unilateral, final decision maker.

Richard Reinsch (32:49):

On those residual powers, would that include the power to initiate hostilities?

Michael McConnell (32:54):

No. I think it’s quite clear that Congress, only Congress can start wars, but it does give the president power to respond to attacks, to take defensive measures. In this modern world of ours where communications are instantaneous and things happen all over the world, it has become increasingly difficult to tell the difference sometimes between defensive and offensive measures. That was essentially the line that they had in mind.

Richard Reinsch (33:27):

Crucial question now of powers delegated by Congress to the executive branch and delegated to the executive branch to actually make rules, implement rules, judge or adjudicate violations of those rules. With this originalist research you’ve done, did it shape or change any of your thinking about executive power in the administrative state now?

Michael McConnell (33:54):

Yes, in some ways. I think there are insufficient safeguards for congressional power. I think that the Constitution assumed that Congress would be vigilant about protecting its own authority. And that probably was true for most of our history, but it is no longer true. So I think that the president now can get away with things that he probably shouldn’t. An example. For most of the convention, up until I think three days I think it was before the end in the middle of September, Congress was going to appoint the treasurer. It was going to be the only domestic officer of the United States that was named by Congress rather than being named by the president with senatorial advice and consent. Now, the treasurer would have authority to decide about spending. So the treasurer would look at the appropriations bill and see whether a proposed expenditure fits with it or not, and that person would be answerable to Congress. Today, that isn’t true. We do have a Congressional Budget Office, but it doesn’t have the authority. It can declare presidential spending illegal, but it doesn’t have any real enforcement authority. I think maybe that was a good idea. If we really want Congress to be in control of appropriations, then Congress needs to have some more control over how appropriations are interpreted. Because what we’ve learned from the last three presidents is that they can play fast and loose, and when they can play fast and loose, they do play fast and loose.

I also think that the administrative state needs to have some sort of way for Congress to check regulations pursuant to delegated power. The Supreme Court held in a case called the INS, Immigration and Naturalization Service versus Chadha that the legislative veto is unconstitutional. The legislative veto was the idea that when the executive branch issues regulations, that Congress can veto those regulations without the president being able to veto the veto. I think Chadha is a correct interpretation of our Constitution, but I think it’s a weakness in our Constitution. If I were to propose one or two amendments, one of them would be to allow for a one-house legislative veto of regulations initiated by the executive branch. Because after all, these are powers that were delegated to Congress. There’s something wrong if the executive branch can issue regulations which might be a rather wild misconstruction, intentionally wild misconstruction of a congressional intent, and then keep them in place. All that’s required today to keep them in place is for one-third plus one of either the House or the Senate to side with the president, because that’s all that it takes to sustain a veto, and the president gets away with it. I think that is not the way delegated power was expected to work out.

Richard Reinsch (37:13):

So when you think about the allocation of power between the Congress and the president, say a view that Philip Hamburger would take, lawmaking powers are delegated to Congress and that’s it. As a textual matter, they can’t then do another delegation to the executive branch. You wouldn’t take that position.

Michael McConnell (37:30):

No, actually I think that’s wrong. I mean, my good friend Philip, he’s a great historian. I think his position is only true with respect to regulations that affect the life, liberty, and property of individuals within the country. A motion was made by James Madison very early in the convention, on about the fifth day of debate in the convention when they were trying to figure out what to do about Charles Pinckney’s reaction to the original executive power plank. Madison proposes that Congress be given most of this power, but be permitted to delegate it back to the executive. His motion read, and I’m quoting from it from memory, “That power that is not legislative or judicial in its character.” So you have to figure out, what did they mean by that? I think the absolute core of the legislative and judicial powers were the power to pass laws that affect people’s life, liberty, and property, and to issue final adjudication. Now, a lot of today’s executive power does exactly that, and I think that is unconstitutional. But a lot of it doesn’t. There are many. The most important powers of the president involve administering governmental properties, spending money, exercising foreign affairs powers. Doing all kinds of things that do not actually affect individual people’s personal liberty and property. Madison’s motion would have explicitly allowed that. So what happened to the motion? It was voted down, but the leading speech against it simply said it’s unnecessary. That will be implied. But that’s implied, not in the terms that are already there. So if that was unnecessary rather than objectionable, unnecessary, then I think it’s fair to say that reflected the delegates understanding of the way delegated power would work.

We shouldn’t think of all delegations of power as being in the same boat. Some are of an inherently legislative or judicial nature, and that should not be allowed. But a lot of the delegated power is simply re-delegating to the executive powers that were considered to be executive under the British constitution, and that there’s nothing wrong with the president being given delegated power over that. Again, nothing wrong in the sense that Congress can do it if it wishes. But everything, it’s Congress that gets to decide. As a policy matter, I should say, I think Congress should be more parsimonious and careful in its delegation. But in terms of constitutional authority, I think they can do that. I mean, an example of this is over immigration. Remember Trump’s so-called Muslim ban. That statute allows the president of the United States to restrict any group of people from entering the United States that he thinks would be contrary to the public interest, which is why Trump was able to issue such a sweeping order. He doesn’t have to answer to anybody for that. And in spite of that particular order being so controversial, it was eventually upheld by the US Supreme Court. Congress used a shovel to give the president power rather than a teaspoon.

Richard Reinsch (41:11):

Sounds like we need a master framework or set of legislation along the lines of Madison’s order to help us think better about delegation.

Michael McConnell (41:21):

I think so, because a lot of the modern delegation is based on just really on … To call it a lie is too extreme. The Supreme Court has said over and over that simply delegation of legislative power is unconstitutional, and yet they never actually strike it down. It’s such a bizarre area of constitutional law because the Supreme Court says one thing, and then just does exactly the opposite. It would be so much better if we went to, say, Madison’s proposal, or there presumably are alternatives as well that are more careful in setting forth what the metes and bounds of delegated power can be, and then stick to them rather than saying that delegations are sort of unconstitutional in principle and then never doing anything about them.

Richard Reinsch (42:19):

Michael, I think that’s a perfect place to end. We’ve been talking with Michael McConnell, author of the new book, The President Who Would Not Be King: Executive Power Under the Constitution. Thank you so much for joining us today.

Michael McConnell (42:30):

Thank you, Richard.

Richard Reinsch (42:32):

This is Richard Reinsch. You have been listening to another episode of Liberty Law Talk, available at lawliberty.org.

Why Patriotism Matters Mar 15, 2021

Richard Reinsch (00:18):

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Steven Smith about his new book, Reclaiming Patriotism in an Age of Extremes. Steven Smith is the Alfred Cowles Professor of Political Science at Yale University. He’s the author of numerous books on Leo Strauss, Spinoza, Hegel, and he previously appeared on Liberty Law Talk a few years ago to discuss his book, Modernity and Its Discontents, which has been released in paperback. So Steven Smith, it’s great to have you on again.

Steven Smith (00:53):

Thank you, Richard. It’s a pleasure to be back.

Richard Reinsch (00:57):

Steven, thinking about the book, Reclaiming Patriotism in an Age of Extremes, why do we need patriotism?

Steven Smith (01:06):

Well, that’s a good question to start with, why do we need patriotism? Because obviously, not everybody thinks we do. The book began, or grew out of, an attempt to distinguish patriotism from people… Or to reclaim patriotism, I should say, as the title is, to reclaim it from people who don’t like it and therefore who think we don’t need it at all and from people who… What to say? Like it too much. And patriotism, I want to argue, is a disposition which I think is inseparable from politics so long as we are what Aristotle called political animals. So long as we live in polities and political end states. We need patriotism, it’s inseparable from a sense of loyalty and identity to the place where we belong.

Nationalists see the country as the only source of their identity. And then this is very easy for it to become coupled with feelings of anger, resentment, and most dangerously the attempt to identify enemies beginning often with the foreign enemies, but then always becoming domestic enemies, domestic others who are seen to present some kind of existential challenge to the national identity.

But patriotism, we can go into this, is an easily misunderstood virtue. As I suggested a second ago, from one side, it is identified often with all that’s wrong or even what is responsible for all that’s wrong in our politics today. And from the other side, it seems to express everything and it’s only what’s good in our life, in our political life. So it’s a difficult virtue. It is a difficult virtue and it’s a contested virtue. We can talk about that if you like.

Richard Reinsch (02:36):

Well, thinking about the title of your book, an Age of Extremes, let’s just bracket for a minute. I think you and I both agree patriotism is a good thing, it’s a needed thing. It’s, I think, a consolation in a difficult life in a difficult world. But what are the extremes right now that are currently operating that are leading us astray from properly understanding it?

Steven Smith (02:57):

Patriotism has always been contested. Go back to the ancient world. One example I use in my book is Sophocles’ Antigone which puts forward a conflict between loyalty to his family and loyalty to country. Patriotism has always been contested by other loyalties we have and that will never go away. We are beings with conflicting loyalties, and so long as we remain beings with conflicting loyalties patriotism will be challenged by other loyalties we have. The two dominant challenges to patriotism today come from, I’ve already suggested it to left and right to pretty much map onto that distinction.

I’ll start with the left, what we might call the cosmopolitan left, the kind of view that you find particularly in educated circles, among business elites, among educated people, among a range of people who believe that we have become, or are becoming, citizens of the world. Our allegiances are to a kind of global humanity and we owe no particular allegiance to the individual states of which we are members. We see that in the enthusiasm, particularly among young people, and it’s just the admirable in many ways, I’m not discounting, but they’re admirable goals to work for international NGOs, to become part of Doctors Without Borders, to think of global concerns like the environment and other things. Again, absolutely real, but the tendency is to downplay or to minimize the role of their identity as citizens, as citizens of a country rather than global citizens of the world.

The other extreme is nationalism and that of course has, in the last five or six years or more, even maybe more, become a very potent force throughout the world. In the US too, including the US. We’ve seen nationalism arising in China, in Turkey, in Russia, certainly in places like Brazil, and many other places. Nationalism is a very potent course of political identity, but different from patriotism, I want to argue. They are often linked, but one of the things I try to do in my book is to decouple them. They grow out of a common root. Nationalism and patriotism are not opposite as it’s sometimes said. They are not opposite. They grow out of a common root. That root is to have your way of life and your culture and so on to be strong and respected, natural and within limits, understandable and admirable quality. But patriotism and nationalism are growing out of a common root but move in different directions.

Nationalists see the country as the only source of their identity. And then this is very easy for it to become coupled with feelings of anger, resentment, and most dangerously the attempt to identify enemies beginning often with the foreign enemies, but then always becoming domestic enemies, domestic others who are seen to present some kind of existential challenge to the national identity. And it is this kind of friend enemy logic that I think invariably grows out of the nationalist mindset, the nationalist imagination, that is quite different from the patriotic disposition that I try to defend in my book. But those are the two, I think, challenges that kind of frame the debate as I see it.

Richard Reinsch (06:58):

Do you see, as I read your book, it seems to me also nationalism arising from perceived excesses of, let’s say, humanitarianism, or sort of downplaying what I think would be legitimate interest of the nation. And I think about Brexit. When the Brexit campaign was happening, I saw good arguments on either side for that position. And I ultimately thought, “Well, if the people come out and vote at like 70% and they vote 52%, then I would respect that vote.” But I also said that this belief that the European Union was just ever increasing and some of their statesmen actively downplay I think what I would call a legitimate interest of the nation. And so you get nationalism arising from that, but that in turn feeds it’s opposite.

Steven Smith (08:04):

Well, let me say, I discuss, I’m certainly not an expert on the EU, but it comes out for some discussion in my book. And I do think the debate about Brexit and I listened to it and followed it. There were powerful arguments on both sides. But I do think the EU is seeing what is or was… The EU is now becoming terribly fractured. But it was seen by many, sort of in the heyday of its ascendancy, as sort of a model of this kind of notion of trans national or trans political citizenship or sovereignty or something. A seamless world of open borders, of common currency, of free trade. It had many dimensions, many of them quite valuable and useful but it created aspirations and dreams and ideals that cannot be satisfied. And this movement was always combined, as you pointed out, with a heavy handed bureaucratic apparatus that really ended up, in many ways, overriding people’s national institutions, their loyalties.

They were told they are members of Europe. What is that? And so there was always this tension between, in many ways, the aspiration and, again, the bureaucratic apparatus in which those aspirations were enfolded. So the EU is one example of how exactly this kind of tendency towards cosmopolitanism and to believe that we are now outgrowing the nation state as the basis of our political identity and show how this can go wrong. Let me just say before I sound like I’m simply in the camp of the EU skeptics or the anti EU, I am not.

And why do I say that? Because the EU, for everything that is questionable about it, they’ve done one very important thing that I don’t think we can entirely forget, and that is it has managed and still managed to maintain the peace in a continent that was the most violent continent of the last century, certainly the last century, and perhaps even the most violent continent in all of recorded history. The world wars, the Holocaust, the ethnic cleansings that European States imposed on one another were just terrible blemishes on humanity. And the EU has rose to respond to that and to some degree it’s very admirably pacified many of these aggressive European tendencies. So that is nothing to sneeze at. And so I just want to mention that. It’s something that I think deserves to be said about the EU, whatever its other failings.

Richard Reinsch (11:11):

Yeah, that’s well said. Although it does seem to me now and the history of, you recounted it well and all of its wars, it does seem to me… when I think about Europe in many ways, it’s sort of a lethargic continent now. I was reading recently by 2007 the economy of the European Union was largely on par with America’s, but what’s happened in the last 14 years is it’s barely grown and the American economy has grown and we’ve sort of moved beyond them in a lot of ways. And a lot of people thought the EU economy would overtake us. And then of course now our big concern is China and what it’s doing. And I could produce a lot of examples, demographics. Where Europe just seems, although it was this tremendous dynamo, to me, it just seems sort of like a large vacation park at this point.

Steven Smith (12:11):

I agree. I don’t want to sit here and opine about the future of Europe-

Richard Reinsch (12:16):

No …

Steven Smith (12:16):

… I don’t know, but two devastating world wars within a 50 year span can do a lot to take the life out of a people.

Richard Reinsch (12:26):

Yeah, that’s true.

Steven Smith (12:27):

I don’t know. I hear what you’re saying and what you say is probably right in some respects.

Richard Reinsch (12:32):

You have an interesting epigraph here and I thought it might be a way to get into a question that I’ve got for you, which is you said patriotism is a virtue. And I think that’s at the center of the controversy. You have the epigraph, “I am an American, Chicago born. From Saul Bellow’s The Adventures of Augie March.” Can you elaborate more on that for us?

Steven Smith (12:53):

Yeah, that’s great. Thank you for mentioning that. I’m glad you caught that because that epigraph means a lot to me. Why? First, I’ve been a more or less lifelong admirer, lover, of Saul Bellow’s literature. That famous opening sentence, “I’m an American, Chicago born,” first sentence, opening sentence, of The Adventures of Augie March captured something to me, not just of the spirit of that novel, but of me. I also am an American, Chicago born, and I lived away from Chicago for many, many years. More than half my life has been spent in New Haven where I live now. But this identification with a place I think is very important. It shaped me to a considerable… For good or bad. I don’t necessarily simply have a kind of rosy nostalgic image of the place where I grew up. I don’t at all, really. But we are shaped by our past, by our histories, our family histories, our national history and I thought that statement, that sentence, captured something pretty important about that. It did to me, at least.

Richard Reinsch (14:12):

It reminded me of the opening of Ulysses Grant’s memoirs. He says, “My people are American.” That’s always resonated with me. When I read that sentence I always thought, “That’s something new, I would think, in American life at that time,” that you think of this as an American civilization and your people being shaped by it.

Steven Smith (14:30):

Yes, and Augie March is a very American story. Of course, the difference between him and Grant is Grant traces his ancestors back to the Puritans, back to the real founders. Bellow’s Augie March is like Bellow himself, is the child of immigrants. I am the grandchild of immigrants. So there’s a kind of vibrancy about this too. And the title of the book, The Adventures, it shows that this is a kind of a picaresque novel, an adventure. It’s an adventure story in some ways. And I think that’s very much the American story.

I’ve been emphasizing and reemphasizing here this aspirational or creedal dimension of American patriotism. But in many ways that’s only one side of the coin. And I argue in different ways in the book that patriotism is, like all virtues in many ways, patriotism is a matter of both the head and the heart. It is both an intellectual virtue, based upon understanding of our founding documents and the principles for which we stand. But it’s also a matter of the heart and it’s also connected to loyalty.

And I hope I tried to capture in my understanding of patriotism that it’s an adventure. It has an aspirational quality to it. And that to me is very much one of the things that distinguishes patriotism from nationalism also is this sense of aspiration and adventure. It’s not just a land and soil ideology. It’s not just America first, it’s not simply, “My country right or wrong.” There is an ideal and an adventure and a creed to it that makes, I think, American patriotism unique.

Richard Reinsch (15:46):

Let’s talk more about that. In your book, you talk about the elements of American patriotism. Talk about that because as we think about patriotism, you said it’s a disposition, a virtue. So there has to be a common thread there. It can’t just be purely an adventure.

Steven Smith (16:03):

Sure. No, no, absolutely. There is a core, a broadly defined core, that for generations was called, very loosely, the American Creed. What is the American Creed? It was not anything formulated necessarily in a document or legal text of any kind, but it was a set of beliefs and ideas growing out of our founding documents that shape what it is to be an American. For example, let me just mention three, our commitment to equality, going back most famously to the equality clause in the Declaration of Independence, “All men are created equal.” We are all endowed with a certain basic dignity that is worthy of respect.

That egalitarian impulse is a very important aspect of American patriotism. What does equality mean? In part, it means there are no more aristocrats, no more monarchs and aristocrats. It is an open field. It’s an open field for all of us to rise or fall. It’s a field of rights that we have liberties and rights that are essential to that. And once again, these are aspirational that, as Lincoln points out, probably most famously in his speech on the Dred Scott case, that our aspirations to equality and dignity have not been fully achieved. They are constantly being labored for, being worked upon, being, in a sense, a work in progress. But this idea that we are creedal nation, a creedal people, and be a core of the idea of some of our best students of American politics. Let me just mention three of those students, Samuel Huntington, Seymour Martin Lipset, and Martin Diamond. All of them saw this sense of creedal peoplehood as central to America and that’s in part what my book is an attempt to reestablish.

Richard Reinsch (18:14):

Yeah, and as I read that, you think about what country has something like the House Committee on Un-American Activities? Obviously, there’s a creedal idea of America that could also be used in various ways. Thinking about that creedal concept, is that enough, I guess was my question for you? And I guess I say is that enough, because as I think about the human person, I think about our relationships with others, our communities, communities of moral worth and meaning that we find. It’s a long conversation, but I think that’s a huge problem now in America is I think a lot of people look around them and don’t see communities they want to join, or they feel abandoned in various ways. And then what about memories and battles, ways in which people attach themselves to the country? How does the creedal concept incorporate those things?

Steven Smith (19:09):

A great point, Richard, and it’s one that I work on in the book. I’ve been emphasizing and reemphasizing here this aspirational or creedal dimension of American patriotism. But in many ways that’s only one side of the coin. And I argue in different ways in the book that patriotism is, like all virtues in many ways, patriotism is a matter of both the head and the heart. It is both an intellectual virtue, based upon understanding of our founding documents and the principles for which we stand. But it’s also a matter of the heart and it’s also connected to loyalty.

I spent a lot of time in the book talking about what is loyalty and how is loyalty a virtue associating it, as you were calling out these ideas of membership and being a part of something, patriotism isn’t just or can’t be exhausted by our aspirations, although it’s that. But it’s also an appreciation very much rooted in ideas about appreciation, of gratitude. It’s a term that I used at times throughout the book, is a sense of gratitude. Being a patriot is, in many ways, I say like being a member of a family. And here I think that helps us also distinguish patriotism from nationalism. We have been shaped by our families. For better or worse, we’ve been shaped by our families, but we love our families. We usually do, some of us it’s another story. We usually love our families. It would be absurd to say, “My family is better than your family. My family first.” No, in many ways, we love our families because of their imperfections. That’s what makes our families, in some ways, but they have shaped us.

And I think patriotism is a virtue, it’s a loyalty virtue, like family membership that is rooted in loyalty and gratitude for shaping who we are. Yet at the other side of it, I call it the head and the heart. I think I used two fancy Greek terms in the book. I speak of logos and ethos, reason, logos, and ethos is character. And I do speak of patriotism, is a character shaping virtue. It is the virtue of character, it shapes who we are. I cite a famous Greek philosopher, Heraclitus, who says, “Our ethos, our character, is our destiny.” That may be a bit too strong, but I do think he captures the quality of what I call ethos patriotism which I think is the way I sort of interpret what you were trying to bring out. I think it is a very strong component in what I think of as the patriotic disposition.

Richard Reinsch (22:09):

You said loyalty. And I agree with you, we struggle with that, contemporaries, we struggle with that idea of being loyal to something. And you discuss in the book, I’ll say, two of our leading cosmopolitans, Martha Nussbaum and George Kateb, who both in various ways, and you could talk about it more, seem to argue patriotism is an affront to enlightenment principles of liberty. Why? Well, it’s because of this loyalty thing. It’s because of the dispositional thing, “I don’t get to choose. I don’t get to be a willing agent of my self development. I’m sort of with everyone else by virtue of where I’ve been born and all of that history and what all those people think and I don’t get to be me.” And what’s really me is to be transactional with a lot of other people across borders around the world, around civilizations, and to have sort of this menu of things I can choose from. That’s very attractive. And from what I’m reading, it’s very attractive to people in their twenties and thirties. They want to live their lives like this.

But, of course, Roger Scruton always would talk about this and the claim would be patriotism is subject to xenophobia, but there’s also an oikophobia here too I think we could discuss, or fear of home, hatred of home. And I thought maybe you might address those concerns. I don’t think you’re saying ethos and character is destiny. I think you’re also saying, particularly with regard to American patriotism, it’s contested and we argue about it. And even the elements you list of American patriotism, it’s an ongoing argument. We can lose balance. Say egalitarianism runs amuck. You say that’s an important American value, I agree, and it starts to win out and we lose a lot of other things. So I just wanted to throw all that in.

Steven Smith (23:59):

You probably said it, at least as well, better than I would. I’m glad you mentioned the article. I got an email the other night from George Kateb congratulating me for the book and also expressing disappointment that I don’t see things his way. I said, “George, what the hell. The argument is better than the agreement.” So anyway, George is a great man. I unhesitatingly say that, I do, even though we passionately disagree on the nature of the subject. And he’s right, there is much in the American experience that he draws on, going back to Emerson, going back to sort of the American transcendentalism, that was the first movement to really to give voice to this kind of free wheeling individualism that we have. In many ways, once again, it’s an admirable quality of Americans, our individualism, our sort of sense that nobody can tell me what to do, or that we want to figure things out for ourselves, we shouldn’t be constrained simply to live in the way that our parents lived if we don’t want to.

This is, in many ways, a crucial part of America and one that I think is invaluable. I very much appreciate that claim yet, I would say, and I think we were getting into this a little while ago, that is only part of the story. In many ways, this kind of expressive individualism that Thoreau and others have, they presented it as a heroic disposition, the ability to break free custom and tradition, to live as you like, these are cliches today. But there was originally something heroic in the model of how to live in a certain way. It’s not to say that most of us aren’t heroes in that way, but it is say that many of us in fact find meaning in the way we’ve been brought up, in the traditions we’ve inherited, in the customs and habits that have formed and shaped us.

Most people don’t feel a need to challenge and to resist the courses of history, tradition, and family and customs. So we have to find a way to hold those two together. If you want to bring this up to the moment, in some ways, I think what we’re witnessing today in much of our culture, in politics, is the outgrowth of a kind of angry libertarianism that says basically, “Nobody has the right to tell me what to do.” That is not a good formula for society. It may work in some occasions and in some contexts for individuals, but as members of a society it’s not a useful, to put it mildly, it’s not a useful formula. And I think a lot of this, I would say, angry libertarianism we see expressed in the response to COVID, that’s it’s a conspiracy, “Nobody can tell me that I should put on a mask,” or something. We live in a society and that requires that we make certain sacrifices. It seems to be pretty minimal to me, but for many people it’s an affront to their liberty. And I think that’s one of the dangerous sides of the kind of what they call abstract individualism that is very much a part of the American character.

Richard Reinsch (27:53):

Thinking here, angry libertarianism. There’s also this notion too of to make patriotism work it requires enough of us who disagree with one another. To put things like law and the nation and, I’ll say, the Constitution or being constitutional people that that is above everything else. That’s above who’s going to win an election because what we know is probably the next election, the other side is going to lose or the following election and so we’re able to live with those results. We’re able to live with say some laws being passed that we don’t like because we know there’s probably going to be a reversal. And that’s how I have looked at a lot of things, and this is a very dour look, even that sort of formal consensus breaks down. And I think that’s really at the essence of patriotism or, I’ll say, a humane loyalty to your country that there are things we just don’t question because we acknowledge that it’s so good. It’s not that we’re ignorant, or silly, or are not educated well. We just know these are good things and so that must be unquestionable. And that itself is now in dispute. So I see a lot of the COVID stuff happening like this basic distrust, not that the government at times doesn’t earn it, but this sort of a basic distrust out there you see and I think that fuels a lot of this stuff.

Steven Smith (29:21):

I couldn’t agree more with the way you just framed the issue. I think it is a matter of patriotism that it requires trust. It requires stability. There are a series of kind of qualities that it embraces. It also requires a sense of our own fallibility, an awareness that we may be wrong or at least what we believe is maybe only partially true. These are qualities that are essential to a decent society and have been eroded with the talk about the sources for the erosion of social trust, and this kind of ethos, as I call it, the glue in a certain way for what binds people together and what makes patriotism possible. And a lot of sociologists, political scientists, have talked about this in kind of more empirical ways in recent years.

I think probably most famously, remember Robert Putnam’s book, Bowling Alone, the decline of associations in America kind of resulting in atomization. That was written back in the nineties or maybe the early 2000s where we hadn’t really seen the full consequences of the breakdown of what happens with that atomization.

I totally believe in the Treaty of Westphalia solution. We live in a world of states and states are defined by borders and they have the right to determine who’s in and who’s out. Of course, you can determine that broadly or narrowly. But I very much believe that, that is the basis of our stability.

And I think what happens with it is not just people no longer join with others, it leads to a breakdown of trust among people, among neighbors, among citizens. And that breakdown of trust leads us to see others as enemies, in some ways. They are not just others to us, they are enemies. And this is, more and more, I fear the world we are living in. And the question in the book, if I knew how to restore this I guess I would win the Nobel Prize or something, but it is trying to find both institutions, but also not just institutions, habits of hearts and minds that will restore the conditions for a decent patriotism.

Richard Reinsch (31:19):

I agree wholeheartedly there. I just think too, in the past year, we’ve had these sorts of jarring experiences, obviously, with COVID being one. And it seems to be our political class, every conflict we get and they manage to find the most intense way to come at it, and so things can’t be negotiated or compromised and that sort of drives things. So I look around my neighborhood, which no one has any reason really to be that upset about much. I see neighborhood signs with, “I believe in Peter Fauci.” I see signs about Ruth Bader Ginsburg. These are suburbanites in Indianapolis, you’re this plugged into politics? This just sort of being someone who is interested in politics, is most people for most of my life have not really cared and think that I’m kind of weird for caring so much. And now this is upfront in everyone’s mind, not in a good way.

I do think in terms of patriotism, something that most nations struggle with, particularly in the West is the harder question of borders and immigration. And that’s obviously very contested and has been for much of American history. How does the American patriot think about immigration?

Steven Smith (32:33):

Yeah, that’s something I talk about in the book and, like most people, I don’t have an answer to it. There’s not a simple answer to it. Just state the obvious. We are a nation of immigrants, not to say the history of immigration has been a happy one. We have not always welcomed the immigrant. “Give us your poor, your tired, your huddled masses yearning to breathe free,” this was not always the way immigrants were treated, going back to the early part of the Republic. But we are a nation of immigrants.

And the question is, how does a society like ours both balance diversity, ethnic, racial diversity, immigrants, new immigrants, new people to the table with a sense that we are still one people in a way, “E Pluribus Unum,” out of many, one? That balance between to kind of put it in high falutin philosopher’s terms, how to combine the one and the many, how to do that? If we say our borders are endlessly open, everybody’s welcome in all at once, we lose our ethos. We lose any sense of who we are as a people. But if we begin to say, “We’re filled up, no more,” or very few, then we are in danger of losing our humanity. And I would only say, there’s not an algorithm for determining it, it’s just a willingness to people, our leadership class, to compromise on these issues. Immigrants can be a source of new blood-

Richard Reinsch (34:24):

Yeah, new businesses.

Steven Smith (34:26):

New ways. And at the same time we live in a world with borders, I very much believe that. I totally believe in the Treaty of Westphalia solution. We live in a world of states and states are defined by borders and they have the right to determine who’s in and who’s out. Of course, you can determine that broadly or narrowly. But I very much believe that, that is the basis of our stability. And again, I would say, you ask maybe the hardest question facing American public policy or legislation today on this question of immigration. It’s so powerful and it’s so potent on all sides. It requires statesmanship. It requires state craft, statesmanship, compromise, and willingness to stop demonizing each other.

Richard Reinsch (35:20):

No, I think that’s well said. Another hard question, maybe less controversial… Well, equally controversial, but not in the public eye as much. And this is something that I think Nussbaum and your friend George Kateb would point to are conflicts between our loyalties and how do those get settled? And does patriotism not offer a fulfilling settlement? Speaking of our country, our family, for many of us, our religious faith, and our conscience. And those do come into conflict. And so how does the patriot think about these conflicts?

Steven Smith (35:56):

Wonderful question. I have a section of the book going back to our earlier theme of our discussion when I talked about conflict of loyalties. When in fact patriotism comes in conflict, love of country, with other duties or loyalties that we inhabit, my favorite example, I used a few, but I’ll just mention my favorite, is the one that Lincoln encountered.

I should say for those who haven’t read the book, Lincoln figures prominently in it. In the midst of the Civil War, Lincoln was visited in the White House by a lady named Mrs. Eliza Gurney, a Quaker. She came as the head of kind of a Quaker delegation. And Lincoln very much appreciated the visit. Not because she was coming to hector him about something, but they wanted to pray with him. And the Quakers were in a difficult dilemma because they were antislavery. They favored emancipation and anti-slavery and yet at the same time, we know they are anti war. And Lincoln appreciated that dilemma. How, if they fall on one side of the equation, they cannot support the war effort. If they fall on the other side of the equation, they seem to be in violation of their religious beliefs. It’s a painful moral conflict.

And Lincoln sent her a beautiful letter stating to the effect, stating that dilemma very beautifully and saying something to the effect that, “I have and will do all I can as commander in chief to honor both sides of that.” But he admitted, more or less, that even Lincoln couldn’t figure out which of the sides was right and what to do. That was going to be left obviously to each person, each member of the Quaker faith, to have to work out for themselves. So that was a very powerful example, a real world example, of that kind of very, very serious conflict of duties between patriotism and, in this case, religious fidelity. There are others too. I consider some examples from literature, some from film. There’s a wonderful scene in The Godfather, one of my favorite films, that it deals with exactly this question. In that particular instance, it’s a conflict between family loyalty and loyalty to country. Things are real.

And that’s why I say patriotism is a contested virtue. I also deal with the question of patriotism and protest. There are issues, not only when we have a conflict of obligations as it were, the kind that I was just talking about, but then there’s questions is it ever patriotic to protest? We hear this almost as a cliche. It is a cliche, “Protest is patriotic.” Well, my answer is yes and no. Like so many things in politics, it depends on the context. So I try to sort that out a little bit as well. But my point being in general, patriotism does not automatically just trump every other loyalty and obligation that we have. It is, as I say, contested. And it’s probably a good thing too. It remains and always will remain a contested virtue.

Richard Reinsch (39:33):

But at the same time, one we can’t do without. Steven Smith, thank you so much for your time. We’ve been talking with the author of Reclaiming Patriotism in an Age of Extremes.

Boomer Nation Mar 01, 2021

Richard Reinsch (00:04):

Today we’re talking with Helen Andrews about her new book Boomers: The Men and Women Who Promised Freedom and Delivered Disaster. Helen Andrews is senior editor of The American Conservative, before that managing editor of the Washington Examiner, she was a Robert Novak Journalism Fellow and her writing has appeared in numerous journals, including The New York Times and First Things, among others. She’s also written for Law & Liberty in the past. So we’re glad to have her on the program to talk about Boomers, Boomer nation.

Helen Andrews (00:53):

That’s us! We are the boomer nation.

Richard Reinsch (00:55):

So Helen, what got you interested in writing about the Boomers? I mean, there’s been obviously a lot said about them. What did you want to add?

Helen Andrews (01:03):

Well, I’m a millennial to start by laying all of my cards on the table. And the millennials and the boomers are natural enemies, in many cases because the boomers are our parents. And as I looked around the world, when I graduated from college in 2008, into the teeth of a massive financial crisis, I started thinking that the world that my generation had inherited was not the one that we were supposed to, that something had gone wrong, somewhere. And so I wanted to trace back, where mistakes had been made, in the economy, in politics, in religion, in the family. And every time I tugged on a thread, I found that it led me back to the generation that came of age in the 1960s, and started running the world in the 1990s. And that was the baby boomers.

Richard Reinsch (02:00):

Something that I’ve always thought about with the baby boomers. And I think about it in terms of my own family, one of my grandfathers grew up on a farm during the Great Depression, in northern Indiana. He talked a bit about that with me difficult times, then very early in his life goes off to fight in a world war in the Navy, and then comes back. And GI Bill goes to college, becomes an engineer, and raises a family. And when I juxtapose his early life with the life he was able to create for his children. And this is I think, throughout the baby boomer generation. And so he would be a part of what’s called the silent generation. So we have a boomer generation that grows up, obviously, underneath the specter of nuclear war. But they grow up compared to previous American generations and conditions of unparalleled prosperity, and peace, and good education systems, largely very much intact families. And what do you think goes wrong there?

Helen Andrews (03:13):

The long and short of it is that the boomers, as you say, came of age, at a time of unparalleled prosperity. I don’t think America has ever been wealthier in the fullest sense than it was in the 1950s and 60s. And it was also a time of great social cohesion. All the things that make American society great, we’re still functioning at full capacity then, our churches were exceptionally strong in the 1960s, our civil society, and informal volunteerism, all of that good stuff, was hitting record highs in the 1950s. And all of this together gave the baby boomers a sense that that was just the natural order of things, that the natural state of the world is for everybody to be rich, and for society to work well. And for there to be high levels of trust among the people who live together. And they behaved on that assumption over the next six decades. And the result was that they thought they could act out and destroy institutions and that society would continue to function in the wonderful, healthy way that it had when they were young kids.

Helen Andrews (04:31):

And of course, that’s no longer the case. Prosperity, as we have discovered is not the natural order of things, and that if you destroy institutions like the churches, then the result will be what you see today in the Protestant mainline, which has churches their moribund, is not on their literal deathbed. So that was what happened to the boomers. They came of age at the time when everything was great. And they assumed it would always be that way, no matter how badly they acted.

Richard Reinsch (05:00):

Question, in your research for this book did you ever take up the question, something that I’ve been interested in. What’s the interaction between, say, the silent generation and these children that they’re raising? And it seems to me at some level, there was just a failure to inculcate time-honored habits and the American past, at some level, did you think about that?

Helen Andrews (05:26):

I did. But the thing that first made me start questioning that narrative, that it’s actually the silent generation fault. And the greatest generation fault is reading about the phenomenon of the 1960s in other countries because, of course, the baby boom 1960 that was a global phenomenon. And the people in Germany and France, who asked themselves, why is it that all of our students are rioting in the streets and throwing cobblestones at cops in 1968? The answer they came up with was, well, they hate their parents because their parents bequeath them a world of war. Their parents were the generation of fascism and collaboration. And that’s why these young Frenchmen don’t trust anybody over 30. I thought, well, that’s almost the opposite of the situation you had in the United States. Here, the narrative is that the generation that were the boomers’ parents were the good guys, and they made things too nice for their kids. And that’s why they hated them. And you can’t have two opposite explanations for an identical phenomenon. So eventually, I ended up concluding that the generational boomer phenomenon, the 1960s, that rebellion, was a product just of simple demographics, when you have a very large generation, as the boomers were, when they become of age, they start to throw their weight around because there are just so many of them and that makes their desires just so important to the rest of society. So that was what was going on not in the actual… The substance of generational debate did not have a lot to do with it.

Richard Reinsch (07:00):

You profile six boomers in your book and you in many ways mirror very successful book Eminent Victorians by Lytton Strachey, which was a very successful book at the time for dispelling a vaunted legacy of the Victorians in the English mind. I take it you wouldn’t mind taking that place here in America with regard to the boomers, you profile Steve Jobs, Aaron Sorkin, Jeffrey Sachs, Camille Paglia, and Al Sharpton. I’m wondering, why not Bill Clinton? Isn’t he the quintessential boomer?

Helen Andrews (07:35):

He was absolutely on my shortlist. And the reason why I ended up passing his name off, even though he is as you say, the quintessential boomer, I agree with you 100% is that I wasn’t sure there was a lot left to say about Bill Clinton that hasn’t already been said. And also, I got a chance to say most of what I wanted to say about Bill Clinton in the chapter on Aaron Sorkin. Because if people out there don’t know, if you watch an episode of The West Wing, there’s a 75% chance that at least one of the plotlines in that episode is ripped from the headlines, as they say in Law and Order from something that actually happens in the Bill Clinton White House. If you know anything about the Clinton years, you will see familiar news stories and anecdotes pop up in The West Wing all the time. So that was where I got my chance to say what I have to say about Bill Clinton.

Richard Reinsch (08:32):

And then in that regard to Hillary Clinton. I know there is so much that has been said about them. It’s the handprint. The boomer generation is so large, and their print on all aspects of American society continues today. And it to me he just exemplifies that and what he was able to achieve and also dissolve.

Helen Andrews (08:56):

And also Clinton was a man who squandered what were great gifts, not just the power that he was granted that he then abused, but the gifts that God gave them. He had many virtues, and he did not turn them to as good use as he should have. And that’s the boomer story in a nutshell.

Richard Reinsch (09:14):

Okay. You profile first, Steve Jobs, he seems to be the one you’re the most sympathetic to.

Helen Andrews (09:22):

People have told me that I get gradually less sympathetic as the book goes on. That may be true.

One of the most fascinating subjects to me of California and business in Silicon Valley, is how the hippie side and the aggressive capitalist side are two sides of the same coin, that they are more alike than people tend to anticipate.

Richard Reinsch (09:28):

Yes, with Jobs, you profile him. Why?

Helen Andrews (09:33):

Because you really can’t tell the story of the last sixty years in the United States without talking about technology. And nobody shaped our view of technology more than Steve Jobs. He’s also somebody who exemplifies California more than just about anybody. If you bought Apple products in this century, you’ll probably remember turning over on the back of your iPod or whatever and seeing made in China, but designed in not in America, designed in California. So Apple was very much a California company. And if you think about the boomers’ effect on the world, pretty adequate way to summarize, it would be making us all look a little bit more like California. And that’s what Steve Jobs represents to me.

Richard Reinsch (10:20):

Jobs in the Apple company and creating the smartphone, which has, I mean, in my mind, transformed so many things and in conjunction with social media, in terms of how we interact with information and interact with one another. Jobs also you write about, there’s certain countercultural strains in Jobs, but also certain other strains as well, in terms of I didn’t know that he wasn’t going to allow pornography apps to be sold on Apple products, et cetera. And he said, “We’re going to do what’s right for our customers.” So there was this interesting, sane part of Jobs that you profiled.

Helen Andrews (10:58):

Absolutely. He was a quintessential boomer in some ways, but the anti-boomer in other ways, the stand against pornography in the Apple Store is one example. He hated politics. I mean, he would go to a meeting at the Obama White House if they invited him just because there’s always a hobnob with powerful people. But the strain that you see in Silicon Valley now where everybody’s very woke and political, he just had no time for that. And he insulted Bill Gates and his dabbling in philanthropy. For Steve Jobs, he was a true-believing capitalist. That was what he thought was his contribution to the world, which is, in many ways very unboomerish, as well.

Richard Reinsch (11:42):

There’s the side of Silicon Valley that it was this myth of the hippie in the garage, inventing new tech products that we would use, but it was about creativity, with some amount of bourgeois productivity and business acumen, but this was really the flowering of a new ethos and way of being in business. And do you think Jobs fulfilled that? Or is he a crossways, with that?

The reason why the boomers are failing to be a bulwark against crazy woke fanaticism is that they feel like these kids are just believing the same values that they do. You see it in Silicon Valley all the time, the people who run Google in the top management positions, the boomer generation people have the same values as sensibly as the millennials who are terrorizing them. It’s just that they thought we could pursue those values and still be nice to each other.

Helen Andrews (12:07):

One of the most fascinating subjects to me of California and business in Silicon Valley, is how the hippie side and the aggressive capitalist side are two sides of the same coin, that they are more alike than people tend to anticipate. I think my favorite thing that’s ever been written about Silicon Valley is Tom Wolfe’s essay that’s collected in his collection, Hooking Up about noise in the early founding fathers of Silicon Valley. And because he’s Tom Wolfe, one of the things he notices is the way everybody’s dressed. And he notices that California has a much more casual style and you can spot somebody from East Coast Wall Street when they come out to visit a Silicon Valley company in a second because they’re the only ones wearing a suit and tie. But when I talked to boomers, just to have my personal acquaintance about things that they thought had changed in the last 50 years, one of the things that a lot of them mentioned was workplace attire, that is a lot more casual now than it used to be. And that’s a great example of the Californication of the rest of America. It used to be, you only saw that kind of thing on the west coast. Now you see it everywhere showing up in jeans and sneakers to an office job. But one of the boomers that I talked to about this phenomenon made a chilling observation, he said that this casual workwear coincided exactly with longer hours, that it used to be even in my hardcore New York law office, that everybody kept basically nine-to-five or nine-to-six hours, everybody understood even your boss, that everybody ought to be home for dinner. And it was only as the go-go ’80s started going and especially into the ’90s that they started thinking it’s okay to ask your employees to start staying till 10 o’clock at night on a regular basis. And so supervisors said, “Well if I’m going to do that, I can’t ask them to be in an uncomfortable suit all that time.” So in that way, the rise of casual wear in the office went hand in hand, with employers demanding more and workers losing leverage in the workplace. It’s not about self-expression and dressing how you want no, it’s about them squeezing every drop of labor they can out of you. So I think that’s the kind of California workplace the Steve Jobs represented.

Richard Reinsch (14:26):

As you say that I think I’m recalling something I read about Marissa Mayer, who was the CEO of Yahoo, that started on the ground floor of Google, that she didn’t go home for 30 days or something like that, something ridiculous like that in the early days of Google. I guess one thing that comes to mind here is so the wokeplace phenomenon in some ways in which is such a part of Silicon Valley and it’s become at least what you and I do. It’s something we interact with every day, an unpleasant reality. And that’s post-boomers though, isn’t it? Isn’t that something that, did they prepare the way for that? Is that a part of this merging of workplace and values and virtues? Or does that come after them? And it sparks the question. Are we afraid of an America after the boomers? Do we fear what that might look like? One place is, the presidential race, we were actually afraid of the next generation of Democratic politicians. So we chose Joe Biden.

Helen Andrews (15:27):

I think that’s absolutely right. But we can’t let the boomers off the hook because the reason those Millennials are so terrifying, is because of the things that the boomers taught them. And the reason why the boomers are failing to be a bulwark against crazy woke fanaticism is that they feel like these kids are just believing the same values that they do. You see it in Silicon Valley all the time, the people who run Google in the top management positions, the boomer generation people have the same values as sensibly as the millennials who are terrorizing them. It’s just that they thought we could pursue those values and still be nice to each other. They weren’t fanatical about it. So the millennials know that they have the leverage in these battles. Because the boomers claim to believe in the very same thing. So yeah, the boomers are the last barrier between the coming insanity that is the world takeover of absolutely everything. But they were the ones who created the monster in the first place.

Richard Reinsch (16:37):

I want to skip, this being Law and Liberty. The last person you profile is Justice Sonia Sotomayor, talk about her for a minute. There was a lot of interesting facts about her in your reporting that I wasn’t aware of. But one of the things it calls to mind and is and there’s another person you profile before her, the Reverend Al Sharpton, that there’s this awareness, particularly for later stage baby boomers of how civil rights has turned into maybe not so much transformational, you talk about that, but a way in which one can really further one’s own projects.

Helen Andrews (17:17):

I think that’s an accurate description of Sonia Sotomayor and she learned it back in college. She writes in her own memoir about how… she went to Princeton on a full-ride scholarship. And rather than express gratitude for being able to attend an Ivy League University for no money, she decided to attack the university for cultural genocide for not having enough Puerto Rican professors.

Richard Reinsch (17:43):

She used that term cultural genocide?

Helen Andrews (17:46):

I don’t think she used the term cultural genocide, but she did say the obliteration, eradication of an entire culture it was something suitably hyperbolic.

Richard Reinsch (17:56):

Yes.

Helen Andrews (17:57):

But we shouldn’t hold it against her. She was an undergraduate at the time, and undergraduates are just naturally hysterical. The real fault lies with the Princeton administration, which responded to the blackmail letter that she sent them about not having enough Puerto Rican-born staff, by falling all over themselves, and saying, “Oh, of course, we’ll appoint a diversity manager right away.” And that was an early lesson for her, that if you just invoke the right narrative of victimhood, everyone will fall over themselves to comply with what you’re requesting. And that’s the way that the law is, that’s not just a product of culture, that’s a product of civil rights laws, and has come to be interpreted. And now that she’s the one doing the interpreting, she’s very happy to expand its reach so further.

Richard Reinsch (18:43):

Yeah, and that institutionally, obviously, that goes on today, throughout all universities, Princeton’s response to the latest round of protests we’ve been experiencing in this country is to accuse itself of systemic racism and to promise ways in which it’s going to counteract that including building more majors devoted to the studies of other cultures that aren’t affiliated with European civilization. Sotomayor, though, you talk about her pushing forward. There’s a conversation one time she has about affirmative action with a law partner of a major firm. And I thought it was a law partner quizzing her about does she think it’s fair for minorities to be in certain positions when they’ve likely obtain those positions through race and affirmative action? And she’s incensed about this. And I can understand how that would be an aggressive question to ask someone from a minority background.

Helen Andrews (19:46):

You’re right that that was an aggressive question on the part of the law partner. The setting this clarifies the anecdote for listeners is that she was a three L at Yale Law School about to graduate and go look for a job and it was at a job fair when all of the big firms in New York and across the country come to Yale Law to interview prospective hires. And it was at a dinner of about a dozen people where the partner was there and went around the table quizzing people. And he really got into it with her saying, “Do you think you’re only here because you’re Puerto Rican? Do you think it’s fair for our firm to hire people on affirmative action grounds when we know they’re going to wash out in a couple of years?” And she complained to Yale Law and said, “If you don’t do something about this, I will file a complaint, saying that that firm should not be allowed to send partners here to interview law students for jobs ever again.” And the firm submitted a letter of apology and was actually forced to submit two letters of apology because the first one was not apologetic enough. But the reason why I liked that anecdote is that there is an exact parallel one about Antonin Scalia. When Scalia got out of Harvard Law, he went to interview at a Midwestern big law firm, I think Jones Day and the partners there said, “Oh, you’re a Catholic? Well, then you must believe in blue laws saying that we got to close our shop on Sundays. Don’t you think that’s imposing religion? Aren’t you just a retrograde, Pope follower, or whatever?” And he really aggressively attacked his Catholicism. He was, of course at the time, the only Catholic at the table. But the reason law partners do that is to see how you respond under pressure. Because judges will sometimes get into it with you, and sometimes the judges will be wrong or irrational. So seeing how you respond to aggressive, angry, irrational questioning is something that prospective hirers might want to know if you’re applying for a job as a lawyer. And Scalia himself, even though a lot of the questions they asked him were unfair and racist, just gave as good as he got. He really got into it because he enjoys the feeling of debate. That’s what he lives for. And the fact that Sotomayor responded in such an opposite way. There’s a lot about their respective characters.

Richard Reinsch (21:57):

Just, as I was thinking about Sotomayor, one thing that came to mind, you probably came across this, PJ O’Rourke has this analysis of the baby boomer generation that is so large, and it takes into account so many different aspects of America, given that how rapidly America changed as they came into their own, that there’s this first tranche of baby boomers who are the most left-wing, and were the most committed to social change, were the ones leading protest later as an early adulthood, then you have this middle group, who moderates more, and they’re following. But they’re also the first ones to really go home and call it a day. And then you have this later group, which he puts Barack Obama in, who pretty much figure out which way the wind is blowing and adjust accordingly. So maybe they’re left-wing, maybe they’re moderate, maybe they’re something else, they’re corporate, or whatever. They’re willing to cut deals. And he says, “This is precisely how the boomers understood Barack Obama and the famous Reverend Wright episode where Obama was in his church, presumably, while this man was preaching and saying a lot of hateful things. And Obama’s response was, “Yeah, I didn’t take any of it seriously. And I was just there because I was in Chicago politics. And that’s what people did.” And the boomers instantly accepted that because many of them actually knew that to be the way they’ve handled things in their own lives. I’m curious what you think of that. But is Sotomayor seemed like, as I read your account of her one of the ways in which she found a way to succeed was precisely to rely on the things that she was being given to rely on to succeed?

Helen Andrews (23:39):

Yeah, I’m glad that you brought up the PJ O’Rourke book because, in some ways, the book that I wrote was a response to his. He even wrote a whole book about the baby boomers, which is very acute and very funny.

Richard Reinsch (23:50):

Yeah.

Helen Andrews (23:51):

But it ultimately a little bit too fond. And so when I read it, I thought he hadn’t really stuck tat knife in quite the way that I wanted to see the boomers be treated. So I wrote my entire book because I thought PJ O’Rourke was too nice.

Richard Reinsch (24:05):

Okay.

Helen Andrews (24:06):

But the framing that he uses is really useful. It’s what you say that there are divisions within the boomer generation. I think he compares them to seniors, juniors, sophomores, and freshmen at a high school. They’re all in the same cohort, but they’re different generations. And yeah, that might be a good way to think about Sotomayor. And one occasion, when Sotomayor the younger boomer came into conflict with somebody from just slightly, the generation ahead of her somebody born in their early 1940s was when she was confirmed and Laurence Tribe, the Harvard law professor, decided to attack her and almost along the lines that you’re saying, he said, “For me, left-wing law is a matter of intellect. I have the arguments. I’ve thought about this deeply. I know what I’m doing with bringing my liberalism to the law.” Sotomayor, Laurence Tribe famously said in a memo that he wrote to the Obama administration is, and this is a direct quote, quite simply not as smart as she thinks she is which is rather a rude thing for a Harvard professor to say about somebody who was about to be a Supreme Court justice. But it was really the argument that you’re presenting that for the younger boomers, it was just something they absorbed, they were not on the front lines of these protests, they did not arrive at their liberal opinions through deep thought or outrage response to social conditions. They just saw that it was the dominant belief system and adopted it because that’s what you do to get ahead. And Tribe was worried that in close cases, when the outcome depended on the liberal justices managing to win arguments with Anthony Kennedy, Sotomayor would not be impressive enough in those intellectual arguments to get Kennedy’s vote because her liberalism was not sufficiently intellectual. Now, I think the moral events or the outcomes of that story, proves something important about the baby boomers, which is that Laurence Tribe was wrong, the non-intellectual, more emotional, more therapeutic style of argumentation that Sotomayor prefers, has actually been really successful. She is everything he said she was. And yet she has won. And she has prevailed in arguments and won in cases. So I think maybe the intellectuals were not as powerful or as influential as they might wish they were. And it’s the people for whom liberalism is just an adopted belief system because it’s in the air supply are the ones who have the power.

Richard Reinsch (26:47):

You note the dissenting opinion, she writes in the Michigan case where voters in a popular referendum had eliminated racial preferences in that state, and a suit was filed that this in and of itself was racial discrimination. And Sotomayor wrote a blistering opinion of basically equating the voters in that state with Jim Crow voters. And there were some other things she said in that opinion as well that were just howlers and she was criticized directly by Chief Justice John Roberts. And also she was criticized by, it was Scalia, I think, but you said that actually referring to this, this may have changed Kennedy’s mind. You argue.

Helen Andrews (27:28):

Yeah. And Joan Biskupic, is a Supreme Court reporter has written biographies of I think, at least three sitting justices, maybe four. But she is a Supreme Court journalist. And she believes based on evidence, that Sotomayor blackmailing dissent was what changed Kennedy’s opinion. And if you look at Kennedy’s jurisprudence, from the moment he was confirmed, he has been a reliable vote against affirmative action. Justice Kennedy did not like racial preferences. So it was a genuine surprise that in this Michigan case that you’re talking about, he ended up on the Sotomayor side. The rumor mill attributed that really startling defections on Kennedy’s part to this blistering dissent, and really something that called out for explanation because it would require something extraordinary for Kennedy to come down in defense of racial preferences.

Richard Reinsch (28:24):

Helen, now, maybe switching gears here. You include, and I thought this is an interesting choice. You include Jeffrey Sachs, in your list. I’m curious why I don’t naturally think of him when I think of him and boomers. But you explore the arc of his career. And I thought that was interesting.

Helen Andrews (28:43):

He was one of the first people that I thought of when I was thinking of people who capture the essence of boomerness, maybe because he personifies the combination of idealism and hubris. Nobody can question Jeffrey Sachs’ idealism. He’s a professional do-gooder, but not a humanitarian in the philanthropic sense. He’s a an economist, which is also, in my mind, very representative of the baby boomers. Their consummate do-gooders are not people who run charities. They’re people who have PhDs in economics, this elevation of social science and expertise to the highest value, and that that’s who we should give true power to people with PhDs. That’s something that the boomers invented, that’s a boomer phenomenon. So you see, it’s right at the intersection of a lot of different boomer qualities, and also one of the three most famous economists living.

Richard Reinsch (29:46):

Yeah. Do you think his contributions and what he has done in the developing world you write about his first foray was in the country of Bolivia, one of the more impoverished countries in Latin America also heavily involved in transitioning communist countries, Russia, Poland into a more market-oriented settings? And then obviously his work goes on in Africa. What do you make of his overall contributions there?

Helen Andrews (30:12):

I think he’s done a lot of good. And this is probably a good moment to mention that I think a lot of the boomers that I’ve profiled, did a lot of good. None of these chapters are intended purely as takedowns. I want to give a full and objective assessment. And in the case of Jeffrey Sachs, I think a fair and objective assessment would have to say he did a lot of really good things. The downside of his career, a lot of people hate him for what he did in Russia. And there’s no question that the transition from communism to capitalism in Russia was devastating. The ’90s were just a horrible decade. And the reason why everybody loves Putin now is because he refers to the 1990s as this national trauma. And so it was, but the terrible things that happened in Russia, happened very frequently because the people in power did not listen to Jeffrey Sachs’ advice. He’s gotten so sick of people blaming him for the catastrophe of the ’90s in Russia that he wrote an entire essay titled, “What I did in Russia,” explaining that all the things that went wrong, were from people not listening to him. And I think most of what he says in that essay, “What I did in Russia,” is accurate. But the way that he approached development economics, was fundamentally deficient.

He was a big believer in not cheating, national particularities. Jeffrey Sachs would frequently say, “Every finance minister I’ve ever consulted with has said, “No, Mr. Sachs, you don’t understand my country is different.” And then the reasons they give me for why their country is different, or the same as the one I get from every other finance minister, I’m an economist. Don’t give me your nation’s history. Give me the numbers. And that is all I need to know.” And that’s a very Harvard and boomerish and social scientific way of approaching questions. I’m married to a Russian. And so I think I can say that the Russians are nationally distinctive people. If you go in and try to treat them like your average homo economicus, you will not come up with an adequate solution to their problems. And I think that that was what was missing from Jeffrey Sachs development economics when he went around the world trying to consult. Just an insufficient appreciation for the complexities and the human factor in this place.

Richard Reinsch (32:48):

You’ve written on empires, the British Empire, and its experiences in Africa. And I think I remember reading essays from you on that. When you look at this and think about that learning and Sachs’ career. Did you ever put those together and what see what washed out?

Helen Andrews (33:02):

A lot of people have accused Jeffrey Sachs of being an imperialist. A lot of people on the left, really the same kinds of people who use the word Neoliberal as a consonant slur. Those guys hate Jeffrey Sachs and colonialist is the word that they always throw at him. And he bristles at that insult. He hates the old empires. Me, I think that the left-wingers are accurate, insofar as they have gone and appropriated an analogy between what Jeffrey Sachs says and what the imperialists do, I just don’t think that’s necessarily a problem, I don’t consider Empire to be a flaw the way that they do. And that was something that I really wanted to talk about in the book because it’s one of the most astonishing achievements of the boomers in the last sixty years. Empire is the most common political form in human history. And many of the greatest governments in human history, those under which human flourishing has reached its highest summits, have been empires, it’s very difficult to make a historical case, for the idea that Empire is per se, a bad thing, or an evil thing. And yet, today, it has become conventional wisdom. All it took was one generation, saying that Empire is evil, for it to be ruled out for all time as a possible political arrangement. And that’s just really weird. One of the frameworks that I adopted and going through what to talk about in the book was to imagine a time traveler, somebody from 1950, or somebody from 1850, or somebody from 1250, transports to today. What things would they find weird? And the fact that we’ve decided empires per se evil would definitely be on the list of things that a time traveler would find very puzzling.

Richard Reinsch (35:03):

Well, I remember William Easterly, which I’ve read some of his books and Easterly and Sachs are opposites in the sense of Easterly, a classical liberal emphasizes trying to allow the spontaneous order of an economy in a developing country to come to fruition. And that this would be the best way for economic growth to happen and human flourishing, and that counteracts Sachs to a great degree. And you said, well, they’re both wrong, and what they should do, I think, they should actually look to the British Empire. I thought that was interesting. Just in light of this conversation, that’s a bold statement, Helen.

Helen Andrews (35:42):

I don’t know if I would say that they’re both wrong. I would also say that they’re both Right. And there are a lot of debates within the discipline of development economics. And Easterly versus Sachs is a good example. And I read a lot of them in the research for this chapter. And they were all very fruitful. They were all really smart people arguing about important topics. But for me, I think it’s worthwhile to take a step back from those debates, which are very insular within the tiny world of professional academic economists. And just consider big questions like how do we make Africa a better place to live in a slightly longer lens, from the perspective of centuries of history because if you get too much into the minutiae, you lose that sense of perspective. And so many people have gone to that wonderful, infuriating continent, trying to make it a better place to live.And a lot of them have done wonderful things. But in the end, humanity is humanity.

And Jeffrey Sachs goes around saying that we can eradicate extreme poverty not alleviate it, eradicate it. And that history lacks, and claims like that, and so do I. And there is no solution to the problems posed by Africa or the problems posed by any human policy, other than imperfect human judgments, and learning from experience. And so the thing that drives me crazy about the boomers and about Easterly versus Sachs and about development economics is the discipline, is that it cuts itself off deliberately, from a wonderful source of imperfect human experience. And that is the history of the 19th-century empires, not just the British, but the French, the Portuguese, everybody who has gone to the third world and tried to make it better, through the means of Empire. If you’re going to say that Empire is evil, and those people don’t have anything to say to us, you’re cutting yourself off from people who were if you learned a little bit more about them, would remind you of yourself and would have really useful things to say to you. So that’s the point of defending Empire is that it’s a resource, and we should learn from it. And if we start off from the premise that all those people were battling evil racists, we’re never going to learn the lessons that they could teach us.

Richard Reinsch (38:24):

I think you’ve got your next book. No, I’m serious. I would read it. Camille Paglia, you are critical of her. I think overall, you discuss what’s been a very interesting career. She’s somewhat, I remember beginning to read her in college, favored by many conservative thinkers because she… Very aggressive ridiculing at times, feminist writers and thinkers, and certain claims of the gay rights movement she’s been very critical of, but you place her within also a boomer deformation of culture.

The baby boomers rewrote American history to center it on themselves. They said that America was a terrible, horrible racist country where nothing good ever happens until about the 1960s when we showed up. So the only good thing about American history is the baby boomers themselves. I don’t know how they got away with that. That’s just transparently narcissistic and ridiculous to try and pull on the American people, but they succeeded. And now the millennials are, to my great dismay, in agreement with the boomers that the only good thing about American history is what the boomers did.

Helen Andrews (39:02):

I understand why conservatives like her. Not only does she beat up on the feminists, but she also was a valuable warrior in the PC wars of the 1990s. She was right there next to Allan Bloom, saying that the western canon is worth studying. And don’t you dare come in here telling me Emily Dickinson is bad because she was white. Don’t even start with me on that. And so good for Camille in taking that line in the ’90s when it took guts to say things like that. Where she parted ways with Allan Bloom was on the subject of popular culture. She loved Madonna. She loves Hollywood movies. Hollywood is just a running theme in all of her books. And that really, to me, is-

Richard Reinsch (39:51):

And pornography.

Helen Andrews (39:53):

Well, that’s almost a story in itself but if you’re a millennial, those are two very important things in terms of explaining how your life is different from how it would have been if you had lived 50 or 100 years ago. On the one hand, your head is stuffed with all kinds of pop-cultural knowledge. I sometimes wonder if the space in my brain that is currently occupied by knowing the tracklisting and personnel of every Steely Dan album might not have been better deployed knowing things like I don’t know the Emperor or Rome or something, anything more useful. But I cease to marvel at the classical literacy of the Victorian once I realized just how much pop culture minutia was occupying space in my own head. And Camille Paglia is right there at the front saying those two things are equivalent. It is just as worthwhile for someone to have an encyclopedic knowledge of the films of Joan Crawford, as it is for someone to have encyclopedic knowledge of the work of Milton. And I just don’t think that’s true.

Richard Reinsch (41:08):

How would she square that then with the defense of the Western canon? Was she just being irksome to PC activists because that’s a contradiction?

Helen Andrews (41:17):

She wanted to elevate pop culture, to the level of the Western canon she held them both in high esteem. She’s a believer in standards, which is one of the things that I respect her for. When the PC wars where people were saying there’s no such thing as standards, everything is relative. She said, “No, shut up. There are standards, there is a difference between things that are good and works of genius, and things that are bad, and not.” She just happens to think that the films of Ingmar Bergman qualify under the heading of works of genius.

Richard Reinsch (41:47):

Where do you think she falters? Or why? Is it because she dismisses perhaps a classical account of the soul and virtues or something along those lines by which one would begin to evaluate of great thought and writing.

Helen Andrews (42:02):

She wanted to put pop culture, side by side with the Western canon. And she assumed that people would learn both of them. But as a millennial, I am in a position to tell her that that is not the way it has worked out in practice for my generation. Yes, she was very successful in getting my generation to be taught to take pop culture seriously. The problem is that that crowded out the Western canon learning that we should have gotten. And I also think it’s important to consider the vast impact of pop culture, not just in education. The boomers were the first generation to grow up surrounded by television. And I think that television has had all of the terrible brain-deadening effects that the doomsayers in the 1950s predicted that it would. One of the greatest anecdotes about Camille Paglia that I mentioned in that chapter is that she had a very famous debate with Neil Postman, the author of Amusing Ourselves to Death, in which he really took aim at pop culture and media, the way that the media landscape was deadening and warping the human mind making us all perpetual adolescence. And in this great debate with Neil Postman, Camille took the side in defense of visual media she said, “TV is great. I wrote my great magnum opus with my TV running in the background.” And that actual debate that she had was inconclusive. But a decade later an anniversary edition of Amusing Ourselves to Death was put out by Penguin Random House, and Camille Paglia blurbed it and she says in her blurb, “I used to think that Postman was just a doomsayer. But now I have come to the conclusion that he was absolutely right.”

Richard Reinsch (44:04):

Wow. Yeah, I remember reading it.

Helen Andrews (44:08):

And I think some of that might be the result of teaching college students to be. Camille Paglia is a working professor. She teaches at a college in Philadelphia. And I think she has seen in her own students, just how ignorant they are of the Western canon. So maybe that’s where that disillusionment came.

Richard Reinsch (44:26):

No, that’s something I hear from professors all the time, every year the students get worse. And this is at universities we think of as elite. And every year, their thinking and writing skills deteriorate. And also the fact of what they know gets less and less relevant. Thinking about and then the conclusion of your book what do we need to unlearn? As I finished your book, it was like, “Wow, if Helen’s right then we really got a lot to do here.” In terms of thinking about the legacy of the boomers, one of the things I took from your book is Millennials are further deepening these holes that have been dug for them by the baby boomers.

Helen Andrews (45:16):

That’s absolutely right. The baby boomers rewrote American history to center it on themselves. They said that America was a terrible, horrible racist country where nothing good ever happens until about the 1960s when we showed up. So the only good thing about American history is the baby boomers themselves. I don’t know how they got away with that. That’s just transparently narcissistic and ridiculous to try and pull on the American people, but they succeeded. And now the millennials are, to my great dismay, in agreement with the boomers that the only good thing about American history is what the boomers did.

And so the millennials are keen to adopt all of the boomers favorite political causes and reenact their methods, have their own 1968 student rebellions in the streets. I think that’s what’s going on with Antifa, I think that’s what we saw over the summer. So in order for things to get better, we first have to break free of the boomers set of values and their way of looking at the world and their version of our story of ourselves. It’s understandable that the boomer version has been able to dominate America for so long because so much of the boomers and why they are the way they are is explainable by their demographic tests, there are just so many of them, and they have outnumbered the rest of us for so long. And that’s why they managed to get away with so much. But as their numbers dwindle, I hope that we are able to take advantage of the boomers weakening demographic positions in order to get some alternative storylines going around there, which the millennials, sadly has so far not shown any interest in doing.

Richard Reinsch (47:04):

Something you note, which I agree with that I have thought about when thinking about the protests this summer. When I hear stories, anecdotally, from boomers of protests that they were involved in, I’ve also talked to people who were counter-protesters in the 1960s. And the awareness that basically America was not out on the side of the protesters, and we forget when we think about the Kent State tragedy, Americans weren’t exactly sympathetic to what they were doing there that day but this has really changed. And you note this and it’s a society where the guardrails have fallen off. And there’s this insistence on, “Well, let’s further deplete what good resources we have.” And as you think about what’s one thing that’s been working well in America the past few decades, and it’s been control of crime, particular in our larger cities, and that’s now at least temporarily, perhaps, fallen off from these latest rounds of protests, which do seem to regurgitate or revive or rhyme with a lot of theories from the 1960s.

Helen Andrews (48:07):

I think the moment that I realized things were going to be different this time around, was when NASCAR went woke, and the NFL went woke, I thought, “Gosh, if even bastions of reactionary culture are falling in line behind the latest woke BLM line, then things must be a lot worse than I thought whatever silent majority I thought was out there, it clearly is not anymore. And we saw that in polling results over the summer, when even after these riots had led to death, and millions of dollars in property damage, you still saw a large majority saying, “Yes, I support Black Lives Matter and their current protests.” So the silent majority is gone. It is absolutely gone. And that means that there’s not going to be a correction of the kind that we saw in the 1970s where America acted out and got its protest on. But then in came Richard Nixon and we have a return to normalcy, round two. And that’s not going to happen this time. So I think the widening gyre is just going to keep on a widening, and I’m very apprehensive. I wish I had a better, more optimistic answer for you, Richard I’m really wishing I had some hope to extend. But I just don’t think I do.

Richard Reinsch (49:27):

I tried to write a piece. It’s in National Affairs right now. I played around with Montesquieu and faction and how there is still a group of Americans who they think they’re moderating our politics and they’re willing to change sides if they think some things are getting out of control. You did see in the 2020 election, this is one of the more interesting things of the 2020 election amongst a very interesting election overall was the willingness of certain minority groups to be open and actually crossover and vote in the Republican party and I think a huge part of that were the protests. And so the silent majority maybe is more silent but is open to appeals along these lines because of these tendencies. So maybe there’s something there.

Helen Andrews (50:13):

I don’t know, people said that Biden winning the nomination was evidence for a silent majority within the Democratic Party. And I can see why people think that because Joe Biden, he’s not even a boomer. He’s a pre-boomer and he says things like “malarkey,” and he’s very old-fashioned. So he’s not a crazy, woke, insane person. And yet, when you see how he behaves, he is perfectly willing to recite whatever woke platitudes his handlers give him. Kamala Harris is number two on the ticket she’s going to be taking over soon and she’s way out in left field on all of this stuff, that people staffing his administration are fully paid up believers in the most extreme version of millennial wokeness. So putting a sensible middle-of-the-road guy at the top of the ticket doesn’t seem to actually help anything. So that makes me maybe even more pessimistic than I was before rather than convincing me of the existence of a silent majority.

Richard Reinsch (51:15):

Okay. Well, Helen on that we can end. The book is Boomers, The Men and Women Who Promised Freedom and Delivered Disaster. We’ve been talking with the author, Helen Andrews, thank you so much for your time. It’s been great.

Helen Andrews (51:30):

Thank you. This is fun.

Reading Exodus Mar 13, 2021

Richard Reinsch (00:04):

Today we’re talking with Leon Kass about his new book, Founding God’s Nation: Reading Exodus. Leon Kass is one of our most significant thinkers and writers. He has the distinction of having a medical degree and being a practicing physician at one point in his career, but also is known for teaching at the Committee on Social Thought at the University of Chicago for decades and also being a major public intellectual. He is at the American Enterprise Institute and is the author of a number of wonderful books and essays, including Reading Genesis. He was also the chair of George W. Bush’s Council on Bioethics and, I should also mention, co-editor along with Amy Kass and Diane Schaub of What So Proudly We Hail, a book that American civic educators definitely need at this point. Leon Kass, thank you so much for coming on the program.

Leon Kass (01:22):

Thank you very much, Richard for having me. Pleasure to be with you again.

Richard Reinsch (01:23):

It’s my honor to have you on. This book, Founding God’s Nation: Reading Exodus, now, at one level, you write a book on Genesis, so maybe it’s natural or logical that you would turn to another book on Exodus. Yet, this is a weighty book, a lot of analysis, but one that pays well in reading. I can say that to all of our listeners. But why did you turn not just to reading Exodus but wanting to write a book on it?

Leon Kass (01:51):

Well, I mean partly, as you say, Richard, it is a sequel to the book on Genesis which, like the first book, is being read in search of its wisdom. In Genesis, we saw how after the first 11 chapters from the Garden of Eden, Cain and Abel, the flood, Noah and his sons, and Babel, where it would show us what human life would be like left to its own devices. Beginning with Abraham, God embarks on a project to introduce into the world a way of life that can minimize the evils of human life uninstructed. The rest of that book shows how the germ of that new way of life barely survives two to three patriarchal generations.

If you want to know how you get from families to peoplehood, you got to read Exodus. So in terms of subject matter, I want to follow the emergence of the Israelites as a people. For historical reasons, they are one of the world’s oldest and most consequential nations. But continuing to read philosophically, I hope to learn from reading Exodus about nationhood, using the case of Israel as an example. What actually makes a people into a people? What forms their communal identity, holds them together, guides their lives? To what do they look up and for what should they strive? On the assumption that this particular case might provide material for thinking about and maybe even teach us a thing or two of importance about those permanent human questions, that really was what I was hoping to find.

Richard Reinsch (03:32):

You say you read Exodus philosophically. Now, I thought that was interesting. As a Christian, I’ve always read it as something revealed directly from God through human agency and those who wrote it. You sort of outline that. What did you discover in a philosophical reading of Exodus?

Leon Kass (03:53):

Well, I should perhaps say a sentence or two more about by philosophical. I don’t mean reading as they would do in a philosophy department necessarily or reading it irreverently. I mean that I treat this book regardless of the authorship and even if it’s a revealed book, I’m reading it not necessarily because it’s binding on me, but because it has wisdom that’s available to me even if I’m not yet a member of the community. Moses, in fact, says deep in Deuteronomy about the laws. He says, “These laws are your wisdom in the eye of the nations.” So there’s a sense in which, although the Bible might be binding in terms of its law and obligations only on the people within the covenant, nevertheless, there are teachings there that if people were willing to have a look, might be available to everybody. So that’s what I mean by philosophical, wisdom-seeking.

I don’t want just to learn about the book, but I want to learn from it and to learn from it by dwelling with it, by living with it, by imagining myself a participant in the story, but also stepping back with the aid of the text to reflect on it. I suspend whatever disbelief I might have about God or anything else. I’m just going to enter into this leaving my own prejudices aside as much as I can. I treat the book as a whole book, as an integral whole with a beginning and a middle and an end, not some patchwork quilt from different sources, like the source critics like to talk about. I read it naively. I try to keep my own opinions to myself. I read it without commentary and try to learn from the text how it wants to be read. I treat every word as if every word matters, the juxtapositions, the ambiguities. The silences are invitations to reflection. If you just slow yourself down and ask yourself, “What’s going on here? What does this mean? What sense does it make? What can you learn from it?” It’s amazing what you could learn from it, even if you haven’t signed up as a member of a faith community to begin with.

I’ve allowed the text to work on me, to live with me, to live inside me. I’ve had a filling out not only of the political, philosophical questions with which I began, but also in who and what exactly and less who and what, but more what it means to live in relation to this voice and this teaching and this source of this teaching because, as God says to Moses, “I will be what I will be.”

Richard Reinsch (06:28):

I wanted to ask you a question. I’ve got a lot of questions about something you just said. How does the text, Exodus, want to be read?

Leon Kass (06:37):

How does the text want to be read?

Richard Reinsch (06:39):

Yes.

Leon Kass (06:42):

I mean this is perhaps presumptuous of me to say, but dwelling on it, dwelling in this text for, well, more than 20 years, I first started teaching it at Chicago in 1998, a full course devoted just to Exodus, 10 weeks, four hours a week, undergraduates and graduates. I repeated that five more times, had a study group in Washington with friends and family members, really high-caliber people. I taught a class in Jerusalem at Shalem College, Israeli students, and another very intense seminar where people who really knew the Bible much better than I do read my draft chapters with me and actually got me across the finish line. I had to produce a chapter a week because they were meeting to discuss it. So over this time, look, it tells a story.

If you want to read it, you could either read it the way the scholars do as a prism, as an information about the beliefs and myths of an ancient people. Or you can read it as the Orthodox Jews do and pick out from this narrative story what are the laws that are obligatory? The rabbis have, in fact, treated the text in that way to extract the details of the law that have kept alive a way of life even though they were no longer living in the land for 2000 years till Israel was reestablished. Or you can read it by sort of submitting and saying, “What’s going on here?” And try to enter into this text as intimately as you can, to imagine yourself each character, even to imagine yourself Pharaoh, even though he’s the bad guy in the story, and to try to see the world through his eyes so that the power of the contest between Moses and God and Pharaoh turns out to be a real victory and not just beating up on some fellow who’s stupid and stubborn.

I think the thing that finally came to me is that the story is not a history book. The story is a book that’s intended to somehow move the soul of the reader to understand certain things, to believe certain things, to come to know not just the story of the people but also of their God. Maybe this is premature in this conversation, Richard, but a person who doesn’t know anything about the book picks it up on the first page, “In the beginning, God created the heaven and the Earth.” I mean we can’t help being moderns in a Judeo-Christian tradition, having some idea of who this character, God, is. Our head is filled with stuff on it. But for a reader who doesn’t have all of that going for him or her, the name, God, is a kind of placeholder in the text, the meaning of which is going to be filled in as you read along.

I have to say that these last few times through, the thing I’ve learned the most about in reading Exodus is because I’ve allowed the text to work on me to live with me, to live inside me. If I’ve had a filling out not only of the political, philosophical questions with which I began, but also in who and what exactly and less who and what, but more what it means to live in relation to this voice and this teaching and this source of this teaching because, as God says to Moses, “I will be what I will be,” which is a rejection of the answer for a name that would give His essence, but basically says, “You want to know who I am? Pay attention and see what I do.” In the course of Exodus, you see what He does and you see the effect of what He does.

When the tabernacle is erected and you imagine yourself inside with the people, a building that you’ve built under His instructions so that you might have an experience of His presence in your daily life, I imagine myself in that place. I begin to see what it might be like to acknowledge the source greater than us, a teacher who has given us our law, et cetera, et cetera. So I think the thing that I’ve learned this time through, the book wants to be read by a person who imagines himself a character in the story, not one of the ones talked about, but as a living participant in this book, both through memory but also through allowing the text to be actively at work in him. I’ve done that reading Plato’s dialogues. I’ve done it with other books. But it takes a while before you make this book as a book, not just as selected passages, but as a whole book, something that you live with and it works on you.

Richard Reinsch (11:58):

Building on that question, I love the way you write about Moses in the book. How did you live with his example and trials in the Book of Exodus?

Leon Kass (12:13):

Look, this is an absolutely astounding figure. God needs a champion to bring the children of Israel out of Egypt. He doesn’t find some Spartacus to lead a slave revolt. He gets Himself an outsider who’s born to the Levi family, the spirited tribe. He gets an Egyptian rearing an education in the palace. The text doesn’t say a peep about it but, boy, it would be really interesting to know what did he study there? It makes a difference. When you first meet him, he’s a spirited defender of the underdog. He’s offended by injustice. He’s a passionate young man, but he also has a kind of philosophical side. He wants to know, and God catches him on the curiosity side of the burning bush. Moses turns aside to see why this bush is not consumed. None of the patriarchs ask why. Moses wants to know the cause.

Although he’s curious, his wonder turns to awe when the voice speaks to him out of the bush and says that, “I am the God of your father, the God of Abraham, Isaac, and Jacob. Take off your shoes. You’re standing on sacred ground.” It’s the most beautiful description of awe in literature that I know. And yet, Moses’ philosophical disposition isn’t silenced. He still wants to know God’s name in the conversation there. He takes on the job, but a very reluctant leader. So beginning, you’ve got Moses who’s a spirited young man, a very philosophical man, sort of reluctant about this job, but he goes. Then you see him get on-the-job training with Pharaoh. He’s sort of courageously holding his own in the administration of the signs and wonders known as the plague. He gains stature as God’s agent, but he increasingly takes his own initiative.

At the end of the story of the plagues when the Egyptians finally know about God, the Egyptian who’s learned most about him is Moses himself. He learns the difference between a God who is a voice in his head as he goes along the rest of his life. He’s got this voice traveling with him. He learns about God as the antithesis of Egypt and, in a way, as a correction of whatever philosophical teachings he picked up there. Then the next great moment is at the sea of reeds after the Egyptians drown and the children of Israel now trust in God and in His servant, Moses. What does Moses do with that trust? He becomes a poet and he writes the immortal song of the sea which interprets for generations to come the meaning of the event that’s just been witnessed. He teaches the Israelites that this was not a victory that I caused, but this is a victory of the Lord, the man of war who is like you among the gods. This is the equivalent of Lincoln at Gettysburg teaching everybody the meaning of the sacrifice and the meaning of the war. So Moses is not only philosopher and not only spirited leader, but poet and interpreter.

Richard Reinsch (15:53):

Interesting. In different ways you write about Moses, one of which is something that perhaps we need to learn, although when I say it we’ll automatically think authoritarianism or something. But his obedience to what he’s called to do, because it doesn’t happen right away, that meaning the liberation of the Israelites. But he keeps at it. The first time he goes in to Pharaoh, you point out, he’s arrogant. He goes in with his brother, Aaron. He’s arrogant. He wants to do it his way and he fails. He almost loses everything. And then he has to go back and do it the way he was told by God. I just thought, obedience. I mean I’ve been thinking generally obedience is something we need in appropriate ways to reconsider our culture. But I thought that was worth mentioning.

Leon Kass (16:40):

Yeah. He is obedient, but gradually as he gets the point, he’s able to embellish and act on his own, not from arrogance but because he’s gotten the spirit of it so that there are certain things he says to Pharaoh later on that he’s not told. In a kind of crucial time for him, I mean we see him … Well, one of the great moments, and this is not generally noticed, Moses doesn’t really like this people, and not without cause. They’re slavish. His first encounter with them when he tries to break up a fight between the battling Israelites and one says to him, “Who made you a prince ruler over us? Do you want to kill us like you killed the Egyptian?”

Moses says these people are ungovernable and repeated episodes of that. So he always calls them either, “Your people,” when talking to God or, “That people.” It’s only after the episode of the golden calf where he starts to plead for them against God’s threat to destroy them, that he finally identifies with them and starts calling them, “We, my people, our people, us.” His relation to God is on an intellectual plane. He doesn’t really understand why the people need … He can go 40 days and 40 nights without food and water. He doesn’t understand ordinary people. But finally, finally, he embraces them. He stands for them. It’s really one of the most beautiful moments where you see God makes him, in a way, plead for them. As a result for pleading for them, he now owns them and owns up to being part of them. That’s, in a way, the leader really becoming of the people and not as he’s in endanger of being seen by them as a separate god high and above them.

Richard Reinsch (18:45):

It’s funny. As I was reading your book, I thought to myself, “I’ve never really given that point consideration, Moses’ separateness.” What did you make of that, that the liberator would be separate from the people? I thought, “I’ve never given that consideration before.”

Leon Kass (18:58):

The problem of political leadership could be stated something like this. I mean you start with slavery. Then you move to a condition of anarchy. And then you get that before the law is given and they work on Moses’ charisma. Then the law is given and there’s still hierarchy. But in the end, Moses disappears into his law, not in Exodus, but in Deuteronomy. You then have equity under the law. That’s sort of the sequence of political things here. But if you’re going to have a political leader and you cannot somehow expect the people to liberate themselves from servitude, then the danger is the leader has to be sufficiently above the people to command their respect and to be followed, but not so high above them that they mistake him for God and that he himself might mistake him for that. He can’t be so close to the people as Aaron gets to be, that they can manipulate him, hold him in contempt, and revolt against him. So the problem of the relation between the leader and the led is one of the late … It’s not a theme. The book doesn’t have themes. But it’s a thread that you can follow here in how Moses came from being, in a way, much too good for them, to not only taking pity on them but embracing the cause not just from on high but from among them.

Richard Reinsch (20:40):

I mean just a big question here. How did this change or did it change your thinking about freedom and virtue generally?

Leon Kass (20:49):

Well, that’s very welcome. The Book of Exodus is taken by lots of people as a kind of basic text and inspiration for various struggles of national liberation. To go from slavery to freedom is thought to be the main theme of the first third of the book. But it’s very curious. It’s not the language of the text. There are Hebrew words for freedom, but they don’t occur at all in the story of the liberation from Egypt. Instead, the terms are redemption and deliverance. The transition really is said to be from service, I should say servitude to Pharaoh, not to autonomy but to service to God. In one of the most powerful insights that I think I had from this text in reading the beginning of the 10 commandments, it begins when God says when He starts to speak out of the mountain to the people, “I am Yahweh your God who brought you out of the land of Egypt out of the house of bondage.” Now, as a historical statement in the text, that’s true. He is the same one here on the mountain who was the one who brought you out of Egypt and then, redundantly, out of the house of bondage, suggestion.

The Israelites are told basically, “You people have two great and enduring possibilities. You can either be aligned with me and follow me and have a relation with me or the alternative is there’s the land of Egypt and the house of bondage.” Those are the two enduring human possibilities, either some relation with God or live in the kind of way that ultimately will lead to being enslaved to men and to the mightiest of men. I think that even though the language of freedom doesn’t occur, I think it can speak to our understanding of freedom in the following ways. First of all, if freedom is opposed to being in bondage, it’s clear. They’re no longer subordinate to human will and to despotism.

I would say that Israel becomes a people in the Book of Exodus in three phases, and its peoplehood rests on three pillars. First is the shared story of slavery and deliverance. Second, they get a comprehensive law governing all aspects of life through constraint, through encouragement and uplift. That happens at Sinai, the Ten Commandments, the ordinances. Third, the building of the tabernacle, which is a place of worship.

Second, they acquire national self-rule under wise legislation, in this case, divinely given and/or inspired. The rule of law is consented to. The covenant is consented to. This rule of law, unlike comparable law of the ancient Near East, all are equal before this law. There’s not one law for the nobles and one law for the commons.

Third, the law doesn’t speak this language, but the law aims to free people internally from the enslaving passions, from fear and despair because we think we are lowly and of no consequence, from the opposite pride and hubris because we tend to believe in our human superiority and self-sufficiency, from our greed and stinginess because we think the world is inhospitable and will not provide for us. In a way, freedom here means not doing as you please, but doing as you should so that you will no longer be slave to Pharaoh or be enslaved within. I mean the formula would be getting the slaves out of Egypt was the easy part. Getting Egypt out of the slaves took forever and is not finished. These are people who have been emancipated or have been delivered from servitude to acquire a way of life, a kind of law that will make them free, make them free to be what it means to be the only creature made in God’s image.

Richard Reinsch (24:48):

I said obedience earlier talking about Moses. In listening to you, there’s almost this idea maybe obedience takes the form of participation in the law. Through that emerges your freedom. The temptations to lowliness or the temptations to arrogance fall away and you actually find who you’re supposed to be maybe. That is a thought that I had listening to you.

Leon Kass (25:14):

That’s wonderful. There are two nice formulas about the Torah. The Torah is a yoke and the Torah is a tree of life. In my formulation, putting them together is, the Torah is a tree of life because one has voluntarily put one’s neck in the yoke. The yoke sounds like slavery. It’s oxen. You tame the stiff-necked beast by yoking him. But if you voluntarily put your neck into this yoke, it enables you to live upright, rooted, reaching for what’s highest.

Richard Reinsch (25:56):

Yeah. Something else you said, law and self-rule. What kind of a nation is formed in the Book of Exodus?

Leon Kass (26:05):

This is complicated. English language has two words that we use interchangeably often, I do it myself, nation and people. The word, nation, comes from the Latin word, natio, meaning birth. A nation would be a large, distinct group of people who are united through generations upon generations of common descent from which follows by their separation, probably common language and culture. Whereas, a people is less a naturally constituted body, but would be a group of human beings who are united by a common story, by common mores and law, by shared aspirations, shared ideals and institutions, a common way of life. We would say, I think, of the United States, but we sometimes call it a nation. But the United States are a people, “We the people,” et cetera. That’s a people-defining act in the constituting law, just as the covenant approving consent is the constituting moment, the first major constituting moment of the children of Israel. I would say that I use the word, nation, but I, in a way, mean it in the sense of people.

I would say that Israel becomes a people in the Book of Exodus in three phases, and its peoplehood rests on three pillars. First is the shared story of slavery and deliverance. This is told from generation to generation. In fact, the deliverance is for the sake of the story. One of the most astounding things is the commandment to tell the story annually at Passover is given the night before they actually go out. So they go out instructed already thinking about their children and their children’s children who have to hear this story. So one of the fundamental features of being a nation is you have a shared national story that tells of your servitude and divine deliverance. Second, is they get a comprehensive law governing all aspects of life through constraint, through encouragement and uplift. That happens at Sinai, the Ten Commandments, the ordinances. But third, and this is in there and I used to neglect this because a lot of the description’s just boring, is the building of the tabernacle, which is a place of worship. This embodies the people’s aspiration not only to have rules governing their conduct with each other, but to remain in contact with their God, with what is highest. Those are the three pillars of Israel’s founding.

If you’re reading this not just historically but for its wisdom, you can then ask yourself the question, “Can a people, a people such as ours, flourish if it lacks a shared national story, if it shares an accepted law and mores, and if it shares common aspirations of something higher than our own comfort and safety?” The book doesn’t do contemporary politics. There’s a paragraph or two at the very end, but I think it’s a serious question for us whether we can substitute technological progress, economic prosperity, private pursuits of happiness in place of a national story which is now contested and partly despised in the nation when our morals are weakened, when the national dedication is abandoned. It looks like we’re in danger of losing our national fabric and submit to angry passions, technocracy, and hedonism.

Richard Reinsch (30:21):

Reading your book, that came to mind because I think what was going on, particularly this summer when monuments were being defaced and destroyed, was something like ancient tribal warfare in the sense of we destroy your gods. We reject your gods. That’s why we pull them down. That’s why we rename high schools. Just reading before we got in this discussion today, a high school in San Francisco named Abraham Lincoln High School is going to have its name changed, these sorts of things, yeah, losing your shared national story. I thought also, and this is more controversial, thinking about the tabernacle discussion in the book, it suggests that a good nation also has to have a third term, that being not just the people in the law, the people in the government, but something higher than both that they submit to, participate into, that grounds them. I think that’s also a part of any well-regarded, healthy national loyalty.

I’m teaching the founding text of the Jewish people to really admirable, noble young people. All of them had done national service being coming to college. I’m reading it in Jerusalem in a reborn land of the people after 2000 years of dispersion, kept alive only by adherence to this book and the ones written on top of it. They’re reading it and speaking a language which until 100 years ago had not been spoken in public in everyday life anywhere in the world for 2000 years.

Leon Kass (31:25):

I agree with you completely. Near the end of the book, I quote Chesterton, his remark, “When men choose not to believe in God, they do not thereafter believe in nothing. They then become capable of believing in anything.” The other thing, really important thing I learned, you see, Israel is formed as a nation or a people in a context that has several other very dominant nations, Egypt, the Canaanites, and the Babylonians or Mesopotamians. These are just ancient peoples, but what they represent or what the soul of those nations were are permanent human alternatives. In Egypt, you have the techno-administrative state finally ruled by one man and his will. Among the Canaanites, you have Earth-worshiping people with licentious sexual practices. In Babel, you have the cosmopolitan soulless dream that man can be a god to man. Those alternatives are here waiting in the wings. They’re waiting in the wings. With atheism on the rise in the West and in America, we could very well return to those dehumanizing pre-biblical conditions where the choices will be the battles between the Egyptians, the Canaanites, and the Babel builders. The achievements of biblically-based Western civilization could be permanently lost. My serious Christian friends tell me despair is a sin. I have a close Catholic friend who told me, “Leon, God will win in the end. You may not live to see it.” I hope he’s right.

Richard Reinsch (33:21):

I thought too your discussion of Egypt and Pharaoh, the overwhelming power of this state, of this empire, and also Pharaoh’s power, the attempt to use science and magic, to worship and also control nature I thought was significant in thinking about the modernist quest. And then also Pharaoh’s attempt to control life and death, in particular, to control birth, and you made the observation, “This is every what tyrant does, to control birth of those worth dwelling on.”

Leon Kass (34:00):

Yeah. Look, we’re halfway there. I mean the technological project to conquer nature, to relieve the human condition begun by Francis Bacon and friends in the early 17th century, the ultimate goal of the project, the mastery of nature, is to eliminate mortality. At the end of Genesis, one saw the two alternatives very starkly laid out. We had the funeral of Jacob in which his sons take him back and bury him in the cave and which the idea is you bury the dead and you transmit their way of life in remembrance of the covenant with God that began all of this. The alternative was the mummification of Joseph in Egypt where he will lie in rest. He actually asks to be taken out, but with the pharaohs lying in wait until the magicians can figure out how to reanimate them. There it’s this world and this life for ourselves and for the mighty alone rather than a way of life which is transmitted from generation to generation, excepting for now the limitations of our mortality but keeping alive a righteous and a holy way of life which is why we’re put on Earth to live. The West has been nourished by this fountain. Now the project to finish the Egyptian project is back and it’s doing very well. By the way, lest I be misunderstood, only an idiot would complain about modern science in the age of COVID. God bless them, but within limitations.

Richard Reinsch (35:52):

That’s why I wanted the modernist quest or the notion that some of these can relieve us of the human condition, that somehow economics or science alone or medicine alone can somehow answer the deepest questions finally is a source of many problems. Something else that’s working in Exodus is the plagues, the visiting of the plagues on Pharaoh. I think that, to me, was instructive in the sense of power meeting power and one man’s quest to use power finally defeated and that being something that Moses and the people need to see. I thought that was worth dwelling on.

Leon Kass (36:37):

It’s certainly about power, by the fact that Pharaoh’s magicians can only imitate two of the plagues. With each passing one, everybody else in Egypt tells Pharaoh, “Quit, we’re all going to be destroyed.” Pharaoh, strengthening his heart and refusing to give in, plays the game to the end. But the plagues are also a metaphysical contest about an attack on the gods of Egypt and finally on the highest god of all, Pharaoh himself. Pharaoh has wanted to be in command of life and death. Pharaoh finally yields when a god can come into a house and distinguish the firstborn from all the others, including in Pharaoh’s own house. So there’s a kind of contest not only about pure power, but the question is who’s right about divinity? That’s really very, very important.

Let me try to say this slightly differently. If you’re simply thinking about liberation or you’re simply thinking about power politics, you will miss the fact that God says He sends these plagues into Egypt, “So that Egypt may know who I am,” that the purpose of all of this, in a way, is knowledge. It’s knowledge. It’s knowledge to begin with with the Egyptians, including Moses the Egyptian. It’s finally because the greatest civilization of the world as they’re sinking into the water after the sea of reeds, the last thing you ever hear from Egypt in this book is, “It’s hopeless. The Lord fights for them.” It’s, in a way, the acknowledgment of the supremacy of the Lord God of Israel. When the Egyptians pay that tribute, the Israelites will know it and then the world might know it as well. So it’s a kind of correction of the wrong metaphysics of the belief in nature gods, on the one hand, and the belief in man’s godly powers on the other that are both at issue in that contest with the plagues.

Richard Reinsch (38:51):

Something I just wanted to circle back to here at the end, you said you taught this book for a number of years at Chicago and then in Israel. What did you discover from American students and Israeli students reading this book?

Leon Kass (39:09):

I had a class of mixed religious and nonreligious kids in both places actually. There were a small number of students in the American classes who were reared on the Bible, including a couple of evangelical Protestants who, they really knew the book. I learned from them because they pushed me on this or that or showed me things that I hadn’t yet seen. But they were willing to enter into my wisdom-seeking reading. In Israel, there were religious kids who had read the Bible from childhood. They read it with commentators. They never read it as a whole book. My favorite practice is to find passages and dilate upon them for their teaching for their law, for their wisdom. But that there could be a coherent political teaching through the book as a whole, that they had not done before, and what I was doing was strange. I was also teaching in English and some of them didn’t have adequate English.

But it turned out, in certain personal terms, the teaching of this text in Israel was just an extraordinary experience. I can’t find the right words. I’m teaching the founding text of the Jewish people to really admirable, noble young people. All of them had done national service being coming to college. I’m reading it in Jerusalem in a reborn land of the people after 2000 years of dispersion, kept alive only by adherence to this book and the ones written on top of it. They’re reading it and speaking a language which until 100 years ago had not been spoken in public in everyday life anywhere in the world for 2000 years. I have this privilege to do this, aged 77. I said to myself and I think I say it in the book, “Even an atheist would have to think this was a miracle.” It was as if I was on a kind of journey to have this experience to teach this book in this place to these people at this time of my life and that there was still something for me to see and learn. Teaching was frustrating, but I couldn’t shake this feeling that this was a kind of destined experience for me. It moved me immensely and has still.

Richard Reinsch (41:41):

Maybe we can end there. That was excellent. Leon Kass, thank you so much. We’ve been talking with the author of Founding God’s Nation: Reading Exodus. Thank you for coming.

Leon Kass (41:52):

Thanks very much, Richard.

Burke's Moral Economy Feb 01, 2021

Richard Reinsch (00:19):

Hello, I’m Richard Reinsch. Today we’re talking with Gregory Collins about his impressive new book, Commerce and Manners in Edmund Burke’s Political Economy. Gregory Collins is postdoctoral associate and a lecturer in the Program on Ethics, Politics, and Economics at Yale University. Gregory, welcome to the program.

Gregory Collins (00:43):

Hi, Richard. Thank you for the opportunity to talk.

Richard Reinsch (00:44):

Excellent. So thinking about political economy, which is the term you used throughout the book, what is Edmund Burke’s political economy? And maybe also, what do you mean by political economy? I think that’s worth thinking about too. We usually just think about economics, and economics almost as a separate sphere of study, but I think you mean something more here.

Gregory Collins (01:04):

Yes, that’s a great question because much of my book really hinges on an appropriate understanding of what political economy meant in Burke’s time and what it means today. So as you suggested, in Burke’s age, statesmen, thinkers, they studied political economy, not economics. Economics today is more of a specialized narrow field with particular quantitative methodological approaches. While in Burke’s time, it was a more capacious, holistic understanding of the intersecting concerns of commercial activity, trade, both domestic and foreign, as well as the broader social/religious/ethical preconditions for commercial activity. It was in this wide sense that Burke understood and tried to study the implications of commercial activity, which included, certainly, a particular insight into trade, taxation of revenue, but also broader considerations about the role of commerce in the wider social order.

Richard Reinsch (01:59):

What did Burke… What was his approach to political economy?

Gregory Collins (02:03):

His approach was… I would characterize it as a resistance towards specialization, in the broadest sense. He used this premise to inform his understanding of commercial activity, both in regard to the free internal grain trade, which was the subject of his primary economic writing, Thoughts and Details on Scarcity, and it informed his understanding of the political economy of the French Revolution and the political economy of European civilization as a whole. So, one of the core arguments in the book, which I’m going to jump to it right now, in the chapters on the French Revolution, and the great intellectual historian, John Pocock, the first, I believe, to recognize this in a pioneering essay he wrote on Burke’s political economy on French revolution.

Burke grew out of particular ethical preconditions that predated the mass commercial economy. The prior religious and social and ethical traditions that were built up throughout the ages by what he called the ‘spirit of the gentleman and the spirit of religion.’ So British establishment, such as the Church of England, and the hereditary aristocracy, which provided and encouraged a culture of learning, patronage, moral and religious instruction, all furnished the conditions of stability, moderation, an element of courtesy, chivalry, of course, that provided the necessary environment for commercial activity to emerge. Commercial activity which was more prone to vicissitudes, vagaries, unpredictability, and then the more stable orders of religion and the landed aristocracy. So, for Burke, these two pillars were essential for applying this foundation for the emergence of the mass commercial economy. If those two pillars withered way, this is part of Burke’s argument on French Revolution, then social order would decline, which for him would include commercial activity.

Richard Reinsch (03:49):

You note in the book, this put him at odds with many Enlightenment theorists, including many in the Scottish Enlightenment, on the origins of markets and the perpetuation of markets as well.

Gregory Collins (03:59):

Yes, yes. This is really a distinctive quality of Burke, with regard to sovereignty at the time. Many of the Scots, who I have to be fond of them, David Hume, Amanda Smith, Adam Ferguson. Well, Adam Ferguson’s argument was probably closer to Burke than the other two. But the general tenor of their understanding of markets is not that they severed markets morality. In fact, as we know Smith’s was moral philosophy, and he wrote a great book on moral philosophy, but as I… I outline the book… And Pocock also mentioned this, they didn’t appear to draw Burke’s specific argument that commercial activity grew out of these preconditions prior to the Enlightenment. And so not only, for Burke was there a necessary moral foundation for markets. This moral foundation was not a modern moral foundation. It was a pre-modern moral foundation. This is not to say that Burke elevated a romantic shimmery, but he thought that the roots of commercial order could be discovered prior to the industrial revolution, prior to the available-hand concept, prior to the elevation of profits as a worthy human endeavor. And then in addition, Burke he held an interesting attitude towards the idea of the doux-commerce theory, which is embraced by the Scots, embraced by the French, Enlightenment theorists as well, Thomas Paine, famously.

Richard Reinsch (05:08):

What’s the doux commerce theory?

Gregory Collins (05:10):

So doux commerce theory is the idea, and this idea persists today that the increase in commercial relations between two parties, including two nations, tend to produce peaceful effects over time. Two trading partners, as opposed to invading one another for land or power, they will find mutual interest in trading goods and services from one another. And therefore they have an investment in each other that would discourage them from starting a war with one another. The reasoning goes, therefore, the enhancement of commercial relations will promote peace relations over time. Now, Burke, he does not dismiss this. And in fact, he adopts this reasoning in regard to Ireland and England in his most comprehensive statement on free trade when he wrote two letters to merchants of Bristol, the community who was representing that opposed the free trade measures with Ireland.

Burke argued in favor of the free trade measures, for many of the reasons that advocates of doux commerce theory espouse today, that they do tend to promote peaceful social relations on their mutual interest and increasing trade with one another. And he also does this reasoning with regard to the American colonies in his famous speech on America. He lavished his praise on the Americans for their ingenuity, their industry, their intelligence, their hard-work, their commercial undertaking. And these are two of the clearest instances in which Burke does embrace this idea that the increase in commercial relations will tend to promote peaceful social relations, but he does not necessarily adopt this in his broader political thoughts. And the most glaring case was the French.

There are a couple examples. In 1786, Anglo-French Commercial Treaty. I mentioned his speech on Traders’ Correspondence primarily 1790s, during the French revolutionary wars, which Burke, push back against this idea that increasing commercial relations with France, or pre-revolutionary France and France during the revolution, would not necessarily have peace relations. The simple idea is that if you are engaged in commerce with an avowed enemy or rival, that is not a guarantee that that rival will tend to adopt peaceful measures. For Burke, in that sense, commercial considerations should be subordinate to wider national aims of honor of national interest. And how I harmonize these various strands of his thoughts and doux commerce, and as has been said before, it was not necessarily systematic thinkers, not treatises mostly.

So you have to piece together his different thoughts from various speeches and writings. I argue that, for Burke, even the doux commerce thesis, somewhat to his broader point about how modern commercial activity requires ethical preconditions. The doux commerce thesis, especially international relations, also requires pre-economic commitment, shared values, shared principles, which is why he thought that free trade between England and Ireland, England and the Americans best reflects the doux commerce. But in the case of France, which not have broad shared political principles, he did not think that increased commercial activity between England and France would have a peace relations. And so that’s the distinction I carve out in the book.

Richard Reinsch (08:09):

Okay. So you wouldn’t say Edmund Burke was a free trader, but you also wouldn’t say he was a mercantilist. You would say he is balancing international trade, or transnational trade, for its good effects and good consequences. But those aren’t its own justification. It has to also be balanced against national interest and the needs of the empire, and what’s going to best serve it, which… As I read your book, I heard you to be saying, “Generally, Edmund Burke favored pretty liberalized trade, but he made crucial exceptions.” And you’ve kind of articulated some of those here. And thinking about Burke’s political economy, I thought we might go to the beginning of your book and think about the arcane topic of Britain’s internal grain trade. You write at the beginning… Because I think it’s instructive in a lot of ways. You write at the beginning of chapter two, you say, “Burke discerned poetry in the elusive motions of England’s internal grain trade.” Gregory, talk about that poetry.

Gregory Collins (09:14):

Yes. The internal grain trade turned out to be one of the primary protagonists in this narrative. The internal grain trade was a subject of Burke’s primary arcane treatise, Thoughts and Details on Scarcity, which really wasn’t a treatise. It was a private letter written for government officials that addressed the particular circumstances of mid 1790s England, which in the middle of French revolutionary war has experienced a number of difficulties, including spiking green prices, increasing normalization, population growth. There’s only a few years before Thomas Malthus wrote his famous book on whether the food supply would be able to sustain the population growth. And for Burke, however, his principle argument in this track, Thoughts and Details on Scarcity, is that there was, what I call, poetry in order to their internal grain trade of England, that was delicate, that was fragile, but that nevertheless tended to work absent arbitrary meddling government intervention. And so Burke’s principle message in Thoughts and Details on Scarcity, he wrote this in light of calls to intervene in and increase regulations of the labor contracts between employers, employees, laborers, and farmers, and impose harsh controls, published in the new public graineries. Burke argued for government restraints. He thought that there was this order that emerged from the private contractual arrangements and interactions between farmers and laborers in the grain economy. And particularly in times of scarcity, he was very suspicious of the idea that government meddling, suppress controls, wage regulations, coopered to more beneficial consequences than if the grain trade was left to its own order. Now, this sounds like, and it is, a defense of a free market, a free domestic market. Throughout the book, I decided that this was, for Burkes, the most comprehensive intellectual statement on the internal grain trade. He defended the internal grain trade a number of other instances in the early 1770s and later in 1787, when they were tends to revive bans on, what we today call, middlemen trading activities, forestalling, rebranding and engrossing, which were various ways in which traders would buy up provisions before the edge of the market, and then we sell them at a higher price. So in these various instances, including in Thoughts and Details on Scarcity work issued a robust defense of the middlemen in the grain economy or enabling the efficient distribution of resources, particularly those in need. And the other additional point is that Burke anticipated as it’s described in the book, as a Hayek insight into the limits of rationality in coordinating complex socioeconomic activities. In Thoughts and Details on Scarcity

Richard Reinsch (11:55):

So, in this period, that he’s writing the Thoughts and Details on Scarcity, you’ve got a crisis, we’ve got food shortages, we’ve got spikes in prices, we’ve got people not making enough money, it seems. You’ve got all of these conditions. We confront those periodically in our own economy in different ways. And he’s pushing back against this… And from what I could read, in a way that Hayek would agree with, that Milton Friedman would largely agree with, he’s emphasizing that in a time of scarcity of seemingly economic failure. And he’s confronting proposals like a minimum wage.

As I think about it, they wanted to have the government take over granaries. So you could think about a public option for health care, as an analogy, there’s this desire to eliminate, as you were talking about middlemen, but those are just people who are making money, but they’re also providing an efficient way for grain to reach down-market buyers. And this is an efficiency thing. So he’s confronting all of this, and he’s saying, “Look, you’re actually going to make the situation worse. You’re going to depress the market for longer conditions. The recovery is going to take longer. It’s going to be less robust, but we’re not going to know what the real prices are.” So, all of these provisions are going to backfire,” as we say. “They will have unintended consequences.” And I thought that maybe you can tell us how successful he was in this debate. But I thought that was incredibly instructive. These things continue. These battles over market failure, not taking into account government failure, policy failure. All of this Burke is confronting here in a nice instructive way.

Gregory Collins (13:32):

Yes, this moment in the 1790s was the defining moment in England’s global economy, including its grain economy in the 18th century, really emerging for the more conspicuous presence, when Burke entered parliament, in 1760s. There were these periods in which there were food shortages, spikes in grain prices, instability in the grain market. And this was a constant subject of Burke’s concern of legislators concern about the time period. As exemplified in 1772, I should mention, when Burke led the repeal of the bans on middlemen trading activities, which were enforced… Not really enforced, but they’re still on the books. Edmund Burke or the repeal and parliament of these bans on the basis of what you just said, that these regulations tend to create conditions that were even worse for participants in the agriculture economy, when back in Burke’s judgment, they actually facilitated smooth efficiency of the distribution of goods and services.

Burke provided a thinking, comprehensive rebuke of what he called the paper money despotism of the French Revolution. The French revolutionaries, they seized the property of the Gallican Church, which owned around one 10th of landmass, I believe, in France, at that time. They were going to sell the church property to help pay down France’s debt. They have a financial calamity and short France’s finances.

In fact, last semester I taught a course on constitutional and business ethics. And antitrust cases, Standard Oil cases, it referenced this repeal of middleman trade activities. It didn’t mention Burke’s name, but it mentioned this repeal in the early 1770s, as an example of which the English grew to realize that these bans actually tended to help the operation of economic forces in the long run, as opposed to undermine them. And so Burke had an immediate impact on this debate. This is when Burke’s free markets really come out, and it could easily see Milton Friedman endorsing these arguments, and Hayek as well.

Richard Reinsch (15:02):

I mean Burke is developing the Hayek’s famous knowledge article. He’s developing those insights. He’s understanding that the market requires a lot of information that comes to you in bits and pieces. And it’s the participants in the market who can make the best decision, not this comprehensive rationalist approach that is being urged upon the market.

Gregory Collins (15:24):

Precisely, precisely. And then he has a couple of great quotations in Thoughts and Details that outline that point that individual legislators, magistrates, justice or the peace at a time, simply did not possess the amount of knowledge necessary to regulate his employment contracts and to regulate the flow of grain with vigor in effect. And therefore, there should be great deference paid to the actual participants in the economy, who are actually making decisions on whether to enter into contracts with one another, because they simply hold more wisdom, knowledge and experience about the particular conditions, which vary from person to person from farmer to farmer, labor to labor. Now, as I mentioned the book, I tend to be sympathetic to Burke’s argument in this case. But a couple of criticisms are necessary to mention.

One is Burke, perhaps, paint two positive picture of these supposedly harmonious relations between farmers and laborers, and because there is a vast amount of literature on this particular time period. And whether these structural relations in the agriculture economy was as peaceful and harmonious and as mutually reciprocal as Burke suggests in Thoughts and Details on Scarcity. And so I mentioned a couple articles that pushed back against this… They’re not Burke per se, but pushed back against this idea of a harmonious relations between farmers and laborers. But given that… Because this is when Burke’s brought a philosophical project. He does not deny that there are hardships at the time period. What he is arguing, and what you were suggesting, is that given limited alternatives during periods of difficulty, such as scarcity, which is the best out of imperfect options. That is his main point. And his judgment in this case is that the best off imperfect option is to practice government restraint as opposed to metal in the internal economic activities of farmers and laborers.

Richard Reinsch (17:01):

Let me ask you more broadly a question, Greg. So would you say Edmund Burke… I mean, someone listening to his podcast might say, “Edmund Burke, kind of a classical liberal, markets, small government guy, and capitalism, can solve a lot of problems.” How would you situate him broadly in the relationship between government, markets, and civil society?

Gregory Collins (17:24):

Yeah, that’s a great question. And when I was writing this, I had sort of a running debate with myself about whether Burke was or was not a classical liberal, to what extent was he, to what extent was he not, which was probably detective from reading the book. I determined that he did overlap with elements, what we considered to be classical liberalism, and admittedly, sometimes we parse these distinctions too finely for people, which maybe work in a classroom, but in reality what the actual practical difference between some of these different thinkers. But Burke did depart from fundamental presuppositions of classical liberalism, such as locking at the most famously in his criticism of the idea of that social contract as a consensual pact of free and independent individuals who joined the society to preserve the pre-political natural rights. Edmund Burke famously attacks his reasoning in Reflections on the Revolution of France.

Richard Reinsch (20:21):

The other thing about the French Revolution too, in this regard, you write about the Edmund Burke problem. That is to say generally in favor of markets, widespread commerce. At times, he says that markets come from nature, they emerge from human nature. And yet he also condemns the French revolutionary’s argument that rights, abstractly understood, come from nature. And that justifies the erasure of literally centuries of French tradition, religion, culture, law, they’re going to build again. Talk about how Edmund Burke understood those things.

Gregory Collins (21:02):

And that is a fundamental philosophical dilemma, but in general, if something is by nature natural, and anything that does not accord with that idea of nature exists, all those institutions’ practices, customs, illegitimate because they don’t conform to nature. For Burke… As I mentioned in the first chapter, French Revolutionaries, they did, at moments, endorse a free internal grain trade, but then they ended up meddling and imposing price controls, which was one element of the historical backdrop for Burke in Thoughts and Details on Scarcity. And so Burke also endorse a free internal grain trade. So, to what extent was Burke sympathetic to some of the revolutionaries’ arguments.

Also, the other historical consideration is the emergence of the physiocrats, the French economist, who embraced the idea that society should conform to nature. And therefore they justified a free marketing grain, and they were also accused of being very, very rationalistic and pushing this idea of abstract rationalism in the 18th century. So how would it Burke overcome this idea that if he embraced free markets, in part, because they were based on nature, but the physiocrats were embracing free markets, but they were embracing abstract rationalism. And the revolutionaries embracing free markets to some extent, but they were overturning French society. But whether did Burke come down to this issue, unfortunately, Burke does not provide a sufficient answer for this, but I pose that Burke, as he mentioned on his Thoughts and Details on Scarcity, supply and demand laws were part of the laws of nature, which was the laws the commerce, which were the laws of nature, which were the laws of God, that’s sort of the phrasology that he uses.

Recognizing the finite resources in society for him was a law of nature. However, insofar, as he held the conception of evolved nature, a natural law in general, which he called the moral law, binding people together, this law of nature was not the end-point for discussion on these issues. It could be a starting point, but it’s certainly not the end point. This is so much his critique of natural rights. He never fully reject the idea of natural rights, but what he does is question its import in these practical questions of how to actually establish and maintain political society. So if Edmund laws were a part of law of nature, to what extent, for Burke, could we integrate this idea of law of nature within a wider framework of what is necessary to perpetuate civilization?

And for him, then you integrate this law of nature with what he considers to be the foundations of civilization, which is religion, aristocracy, learning, chivalry, this ethical code that predate a commercial economy. If you merge all these elements together, it could provide for commercial prosperity while also providing for these elements’ stability to cool the process of commercial prosperity. And so that’s how I thought and try to tease out the tension in the top between embracing the law of nature and embracing this idea of cosmic tradition. For him, they were mutually symbiotic and could balance one another in a way that could both promise the fruits of material goods while also protecting against the crass commercialization, commodification of civil society.

Richard Reinsch (23:56):

You also know too, in the aftermath of the French Revolution, that Burke seems to… He argues… “What I’m saying is coming true. You have eliminated your past, you’ve attempted to do that, and you want to create a market on paper money. You want to create a market heavily funded in debt, giving things to people and look what’s happening to you. The French economy is now awash in corruption, inefficiencies.” I thought you wrote about that well. Maybe talk about that, how he sees that the paper money thing playing out.

Gregory Collins (24:31):

Yeah. So this is one of the underappreciated aspects of Burke’s thoughts for the economy, otherwise. But he provided a thinking, comprehensive rebuke of what he called the paper money despotism of the French Revolution. The French revolutionaries, they seized the property of the Gallican Church, which owned around one 10th of landmass, I believe, in France, at that time. They were going to sell the church property to help pay down France’s debt. They have a financial calamity and short France’s finances. And they also introduced what was first the kind of bond, then they use this fiat paper money called Assignat, pardon my French. But I believe it’s called Assignat. And this paper money was distributed throughout France and with a lack of prudence in disregard for the potential destructive consequences of paper money not backed by any sort of metal. And what ended up happening was this paper money led to the depreciation of the currency, inflation, hyperinflation as Burke predicted, price instability, price unpredictability, a lack of distrust from participants in France’s economy at the time.

It led to the invasion of private property rights of French authorities seizing grain in the countryside when farmers were hoarding grain because of this lack of regularity, the lack of consistency, the lack of predictability in these internal French markets, which in Burke’s judgment, were exacerbated by this worthless paper money that for him reflected both the economic improprieties of the revolutionaries and also some of the philosophical abstractions of the French Revolution as well.

The idea of paper money, that that could be used as a saving grace to save the French economy. And for Burke, as Burke predicted in the Reflections of the Revolution of France, he criticizes these Assignats, he predicts that they are going to create hyperinflation, and that’s what ends up happening. And so this is another dimension of his political economy.

Richard Reinsch (26:26):

Let’s switch gears to India, to the India question. You write at length on this in relationship to Edmund Burke and his approach to the East India Company and its policies in India and the authority it held for the British government to operate in India. Burke initiated an impeachment of Sir Warren Hastings, who was the director of the company, the overseer of its operations in India, for many abuses, physical cruelty displayed towards Indians among them.

You have a quote from Edmund Burke, the opening of his impeachment in 1788 of Warren Hastings, “The East India Company became that thing which was supposed by the Roman law so unsuitable. The same power was a trader, the same power was a Lord.” Talk about that because he sees the East India Company, it has a monopoly on trade in India. Burke says that’s just because it’s in this new exotic market, it should deserve a degree of protection. But then it proceeds by accumulating power to itself, accumulating the economies, local economies in India, to itself, destroying them and their own internal workings and then taking them over, and then also having this sort of quasi governmental power. And Burke opposes all of this, maybe just give us a broader understanding of that.

Gregory Collins (27:48):

So Burke did defend the East India Company charter because he thought… Especially in this time, we have to remember that international trade was still a novel phenomenon, and so there was great risk in trading in foreign lands. If no other reason, that there’s great physical risk in trading these lands in which you held limited amount of knowledge and experience in trading in these different territories. So for Burke, he defended the East India Company Charter for the purpose of promoting the commercial interests of the British empire.

The problem for Burke, the East India Company in a series of victories in 1750 to 1760, including the Treaty of Allahabad, 1765, aggrandized the powers of the East India Company so that now they did not simply hold a commercial power to trade in India, but also, they acquired the powers of war and peace, revenue collection, public administration. And for Burke, this was a disastrous step that fueled the expansion of arbitrary power from the East Indian Company and exacerbated by Warren Hastings. For Burke, the East Indian Company now was not simply promoting the commercial interests of the British Empire, but they start to intrude on and regulate and dictate the flow of goods within internal Indian markets.

And as they describe in the book, the company ended up establishing monopolies on these Indian markets, which for Burke, read the typical negative disastrous consequences of monopolies, such as price controls, wage controls, the disruption of supply and demand laws, which allowed businesses to reach more participants in an efficient manner. And for Burke, this was representative of the gross maladministration and misconduct of the East India Company. So for Burke, when he seeks the reform of the company in 1783, he does not argue to end the Company Charter. This was actually a different that Adam Smith.

Burke also supported what we typically today consider to be free trade, free trade between England and Ireland, free trade between England and the Americans. Americans and the Caribbean British traders as well. So as I try to explain the book, Burke supported free trade within this context under this imperial British umbrella that was governed by the Navigation Acts.

What he does argue is that it’s harder to recover its initial commercial purpose of trading for commercial aims in India while gradually loosening its control over local Indian markets and it was also being held accountable with the board in London. And for Burke, this would allow the East Indian Company to recover its commercial integrity while also relieving the Indians of the miseries that were encouraged by the company. And this is also reflected as part of imperial, political and economic thought, that the Brits… there has been running a debate about whether Burke was a defender of empire or was a critic of empire. And many of the argument is between them on both sides.

But this still represented Burke’s broad imperial, political and economic thought, that the British Empire did have a right in his judgment, due to a series of treaties and military victories with local rulers, to remain in India. But they also had the moral responsibility to act with the devil at hand, and therefore, preserve the internal liberties, customs and traditions of the Indian people. And for him, the East Indian Company disrupted these traditions by extending its power of the local Indian communities. I will say that he wrote a number of reports on the political economy of India. I mentioned I discussed one report at length in the book called the Ninth Report of Select Committee. This in many ways was even more of a passive objective analysis of the economic implications of the East India Company in India. This was written for public consumption, it has more of a neutral tone than the sort of the passionate pros of Thoughts and Details of Scarcity

Richard Reinsch (31:05):

It seems there are similarities when it comes to the empire and how the mother country relates to the colonies. You write at length about North America and Britain’s possessions and the West Indies or the Caribbean. And Burke at length seems to be defending something like free trade. He’s defending it for… He says, “This will be good for us. It’ll be good for the colonies. It will help them to continue on their course of growth. And so we should loosen restrictions on their trade.” While at the same time, he does favor the Navigation Acts, which you can enlighten us on that.

Gregory Collins (31:41):

Yeah.

Richard Reinsch (31:41):

In my understanding, it requires them at least to sell first to the mother country and to receive goods from England also. And then also when it comes down to the great debate for American independence, he defends the right of the empire to regulate internal affairs of the North American colonies, but says, “You really shouldn’t do it. Not that often, not without a clear overwhelming reason.” And he does that, I think, not from an ideological perspective, as you note, he does it because he thinks in the circumstance and the time, this is an approach that will yield the best results for everyone involved, including the empire.

Gregory Collins (32:22):

Yeah, absolutely. And first start off by saying that I start writing the book, and scholars, everyone, a lot of people today tend to read 20th and 20th century conceptions of free trade mercantilism, these classifications into prior time periods, when… In my research in this time period, these distinctions weren’t as rigid as we make them out to be today, which is why this question about whether Burke… Extend this the question to Adam Smith also. The extent to which they supported free trade versus mercantilist policies.

Take Burke for example, as you mentioned, he defended the Navigation Acts, which were considered the heart of mercantilism. They were the series of trade laws dating back to the 17th century, the modern law dating back to the 17th century that restricted the flow of goods within the British empire. And the goods had to be in an English man crews, English vessels, they had to go from English ports before going to foreign markets. And so this was a monopoly on the international colonial economy of the British Empire.

But Burke also supported what we typically today consider to be free trade, free trade between England and Ireland, free trade between England and the Americans. Americans and the Caribbean British traders as well. So as I try to explain the book, Burke supported free trade within this context under this imperial British umbrella that was governed by the Navigation Acts. So I’ll leave it to the reader the judge, to what extent does that mean he was a free trader versus a mercantilist. But his thoughts show that you could accommodate these two different strands of thought on trade policy during that time period, even Adam smith himself defended the Navigation Acts.

Richard Reinsch (33:55):

Yes, he did. That’s right.

Gregory Collins (33:56):

The older forms of Navigation Acts because it’s a famous line, “Defense is much more important than opulence.” And this actually captures Burke’s ways with regard to the Navigation Acts, that yes, in some ways they restricted the flow of commerce, but they also supported the national security interests of the British Empire. And, people don’t realize, they also promoted the commercial interests of the British Empire as well. If you have the Navigation Acts, then you are assured that the transport of commerce, transport of goods will be on ships that won’t attack you, as opposed to trading with ships of foreign enemies that may threaten the transfer of your goods and of your trade. And so there’s a national security interest. There’s also a commercial economic interest in the Navigation Acts as well. Now, for Smith, Burke also thought that the later iterations of the Navigation Acts were economically counterproductive.

Richard Reinsch (34:44):

Here towards the end of our time, Edmund Burke and Adam Smith or Edmund Burke and the Scottish Enlightenment, and the Scottish Enlightenment would say markets provide their own internal reasons for their continuation and will guide people to participate in them successfully, peaceably, prosperously, Edmund Burke disagreed with that. We have now moved forward from that period, from that debate. And that debate sort of continues. Who do you think was right?

Gregory Collins (35:13):

I’m sympathetic to Burke’s arguments. I will also say, however, that I think sometimes descriptions of the Scottish Enlightenment thinkers tend to read libertarianism, a little too much libertarianism, Smith himself praised the landed aristocracy in The Wealth of Nations.

Richard Reinsch (36:09):

Gregory, thank you so much for your time. Wish you the best of success with this book, Commerce and Manners and Edmund Burke’s Political Economy. This has been wonderful. Thank you.

Gregory Collins (36:18):

Great. Thank you very much.

The Law of Bioethics and the Human Person Jan 03, 2021

Richard Reinsch (00:04):

Today we’re talking with Carter Snead about his new book, What It Means to Be Human: The Case for the Body in Public Bioethics. Carter Snead is the director of the de Nicola Center for Ethics and Culture at Notre Dame University where he is also a professor of law and a teacher in the political science department. He is also a member of the Pontifical Academy for Life, the principal bioethics advisory board to Pope Francis.

Carter, we’re glad to have you on Liberty Law Talk for the first time.

Carter Snead (00:57):

No, it’s great to join you. I’m a big admirer.

Richard Reinsch (00:59):

Great. So what does it mean to be human, and why do you think public bioethics is getting the answer wrong?

Carter Snead (01:09):

Yeah, so the first claim of the book is a kind of methodological claim, and the argument that I make is the best way into understanding law and public policy is to ask the question of what vision of human identity and human flourishing is underwriting the law and the politics and the public policy?

The question of what it means to be human is a perennial question that has been debated and discussed ever since human beings became capable of self-reflection. But my argument is, and this may be counterintuitive to some folks, some people think of law and politics not only separate from normative questions, but separate from what I’m referring to in the book as anthropological questions, as the contested question of what it means to be and flourish as a human being.

But the argument in the book that I make is that because law, fundamentally, and is really only intelligible through the lens of its purpose, which is to promote the flourishing of persons and to protect persons, the law has to have an ex-ante assumption about what person is and what constitutes human flourishing. Otherwise, the law, there’d be no way to know if the law is doing what it’s supposed to be doing, there’d be no way to measure its successes, you have to have the metric of its purpose and the premises that underlie those purposes. And so my argument is that if you want to understand the law most richly, most deeply, that’s the question that you have to ask. And it’s especially true in the context of public bioethics, which deals with not only the question of what human flourishing is and what human beings are, but the boundary questions of who counts as a human being? Or who counts as a person rather, the question of who counts as a human being as a biological matter is an easier question, but the question of legal personhood and moral personhood is really the central question of bioethics.

And it becomes operationalized in law and policy when it enters the public domain, either through political branches or the judiciary. And so you’d ask, why does public bioethics get the question wrong?

Richard Reinsch (02:54):

And by the way, just wanted to say, I was pretty sure when I read the title, I knew what public bioethics is, but maybe just set forward that, too.

Carter Snead (03:01):

Yeah, absolutely. So bioethics as a field of scholarly inquiry emerged in the United States in the late ’60s, early ’70s, in reaction to a series of scandals, public scandals involving human subjects protections in Tuskegee, Alabama, and really all over the country, as documented by Henry Beecher in a article in the New England Journal of Medicine. And so as the field of inquiry, people sort of asking questions about how to think about the clinical relationship and doctors and patients and the ethical dimensions of that relationship, as well as the public policy questions associated with the governance of science, medicine and biotechnology. And when I say public bioethics, what I’m referring to is that area of law and policy, the governance of science, medicine, and biotechnology in the name of ethical goods, and that takes place at the level of the political branches. It takes place in legislatures at the state level and the US government, the federal level. Also takes place in the judiciary, the most prominent bioethics case and maybe the most prominent case of the modern era is Roe vs Wade, which set in motion a cascade of legal policy and ethical disputes over abortion. And so the distinction between bioethics as a field of inquiry and bioethics as public bioethics, is the latter relates to governance, it relates to actually the work of lawyers and judges, and lawmakers.

But the interesting thing that happened is, each case, Tuskegee, the Beecher studies, as well as the case involving the just-aborted newborns, the solution was rooted in a kind of vision of human flourishing and human identity that didn’t track the violations that they were responding to. That is to say, every single individual that was violated in those three instances, was not operating at the full range of human autonomy.

Richard Reinsch (04:17):

What has shaped public bioethics in America? Because you mean to uproot, or really challenge, the standard operating premises and legal assumptions and conclusions of this field, but what’s shaped it?

Carter Snead (04:30):

Yeah, so public bioethics as a field of law and public policy is reactive. I mean, a lot of law and policy is reactive, but it’s been reacting to scandals. And the first piece of legislation that relates to public bioethics was the National Research Act, which was adopted in the early 1970s, in reaction to these scandals that I just mentioned a moment ago. So there were these scandals of 22 human experiments, documented by Henry Beecher, which involved the most prominent and elite institutions in America, including the Federal government. Research protocols in which individuals, especially very vulnerable individuals, were treated in grossly abusive ways. We had children with intellectual disabilities and injected with hepatitis, we had elderly patients suffering from dementia injected with live cancer cells.

This was all done almost entirely without any mention of consent at all, and those narrow cases in which consent was secured by proxy, nothing of the material risks in these protocols were even mentioned. Tuskegee, the 40-year-study, natural history study of syphilis done by the Public Health Service, the US government in Macon County, Alabama, in which they systematically deceived poor African American sharecroppers about what they were doing. It’s been reported that they colluded with local health authorities to prevent them from having access to antibiotics, which became standard of care for syphilis in the mid 1940s. For 40 years, this went on.

Richard Reinsch (05:53):

Wow, that was incredible reading that in your book. And also they persuaded medical providers locally not to treat these men.

Carter Snead (06:00):

Yes, that’s exactly right.

Richard Reinsch (06:03):

It’s incredible.

Carter Snead (06:04):

It’s shocking. It’s a shocking scandal. It was a shameful abuse of an already vulnerable community in Alabama where I grew up, and then a third scandal that is actually less, and a lot of people have heard of Tuskegee, a lot of people have head of Beecher and his study.

Not many people have heard of the third scandal that set in motion American public bioethics, which is a scandal involving researchers from the United States who traveled to Scandinavia, probably with funding from NIH, although that’s not been definitively established, to perform experiments on babies that had just been aborted. And Scandinavia, they performed abortions by C-section, and they would remove the babies intact, and they would expire shortly thereafter. These doctors would go to Scandinavia, contract with the abortionists and the women who were involved and would perform kind of grotesque experiments on these imminently dying newborns who had just been aborted. And The Washington Post had three front page articles about it in the early 1970s, it was a huge scandal. In fact, the Kennedy family, Eunice Shriver, sister of Ted Kennedy and John F. Kennedy, was so upset by this that she reached out to her brother who convened hearings and her daughter, Maria Shriver, who everybody knows is the former First Lady of California and successful American journalist, organized a protest with the Catholic schools in the DC area to come to NIH to protest this research. And so, after a series of hearings, the National Research Act was passed which imposed a moratorium on this live fetal, live neonate research. They created the National Commission on Bioethics, and it was meant to be a kind of national response to these emergent ethical questions that had public policy dimensions.

But the interesting thing that happened is, each case, Tuskegee, the Beecher studies, as well as the case involving the just-aborted newborns, the solution was rooted in a kind of vision of human flourishing and human identity that didn’t track the violations that they were responding to. That is to say, every single individual that was violated in those three instances, was not operating at the full range of human autonomy. They were vulnerable, they were diminished, either by circumstances or by their physical condition, their cognitive impairments in the case of the Beecher studies, and the case of immaturity with respect to the babies that were being experimented after they had just been aborted.

The solution was to extend informed consent, which is rooted in the concept of autonomy and self-determination, as the primary bulwark against these kinds of abuses. But you don’t need to think about it for very long to realize that people who are not capable, either by virtue of circumstance or their cognitive impairments, of exercising free will to the extent that would be necessary to protect themselves through participating in an informed consent procedure. That’s not the right solution to the problem, and that, you can see immediately that the issues of vulnerability and embodiment that arise in these contexts and the asymmetry between the problem and the solution, the solution is suited for a population of able-minded, able-bodied people who are not subject to circumstances or conditions that impair their free will.

And so that kind of asymmetry plays out from the early 1970s to the present day, and in my book, I take the three vital conflicts of American public bioethics, the vital conflict of abortion, the vital conflicts relating to assisted reproduction, and then at the end of life, end-of-life decision making and assisted suicide. And what I try to through this analysis of the premises that underlie the law regarding human identity and human flourishing, I find that we have very much the same problem. The problem is the vision of the person that’s assumed by the law is one that doesn’t reflect or track the lived reality of the people who are endangered in those circumstances.

Richard Reinsch (09:51):

So talk about this, you set the standard, define the standard, call it embodiment versus expressive individualism. What is embodiment, and why should we follow that standard?

Carter Snead (10:06):

Yeah, so the simple insight, and it’s a simple insight and I think it’s an insight that’s easy to understand and easy to verify based in reflecting our own experiences, that we human beings are embodied. That is we don’t just have bodies, but we are bodies. That is we come into the world embodied, we experience ourselves as bodies, we experienced one another as bodies, we experience the natural world around us through and as our body. We’re living bodies, we’re dying bodies, we’re subject to the fact that our bodies are corruptible, the fact that we are dependent upon one another by virtue of our vulnerability as embodied beings.

We are mutually dependent and we’re subject to these natural limits. And from that reality, the law and policy and the way we relate to one another has to be informed by that reality of embodiment. Now, you take that vision of the human person that is taking the body seriously, and understanding that embodiment is an essential aspect of being a human being, and you contrast that with the anthropology of what Robert Bellah, social scientist who wrote the classic in 1985, Habits of the Heart, and then later philosopher Charles Taylor, and after a fashion philosopher Alistair McIntyre and Michael Sandel, and others refer to as expressive individualism. It’s a very different vision of what it means to be a human being. It’s a kind of abstraction, it conceives of a human being, primarily as a disembodied will.

What defines the human person is his or her will. And what constitutes human flourishing is the interrogation of the interior of the self, to discover one’s own unique, authentic, original, maybe transgressive truths, and then configure your life and your destiny according to what you discover inside yourself. You express it, and then you configure your life accordingly. And the fundamental unit of human reality is the individual, is the atomized individual will. And so the world is a world of individual atomized wills seeking to pursue their own hopes and dreams, and everything else is instrumental to that end. Relationships with other people, the natural world itself and fundamentally, also the body is an instrument to realizing the goals of the will. And within this framework, there are no unchosen obligations, there are no obligations that you didn’t agree to in advance. Everything is viewed through the lens of your projects and your purposes as you devise them through the internal interrogation of the depths of yourself.

in Paradise Lost, you have this amazing scene where Lucifer addresses the other fallen angels, denying their creaturely status before God and saying, “We have no recollection at all of being created. You tell us that we’re creatures that have obligations of creatures to their creator, but we don’t remember being creatures. We don’t remember any time when we weren’t operating at the height of our powers, when we weren’t self-determined, when we weren’t powerful and able to make our own way in the world.”

And Robert Bellah, when he did hundreds of interviews with Americans in the 1980s, found that this is a vision of human identity that is very common in the United States. And Charles Taylor traces the genealogy all the way back to Rousseau, who sort of transposed and reconfigured the human identity from a position that is defined by one’s role in a particular community, or society, or family, or civilization, to focusing on the inner voice as definitive and decisive regarding what one should do and be. And this took hold, not surprisingly, in artistic and literary communities and the romantic literary movement even before that. And you see artists who were reacting against the sort of linear, harmonious traditional standards of art, to try to plumb their own interior depths, to find their own originality and to project it, and not just to project it in their art, but to live it in their lives. And then somehow, in Bellah’s account, is through developments in psychology and Freudian psychotherapy and different corporate forms and different kinds of sociological changes. That notion of expressive individualism moved into the conventional communities and the conventional populations.

And then in the 1960s and ’70s, the sexual revolution sort of fixed on the proposition that human sexuality and sexual expression is a key element of expressive individualism, a key element of defining oneself. And it’s not surprising that around that very same time, we see this emergence of public bioethical questions involving abortion, assisted reproduction, end-of-life decision making that largely track that same anthropology.

Richard Reinsch (14:07):

And just thinking about these three very controversial areas, expressive individualism would seem to have a hard time with the unborn and saying, “Why are they worthy of legal protection?” Anyone who is not sort of fully active and able, mentally and physically, but it extends out to children even, to infants, to the elderly. A lot of people come under that standard, that purview. So I guess in a way you’ve deified the individual or you’ve made the individual sovereign under this standard.

Carter Snead (14:43):

Yeah. No, that’s exactly right. I mean, it’s not just that one doesn’t recognize his or her obligations to children, the elderly and the disabled, one can’t even give an intelligible account of what they are. They remind you of Bertrand de Jouvenel’s comment about certain social contract theorists, that they’re like childless men who forgot that they were children. And even before that, obviously, in Milton, in Paradise Lost, you have this amazing scene where Lucifer addresses the other fallen angels, denying their creaturely status before God and saying, “We have no recollection at all of being created. You tell us that we’re creatures that have obligations of creatures to their creator, but we don’t remember being creatures. We don’t remember any time when we weren’t operating at the height of our powers, when we weren’t self-determined, when we weren’t powerful and able to make our own way in the world.”

It’s a kind of anthem of expressive individualism, and it’s not unlike the passage from Anthony Kennedy in Planned Parenthood versus Casey, when he talks about what’s essential to the kind of liberty that he is espousing, that includes the right to abortion, is the liberty to define for oneself, the mystery of life, the universe and to follow one’s spiritual imperatives unmolested by others or the law.

Richard Reinsch (15:56):

Yeah. Now, expressive individualism, I would argue, is sort of a heretical thinking here within liberalism. I don’t think liberalism is doomed to end up there.

Carter Snead (16:07):

I agree.

Richard Reinsch (16:07):

And it’s not necessarily the case that it, as a certain scholar at your school would argue, that this is sort of an inevitable outcome of liberalism in America, I don’t think that is the case.

Carter Snead (16:17):

I can’t imagine who you’re talking about.

Richard Reinsch (16:18):

I can’t either, but here we are. And it did emerge, freedom as will, I think is what you’re articulating here, and this sort of deified person. And by the way, I mean, that notion goes back, I mean, to the transcendentalists, early 19th century America.

Carter Snead (16:33):

Oh yeah.

Richard Reinsch (16:33):

I mean, the famous Harvard “Divinity School Address.”

Carter Snead (16:37):

Yeah.

Richard Reinsch (16:38):

Which has sort of looked into your own self for your truth.

Carter Snead (16:41):

That God is in every man.

Richard Reinsch (16:42):

God is in every man. So in that regard, I understand it, but I guess… So the public bioethics emerges in the 1960s, and clearly something does change throughout every western country in this time frame, as the West sort of, I would argue, sort of gives up on some things and tries to latch on to new things to understand itself. You have a quote in there, and I think it’s also key, and it’s from Walker Percy and I love the quote. Everyone has an anthropology. Everyone has an anthropology, yours is embodiment, that we have to understand ourselves in relationship to others, and to other people, and the gifts that we owe them. So what happens… I mean, I think we know very well, I mean, our entire world as Americans is dominated with this idea of expressive individualism. I mean, have you thought about, well, what would it look like if your idea, if your anthropology came into play?

Carter Snead (17:31):

Yeah. In the book, I make the point that expressive individualism is not utterly false, right? It’s a kind of distortion and a deeply incomplete account of who and what we are. It is true that we are individuated, right? We are individuals. It’s also true that we’re free. And those are important things, and it’s even true that the interrogation of the depths of one’s self can be valuable to try to discover certain kinds of truths and certain kinds of ways of being that, in some cases are correctly transgressive of repressive norms and wrongheaded standards in our culture, in our society and our tradition. But that’s not the whole truth, you run into trouble when you think that’s the whole truth about what we are.

I talk about augmenting the anthropology of expressive individualism with an anthropology of embodiment, which is to say, we have to also embrace the proposition that we are, as embodied beings, vulnerable, dependent and subject to natural limits, which situate just in relation to other people that bring with it certain kinds of unearned privileges and unchosen obligation. And in order to bring about a culture, a society, a legal framework that takes that seriously, we have to look to what Alasdair MacIntyre calls the networks of uncalculated giving and graceful receiving which are essential for the flourishing of embodied beings. You have to have these things. You have to have a world, you have to have a society and a community in which there are people who make the goods of others their own goods, without expectation, without a contract, without a transaction, without thinking, what am I going to get out of this? That they’re actually making another person’s good, their own good.

And we all depend on that, literally, for our survival when we come into the world, and at that those moments in our life when we become heavily dependent, and for sure, for everybody, as our life is nearing its end, when we’re completely dependent on others. You have to have these networks in place. And in order to preserve these networks, you have to have a people that are willing to practice the virtues of what MacIntyre calls the virtues of acknowledged dependence. That includes the virtues of uncalculated giving and graceful receiving. The virtues of uncalculated giving are things like just generosity, hospitality, what he calls misericordia, which is the virtue of accompanying other people in their suffering, as well as gratitude. The idea that you have to be grateful for the fact, that need to practice gratitude. You have to be open to the unbidden, you have to be tolerant of imperfection, you have to be humble, you have to respect the dignity of others, you have to be honest.

And these are all the virtues of authentic friendship, rightly understood in their kind of Aristotelian sense, leavened by, as my good friend Yuval Levin reminds us, by the proposition that all human beings are created equal, something that Aristotle didn’t quite understand or agree with. And to have a community, to have a civilization that takes the body seriously, the civilization that cultivates those virtues, that supports those networks, and the law as we all know, can play a role, has a wide array of very granular mechanisms, including just leaving people alone and giving them space for private ordering to allow them to create communities that take care of folks in those ways without interfering. But in those instances where that help and care is not forthcoming, then sometimes the law does have to intervene to protect people. And so a society that takes seriously, a community, a legal culture that takes seriously embodiment, is one that is committed to shoring up, protecting and advancing networks of uncalculated giving and ungrateful receiving and helping people. And helping can sometimes just mean leaving people to private order to cultivate those virtues and practice them.

Richard Reinsch (21:08):

You have three areas here where you sort of set forward how embodiment would change current law, current practices around abortion, assisted reproduction, and death and dying. Kind of off the wall thought here, I don’t know what you think of this. Since we’ve been living expressive individualism for a while, I had a thought. Is identity politics sort of the dialectical outcome of expressive individualism? Because what I was thinking is, there’s a point at which people realize that this is sort of empty. It sort of implies the sovereignty component sort of drops off at a certain point, and you actually want to recreate community. You actually do want to recreate some sort of dependency, some sort of meaning, order, something that has value and status. And that’s igniting identity politics in a certain way. It’s an attempt to recreate community apart from this sovereign self that we’ve been living with now for several generations. Have you thought about that?

Carter Snead (22:11):

Yeah. No, I think that’s a really interesting idea. I mean, Bellah and others say that one of the problems with expressive individualism, and Peter Lawler said the same thing, is that it is disorienting. The radical freedom of expressive individualism is so disorienting, because we can’t understand ourselves if we are a blank slate. We don’t know who we are, what we’re supposed to do. Alistair McIntyre says, I don’t know what to do unless I understand the stories of which I’m a part. So without a narrative, I don’t understand what I’m supposed to do. And so when people are said, “Okay, you’re completely free. Free of tradition, free of family, free of social roles, free of any obligations to your children or your elders, or anybody. Go for it, whatever you want to be, you be that thing.” That’s a kind of disorienting and terrifying and inhuman state to live in, because we are relational.

We are social animals. And people start to feel anxiety, and they start to feel disoriented and dislocated, and it makes perfect sense that people will want to cling to community, to roles. And this kind of tribalism that we’re seeing reflected in identity politics, as you just pointed out, it could very well be a reaction to that. The other thing that people have observed is that when you are expressive individualism, the dislocation, the kind of nakedness of the expressive individualism makes people susceptible to tyranny. It makes them easier to dominate. It makes them easier to fold into tribes and to organize and to mobilize, precisely because humans have that need to be part of something, to understand themselves in a larger narrative. The problem for identity politics, it seems to me, is it doesn’t have the resources to actually defend membership in-group if membership is simply a matter of what I choose to identify myself as.

Richard Reinsch (23:52):

I think the membership is formed by the ability to hurl accusations against the transgressor.

Carter Snead (23:59):

Right, certainly, that’s the way to distract people.

Richard Reinsch (24:01):

Yeah, in this case right now it’s the white, male, heterosexual, but some sort of scapegoat. So that’s the unity which unites a lot of these different identities together. You look around too, there’s nothing really inside me worth value, but there are these dominant opinions that I can attach myself to. And identity politics tells you who’s wrong, who’s right, what the future can mean if we have power, and what we should do with it. And say, like Ibram Kendi, the goal was totally equitable racial outcomes, which is sort of its own element of perfection that we can never achieve, but we’re always striving for it, but a lot of people will suffer along the way. So yeah, as I thought about that, it seems to me this, and it’s radically identified with people in their 20s, or seem to. These are clearly highly educated white college students, and I’ve thought as I was reading your book, maybe they just know that this is over.

Carter Snead (24:53):

Right. Yeah, no. It’s interesting. I mean, it’s an unstable haven, though, it seems to me, because the rules for identity politics and who’s in and who’s out seem to be constantly shifting. And as a strategy, if you’re genuinely not a member of a discrete and insular minority that has a history of abuse and mistreatment and you’re simply an ally, you’re never quite stable. The only way that you can secure your place is to be a constant critic of others. You see this on college campuses. I used to know kids when I finished high school and a lot of my friends… I went to St. John’s College in Annapolis, which is a weird little college, and it was blessedly free of politics. People had no idea what was going on, people didn’t read newspapers or watch TV. It was just it was kind of a weird little bubble, which was great. But we grew up in Birmingham, went to public school. My friends who went to places like Wesleyan, Smith College and Amherst and those kinds of places, Cornell, Vassar, they came back at Christmas break-

Richard Reinsch (25:49):

Different.

Carter Snead (25:49):

Like they were intoxicated by all the new information, all the identity, all this stuff. And the current moment in American politics feels like we’re being governed by the RAs and the hall staff of Wesleyan College. Feels like the same kind of intensity and anxiety that accompanies that setting, has made it to… And maybe just because people have grown up and now they’re in charge, but my friends would, first of all be intoxicated by all the new ideas, but then there was this extraordinary anxiety of how do I situate myself in this narrative of oppressor or oppressed, where I’m not the enemy? And it was a constant struggle to figure out how to define themselves within that narrative, to where they’re on the right side of history, they’re on the right side of the conflict. And a lot of them had nervous breakdowns, a lot of them just became completely freaked out. People would vandalize their own dorm room doors with epithets that they could then claim victimhood status. These are mostly wealthy white kids in Birmingham, Alabama. And that kind of anxiety is something that I feel like… I mean, again, Twitter is not real life, but if you go on to Twitter, it doesn’t feel that different to me.

Richard Reinsch (26:52):

Thanks for indulging me on that. It does seem that the way I’m reading the transgender community that that notion of altering your body, surgically altering your body to make yourself into a new gender, that that is right out of expressive individualism and right out of an anthropology that you’ve defined here.

Carter Snead (27:15):

Yeah, I mean, you see it in the transhumanist community in a very dramatic way also. These are very successful, high tech entrepreneurs in the Silicon Valley, and it’s a religion, I mean, there’s no way around it. Being a transhumanist is a religious commitment, and these are folks that want to download their consciousness into some kind of mechanized apparatus, they think of the body as a death sentence, they think of the body as a prison, they want to transcend the body through technology and through psychopharmacology. They really see it as a blank slate, and their mission is to leave the body behind. They really do want to get rid of it. They think of embodiment as a curse, as a general matter. And that is as pure an expression of expressive individualism as you can imagine, but anybody whose will doesn’t correspond to their body and wants to change their body to conform to their will, is, again, as you point out, a reflection of a kind of expressive individualism.

Richard Reinsch (28:09):

Yeah, and I think behind that, too, is when I get this new body, I’ll be a new person. I think that’s also the implicit assumption. I’ll be a new person in the sense of I’ll have a new lease on happiness, which is also a part of this mindset. Question for you, the embodied disembodiedness, how would that change medical research? Have you thought about that? One critique is medical research moves very slow in this country because of bureaucracy and the development of new drugs, but how would experimentation happen?

Carter Snead (28:39):

There are different levels in which one could think about that question. I mean, if you think about the purposes of medical research, and how that might change if we really took seriously the vulnerability, mutual dependence and natural limits that are necessary entailments of an embodied community and people who are embodied selves, who encounter one another as bodies, you would be focusing more on those kinds of research projects that are aimed at responding to vulnerable others rather than trying to free people from their bodies or to help them to transcend their bodies through, and this is the old therapy versus enhancement, distinction and debate. How do you define… I mean, the purpose of medicine is to be in service of health, right?

And the nettlesome question, of course, which we dealt with in the President’s Council on Bioethics, back when I served with general counsel, Leon Kass, is how do we define health? Do we define health according to a baseline of normal flourishing or is health a function of desire? Is health a function of the subjective wishes of the person involved? And medical research is driven by markets obviously, and markets are driven by preferences. And if an entire culture or a segment of the culture that’s most wealthy, that are going to drive the revenues for drug companies and medical device companies, are focused on these interventions that are more in service of desire than they are to restoring persons to natural functioning, that could be something that would change if there was a shift in the direction of taking the body seriously.

And defining health in light of bodily flourishing is different than defining health in light of the wills and desires of a subjective individual. As far as research protections go, I think we would be more thoughtful about the principles that we use to craft protections for human subjects of research. I mean, human subjects, for those of you listeners who don’t follow these things closely, research involving human subjects is in fact a transaction in which a researcher is intentionally instrumentalizing a human being as an object for purposes of obtaining generalizable knowledge. That sounds like a bad thing. That was one of the initial sort of nesting places from which bioethics emerged.

How do we fix the potential for exploitation of human subjects in this context? Because the purpose of the researcher is not to help the human subject, that’s not the point, the point of the exercise is to obtain generalizable knowledge. If I oversee a clinical trial in which people get sick or get injured by the testing of a drug, that’s a successful trial. It’s not successful in terms of bringing that drug to market, but it’s successful in the sense that it’s obtained generalizable knowledge. We now know this drug is dangerous. And that’s good, it’s good that we learned that, unlike the clinical setting, where the doctor and the patient have the exact same purpose, that is to heal the patient or to ameliorate his or her symptoms. The interests of a person who enrolls in A clinical trial as a human subject, is the hope that A, you’re not in the control group, you’re in the group that gets the drug, and B, that the drug works and that you get some benefit from it. But that’s not the point of the protocol. I’m sure the researchers hope the same thing, they hope that the drug works, but that’s not their purpose.

So the way we’ve tried to salvage that circumstance of instrumentalization and potential exploitation is through the principle of informed consent. They say, “Well, we can transform this relationship of instrumentalization into one of collaboration where the subject agrees, makes a knowing, intelligent and voluntary agreement to participate, understanding the risks involved and the possibility they might not even get the drug that’s being tested. We try to save the situation that way.” But even with able-minded people, there’s risks of what’s called the therapeutic misconception, where people, because they’re so desperate and they want to be benefited by the drug so much that they actually convinced themselves that the researchers are their doctors. And in some cases, the researchers are their doctors, and they’re just operating in a different role, which makes it even more risky.

You have people being euthanized because… They don’t even have clinical depression, they’re just tired of living, so put that to the side. You have kids who have spina bifida and it’s treatable, and is not a fatal condition, and in fact, the fact that it’s not a fatal condition is treated by the authorities in these countries as an argument in favor of euthanasia, because their metric of suffering, because they’re not imminently dying, they’re not dying at all, is greater because they’re gonna have more years of suffering than a person who is dying in six months.

But forget that situation, imagine a scenario which the crucible from which public bioethics emerged in the first case, where human subjects are of a certain kind that don’t have the capacity for consent or they don’t have the full capacity for consent, because they’re unborn babies, because they are suffering from dementia, because they are intellectually impaired in some way, cognitively impaired in some way. That, if we took the body seriously, we would ask ourselves the question of how do we develop a framework for research ethics and protections that focuses on that population? They’re kind of an afterthought in our framework for human subjects protections. We focus on the able-minded people who can sign a consent form. And there are risks involved with those folks, and then we sort of say, “Well, for those other groups, we should act in their best interest and subject them to minimal risks.” And there are different concepts that people use, but it feels to me under-theorized. And I think that we could do a better job of reconstructing medical research in a way to think through how do we involve those folks in our research? Which we want to do, because that research benefits those populations without subjecting them to exploitation and abuse.

Richard Reinsch (33:36):

Okay, we’ll go to your heart issues here. Controversial questions, death and dying. Embodiedness, I presume, would be counter to the push for euthanasia throughout Europe, where it’s legal, where they even have suicide centers in Switzerland, I’ve read about these places where you go. But you would emphasize, I presume, the care and what comes about through walking with people through the late stages of life without killing them or creating this opportunity for them to kill themselves if they want to.

Carter Snead (34:10):

Yeah, no. That’s exactly my position. And my critique of… I focus on the American landscape in the book, although in the European situation it’s more advanced and more problematic.

Richard Reinsch (34:19):

But the Belgium situation seems to be it’s going beyond just consent, actively killing people.

Carter Snead (34:24):

That’s right. I mean, in Europe, we have circumstances where, in the name of compassion, we are seeking to euthanize, directly kill children who are not capable of even participating in an informed consent process. And it’s an injustice that these children can’t be dispatched, and the amazing thing is, you’ve got cases where spina bifida… And putting aside the psychological circumstances, you have people being euthanized for autism in certain parts of the world. You have people being euthanized because… They don’t even have clinical depression, they’re just tired of living, so put that to the side. You have kids who have spina bifida and it’s treatable, and is not a fatal condition, and in fact, the fact that it’s not a fatal condition is treated by the authorities in these countries as an argument in favor of euthanasia, because their metric of suffering, because they’re not imminently dying, they’re not dying at all, is greater because they’re gonna have more years of suffering than a person who is dying in six months. And it moves very, very quickly.

Once euthanasia is under discussion, talk about directed killing, nobody wants to commit suicide anymore themselves. They want to get an injection from their physician or whomever is going to dispatch them. And as you point out, we’re not just talking about voluntary euthanasia, we’re talking about non-voluntary euthanasia, meaning no request on behalf of the person who’s being euthanized to euthanize that person. And there are even reports of involuntary euthanasia, that is euthanasia over someone’s objections, or over the objections of someone’s parents. There’s the most famous example from a nun who said that she didn’t want to be euthanized, and I think this was in the Netherlands, it was written up in Herbert Hendin’s book, and I think Neil Gorsuch covered it in his book too, who said, “I don’t want to be euthanized.” But she was euthanized over her objections on the grounds that because she was religious, her grounds for opposing euthanasia were not rational.

Richard Reinsch (36:11):

That’s incredible.

Carter Snead (36:12):

That’s a sobering thing, but here in the United States, we’re not quite as advanced down that pathway. But the fundamental critique that I make is that both in the context of the law of end-of-life decision making, where we’re talking about the decision to discontinue life-sustaining measures, as well as assisted suicide in those 10, 11, 12 jurisdictions of the United States and allow assisted suicide. The problem again, is an anthropological problem, because in crafting the law of assisted suicide, and even to a certain extent crafting some of the laws connected to discontinuing life-sustaining measures, the underlying assumption about personhood and flourishing is this expressive individualism concept that human beings flourish when they are free, autonomous choosers, radically individuated and atomized, and the highest flourishing is the assertion of their unencumbered selves.

But that is not an accurate description, because of embodiment, and because of the impact embodiment has on a person as they’re dying, or even when they’re just very ill, or depressed, or what have you. That’s not an accurate sociological description of what it means to be sick. When a person is sick, and when a person is dependent upon life-sustaining measures, especially a person who has lost the capacity for cognitive decision-making, and that’s the example I talk about in the book regarding discontinuation of life-sustaining measures, people who are not capable of participating in decisions about their own care in the moment, because they’ve lost the capacity for making those choices. And in terms of assisted suicide, that’s not a fair description of who commits suicide and what a person needs under those circumstances.

The social science evidence is very clear, the vast majority of people who have suicidal ideation are suffering from treatable depression. That’s not an autonomous person, that’s not a person who’s operating at the height of their powers. A person who is unconscious and can’t make decisions on their own behalf is not an autonomous person, so why would you look to the anthropology of expressive individualism to craft remedies, the right to be left alone, the right to kill yourself, as the legal response to that human context? It’s a category mistake. Just take a generic case of a person going to the doctor because they’re sick. You don’t go to the doctor to assert your unencumbered will. You go to the doctor because you’re sick and you don’t know what to do and you want someone who has your best interest at heart to take care of you.

Richard Reinsch (38:26):

Yeah, I suppose too, here, it’s why does euthanasia moves so fast once it settles in, in law? And then, from what I’ve read, it’s they have this garden variety case. It’s your 90-year-old, terminally ill patient who doesn’t want to suffer anymore, and that’s kind of what we’re told. But it rapidly moves beyond that context to now, like the Netherlands children. I think I’ve read teenagers. It’s sort of this underlying dynamic we’ve been discussing that the expressive individual can’t really make sense of these lives, and why want to live them.

Carter Snead (38:55):

And quality of life, which becomes the grounds for euthanasia, a life that is dependent and diminished has no quality through the lens of expressive individualism. The greatest thing you can do when you’re faced with a life of dependency and decline is to author the conclusion of your own story by the assertion of your unencumbered will to choose self-annihilation. Again, that’s not a fully human account of those circumstances. That’s not what those patients want or need in most instances. Now, there may be occasions, there may be instances in which a person of wholly sound mind is facing a painful terminal illness, refractory pain, and they want to commit suicide there or they want to decline life-sustaining measures.

And I’m sure there are circumstances like that, but when we construct law and public policy, we don’t just think about those exceptional cases, we ask the question of what happens to those vulnerable communities who are subject to fraud, abuse, duress and mistake? Those elderly communities, the disabled communities, those minority communities who are already vulnerable. And now we open up the laws, you say, to allow this pathway for assisted suicide or even euthanasia. And all of a sudden, you’ve endangered an entire population of vulnerable people for the benefit of some very privileged folks who are a small sliver of the community that wants this legal change. And I’m sympathetic to those folks who want to change the law in that way in some respects, but we can’t change the law when doing so is going to endanger those people on the margins of our communities because of their disability, their age or even their racial status.

Which is why, interestingly, in the debates in America over things like Terri Schiavo, you may remember. And Terri Schiavo in 2005, the dispute over life-sustaining measures for a woman in persistent vegetative state in Florida. There was a massive expression of support on the part of the African American community and the Congressional Black Caucus in Congress. Jesse Jackson and others went down to Florida to argue against the doctors discontinuing her life-sustaining measures, joining Ralph Nader, by the way, Joe Lieberman, Tom Harkin, disability rights advocates. People forget that, they think it’s like a right wing, left wing, religious/secular thing. It’s not. There are actually communities, the disability rights community, even the American Medical Association, to their great credit, oppose assisted suicide, because they see system-wide consequences of opening that up as a pathway. And that’s, by the way, a huge distinction between the United States and Europe. In Europe, the physician professional societies support assisted suicide and euthanasia. In the United States, they don’t, and that’s the reason we have not gone, I think.

The main reason we haven’t gone in the direction, and you see in those states like California, where the local chapters of the AMA, like the California Medical Association, what they do is they declare a position of neutrality towards the state law proposed on assisted suicide, and then it passes. But in states like Massachusetts, in 2012, when they had the referendum, the Massachusetts Medical Association said, “No, this is not medicine. This is not the role of a doctor.” Ezekiel Emanuel wrote an op-ed to that effect.

Richard Reinsch (41:52):

Yeah. Assisted reproduction, how would embodiment interact here?

Carter Snead (41:57):

The framing of the legal question, the anthropology that animates the law, operates at the level of framing and then at the level of execution. So in the book, I provide a couple of quotes to give you a sense… So ART is interesting, because unlike abortion, which has been basically constitutionalized by the Supreme Court, any major changes in the law of abortion in the United States would require the Supreme Court to depart from, change direction from the trajectory established by Roe v. Wade and Planned Parenthood versus Casey. Assisted reproductive technology not been constitutionalized, and so there is room for the political branches to legislate, but the reality is they haven’t done it. It’s basically a wide open wild west in the United States in this area, and other than the restrictions of licensure and certification for physicians and the law of medical malpractice, there’s basically no oversight of assisted reproductive technologies.

And so you what you end up seeing is, no limits on the number of embryos that can be conceived and transferred. You have multiple gestations and multiple pregnancies, although that number is going down, thankfully. You have routine practice of sex selection in IVF clinics, they call it family balancing, but that’s an overwhelmingly widely practiced technique, an adjunct to IVF. You’ve got growing industries of people that want to screen embryos before implantation, that is in-vitro embryos, for non-medical traits, traits that relate to height, or IQ, or eye color, or skin tone, or hair. This is a growth industry, and the law at the moment says nothing about that. And again, I’m not making a comment on the attitudes of people who seek fertility treatment at all, I don’t think that those people are seeking to express their unencumbered wills. I think those people just want to be parents, and they want help from reproductive endocrinologists and fertility care doctors to help them realize the dream of becoming parents. But the law isn’t animated by that impulse, because if it was, the law would be shaped in a way that would take seriously the category of parenthood.

It would take seriously the notion that you can’t be a parent without a child, and that every stage of the process, the goal should be conception and birth of a child who is welcomed and loved unconditionally by her parents. The law is constructed rather, without any guardrails, which reflects the views of John Robertson, who was a recently deceased law professor from University of Texas who was instrumental in crafting the legal landscape in the United States, both in his role as a law professor, but also in his role on the many advisory committees on which he served over his long and illustrious career. And his role as the head of the Ethics Committee for the American Society for Reproductive Medicine, which is the most powerful lobbying organization in the country.

And I begin chapter four on assisted reproduction with the quote that says, “Reproductive technologies are means to achieve or avoid the reproductive experiences that are central to personal conceptions of meaning and identity.” That’s the vision of human identity and flourishing that animates the total absence and vacuum of law in the United States regarding assisted reproductive technologies. And we had a guy named Dr. Gerry Schatten, who at the time was a very prominent scientist at the University of Pittsburgh. I’m not sure where he is now, but he was very prominent, heavily involved in reproductive technologies, and especially genetic screening of in-vitro embryos. And we asked them, we said, “Come give us a talk, come give us some testimony before the President’s Council on bioethics. We’re focusing on assisted reproduction, and tell us in one or two sentences what you think the purposes of reproductive medicine are. What is the point of this exercise?” And he had six weeks to think about it. And he came back, and he gave us this quote, and it’s really quite arresting. December 13th 2002. He said, “Reproductive medicine is helping prospective parents to realize their own dreams for a disease-free legacy.”

Now, both of those quotes are clear that they are privileging and prioritizing the desires and the will of individuals who are seeking a very deep form of expression that is realized through participation in these reproductive technologies. The word that’s missing from both of those quotes, is the word child, is the word son or daughter. And that, to me, is a kind of evidence for the proposition that the anthropology that underlies that ideology, the anthropology that then animates the complete vacuum of law in the United States, is one of expressive individualism. It’s the idea that the whole point of this is to find your truth, to express your truth, whether that means being a parent or not being a parent, and it utterly misses the human context of how human beings come into the world. They come into the world situated in relationship to other people, relationships, biological relationships, and those relationships have unearned privileges and unchosen obligations, and that’s completely invisible. The word child doesn’t even appear in those quotes.

Richard Reinsch (46:54):

And that would largely seem, to my mind, to kind of come out of the jurisprudence of abortion in America.

Carter Snead (47:01):

You’re right, and the jurisprudence of abortion in America has influenced every other aspect of public bioethics, not just because of the politics of abortion, although that’s a hugely important piece of the puzzle. I remember very clearly back in the early 2000s, going with the chairman of the President’s Council on Bioethics to meet a prominent senator, a man of the left, who had previously authored consumer protection laws relating to assisted reproduction. And we asked him directly, said, “well, are you willing to augment those laws to provide additional protections for patients, additional protections focused on the health of children who are conceived with IVF, and focusing on the women who go through this process?” And he was very blunt. He said, “I can’t join a coalition that includes Sam Brownback, who was a prominent pro-life advocate. He’s like, “That’s too politically risky for me, I can’t do it.” I was surprised by how blunt and candid he was in that meeting. And so there’s obviously a brute political reality, but the deeper issue is that the concepts of privacy and liberty and now, equality, if you think about the sense of Ruth Bader Ginsburg and the partial birth abortion cases as the normative rationale for abortion, those rationales are in fact themselves rooted in expressive individualism. And those rationales are invoked, because of that, in the context of assisted suicide, embryo research, and elsewhere.

So you had this thing called The Philosopher’s Brief. And Washington v. Glucksberg, and Vacco v. Quill, which were the two assisted suicide cases before the Supreme Court in the mid ’90s. When people argued, and unsuccessfully, in a 9-0 rebuke, the court held that there is no constitutional right to assisted suicide, either in the due process clause or in the equal protection clause. And there was a famous brief, called The Philosopher’s Brief that was filed by some of the most famous philosophers living at the time, John Rawls, Nozick, Scanlon, Judith Jarvis Thomson, Ronald Dworkin, they all… And people who disagree with each other on important questions, all signed a brief saying, “If you take Planned Parenthood versus Casey seriously, and if you take the mystery of life passage from Anthony Kennedy, and you think seriously about the autonomy, freedom and self-determination that the court has enshrined and entrenched in that decision, then this is an easy case. Obviously, you have the right to assisted suicide, if that rendering of liberty is the legally operative rendering of liberty. And it was humiliating for those brilliant philosophers who published their brief in the New York Review of Books also, because that view was rejected nine to nothing by the US Supreme Court, but it nevertheless shows how potent and durable and widespread this anthropology of expressive individualism is across public bioethical contexts.

Richard Reinsch (49:37):

I think that’s an interesting way to wrap up, Carter. I think that really ties all this into a nice bow, as we think about public bioethics. Carter Snead, thank you so much for discussing with us, your new book, What it Means to Be Human.

Carter Snead (49:53):

It’s my pleasure. Thanks for having me.

The Delusions of the Ideologue and the Wisdom of the Statesman: A Conversation with Greg Weiner Dec 21, 2020

Editor’s note: This podcast originally aired in May, 2019.

Greg Weiner, contributing editor to Law & Liberty, and Provost and Vice President for Academic Affairs at Assumption College, returns to Liberty Law Talk to discuss his latest book, Old Whigs: Burke, Lincoln & the Politics of Prudence.

The Economy after COVID-19 Dec 10, 2020

Richard Reinsch (00:18):

Welcome to Liberty Law Talk, I’m Richard Reinsch. Today we’re talking with Arnold Kling about the post-COVID economy. Arnold Kling is an economist. He’s a scholar and he’s a writer, frequent public commentator on policy issues, which he approaches from an economics perspective. He writes frequently for EconLog, a sister website to Law & Liberty. He also contributes to Law & Liberty from time to time, usually on issues related to macroeconomics. He’s the author of numerous books, including The Three Languages of Politics: Talking Across The Political Divides, Specialization and Trade: A Re-Introduction to Economics and also Unchecked and Unbalanced. Arnold, this essay that we’re going to discuss, and I’m glad to have you on Liberty Law Talk, this essay appeared in the summer edition of National Affairs and is a sort of an exploration of our economy during this COVID-19 pandemic and how the government is trying to interact with it. Maybe talk more about the themes you explore there.

Arnold Kling (01:22):

One theme is that I feel that the general macroeconomic paradigm has been breaking down for a while and it’s particularly not useful for this situation. There’s a ton of confusion out there about what’s going on. We can get into sort of what that paradigm is.

Richard Reinsch (01:40):

Before that though, so we got a number back yesterday, 33% GDP growth in the third quarter. Second quarter GDP had declined by, I’ve got 31.4%. What do you make of those numbers?

Arnold Kling (01:56):

Not much, actually. Either one, because GDP is most reliable when the nature of the economy is pretty stable and the economy is very different in this COVID environment. So if you’re trying to measure output, what you’re trying to do is add together sort of apples and oranges. And if the relative value of apples and oranges changes, then that addition process doesn’t really work so well. And that’s what’s happened, is that a lot of the so-called lost output, that means the decline in GDP, is stuff that all of a sudden people decide they don’t want. Like they don’t want to take their airplane vacations, stay in hotels. They don’t want to go to conferences. They don’t want to go to big sporting events.

Even if the fears of the virus went away tomorrow, people have learned to do a lot of things differently. I think most people who have the luxury of working from home would not want to go back to commuting five days a week. I bet there will never be as many business conferences as there were a year ago.

So to value that output at yesterday’s prices and say, well, it’s lost, I think it isn’t correct. And the output that’s regained, kind of a different story, that may be more or less valuable depending on the nature of that. So anyway, GDP is a tough measure. Like you’re trying to add together the value of healthcare services and manufacturing of nails and pins. It’s a difficult measure. So what I prefer to track, see how well the economy is doing overall is employment. And year over year from September to September employment is down by 10 million or about six or 7%. So that to me is an indicator of sort of how off the economy is and that’s pretty far off. That’s a major year over year decline. So rather than try to figure out what’s going on with the GDP numbers, I would use the employment numbers. I would say that the economy has really been thrown off. We have 6%, 7% fewer people working than you did a year ago.

Richard Reinsch (04:07):

And that kind of gets into your essay. One you talk about macroeconomic dominant paradigm. Right now you don’t think is very useful. And this can be a way to think about how the economy will evolve after the pandemic. So maybe talk more about that.

Arnold Kling (04:25):

Yeah. So the dominant view is to treat the whole economy as if it were a single factory, I call it the GDP factory where everyone’s producing the same thing and all of a sudden demand falls off for what our single factory produces. And then the factory hires fewer workers. That’s greatly intuitive. It’s a very intuitive picture, but it’s wrong. It’s just wrong. But the challenge with the economy isn’t getting enough demand for what the factory produces. The challenge is to allocate people properly. So you can think of a situation where you have a thousand people and you don’t know really what they’re good at and who’s best at things and which things are valued. How would you allocate them? How you decide who becomes a garbage collector, who becomes an entertainer, who becomes a farmer.

The economy challenge is to figure that out. And when the economy is unstable for a while, people mostly have that figured out. Millions of people actually change jobs every month because the economy is constantly reconfiguring in response to changes in technology, other factors. So my view of what happens in a downturn is that in concept, the economy gets confused, it gets mixed up. I think of it as a Rubik’s cube where the pieces have been really shuffled and it’s going take a long time to get them back into the place.

Richard Reinsch (06:00):

What kind of a crisis do you think COVID poses to the economy, comparative to say the 2008 financial crisis, so to speak?

Arnold Kling (06:07):

The 2008 financial crisis, first of all, it’s very concentrated in the financial sector. And the economy, I think, is still in the situation where everyone is trying to run with minimal cash reserves as possible. So people wanted to buy a house with no money down, firms were heavily indebted and so you have this very fragile financial situation and then a relatively minor crisis in the broad scheme of things and the real estate industry just cascaded through because people shouldn’t have, not so much people, but businesses and especially banks didn’t have the kind of cash reserves to get through a crisis. So that’s a very different situation. People were not caught so much short of financial reserves. Although businesses, especially small businesses, could have been in better shape. But there was just a change in what people wanted to do. People did not want to be eating in restaurants next to people who might be sick. They didn’t want to go and undertake business travel. They didn’t want to go into the office. And if they didn’t go into the office, they didn’t go out to lunch near the office. So all these activities had to change.

The current situation is so extreme in terms of the reconfigurations that are needed, that you need just an awful lot of entrepreneurial activity, and it’s going to take a long time for entrepreneurs to figure out how to use these extra 10 million or so people.

So it’s like the Rubik’s cube got really messed up and it’s going to take a long time and a lot of turns of the cube to get it back in shape. And another complication is that you don’t know how much of that is short-term and how much that is long-term. And then if the fears of the virus went away tomorrow, a lot of these activities would come back. But even if the fears of the virus went away tomorrow, people have learned to do a lot of things differently. I think most people who have the luxury of working from home would not want to go back to commuting five days a week. Maybe two days a week, maybe three, I bet there will never be as many business conferences as there were a year ago. It’ll just be, “Oh, we don’t really need to have this conference.”

Richard Reinsch (08:21):

What do you make of habitation patterns? I mean, you’ve read a number of sort of anecdotal pieces. I’ve had read in The Wall Street Journal of people leaving high cost locales like San Francisco and decamping to Utah and they’re still working there. Their company is still based in Silicon Valley, but they’re now working from Utah, much lower cost of living, et cetera. Do you see that as really a huge change to the urban landscape in America?

Arnold Kling (08:47):

Potentially yes. But we don’t know how much that will be. I mean, people are arguing back and forth. Some business executives say working remotely doesn’t work well. Other people say it does. I think the typical worker is probably pretty happy to not be commuting and so on. Not have to deal with that. So some of these changes could be changes that would have happened anyway, that have just celebrated by… I mean, everyone just, they’re building what I call remote work capital. People learning to use Zoom and those kinds of tools. There’s a combination of short-term changes and long-term changes. And so we talked about the GDP number which showed a sharp decline that included a lot of short-term changes. And then the bounce back with some of the reversals of those severe short-term changes. But there’s still a lot of long-term changes that are going to be worked through. I mean, do we think that higher education is going to revert back to what it was a year ago? I suspect not.

Richard Reinsch (09:53):

Yeah. I was just going to say, you in the National Affairs essay, you talk about the way unemployment just lingered at pretty high levels after the financial crisis in 2008 and didn’t really come down until maybe seven or eight years later. And that’s sort of maybe a way to think about the patterns of specialization that you discuss. But then do you see something like that happening with sort of the post-COVID economy that unemployment remains at seven, 8% as we figure out this stuff?

Arnold Kling (10:22):

The question is, how do we understand what’s going on? I think it was misunderstood in 2008. Now with this old paradigm of the GDP factory. If we just somehow put enough money in people’s pockets, they’ll go to the factory and everything will be fine. Whereas it’s really a problem of figuring out where people fit in, in reconfiguring the economy. In a way it’s odd that it took so long to reconfigure the economy in 2008, or is it that things got so bad. But I think again, it was because banks and businesses were operating on very thin margins. And so a lot of people went under that wouldn’t have had to if they’d had more reserves. And also the policies that were followed were again, based on the assumption of GDP factory, if anything, what you need, in my opinion, when the economies get shaken up in this way, there’s a lot of entrepreneurial activity because people need to start new businesses and figure out new projects that employ people.

What’s the best use for the people who are not working. Are there 10 million people who were working a year ago who are not working today? I mean, it’s actually, there are many different people, many people got in jobs who didn’t have them before many people lost jobs, but did have them, but on net 10 million people not working. That’s an entrepreneurial opportunity to find something useful for them to do. But that means you have to encourage entrepreneurship. And under the Obama administration, you had discouraging entrepreneurship because they kept piling on regulation. And one of the quiet things that the Trump administration has done is to loosen those regulations so that entrepreneurs could work more quickly. But the current situation is so extreme in terms of the reconfigurations that are needed, that you need just an awful lot of entrepreneurial activity, and it’s going to take a long time for entrepreneurs to figure out how to use these extra 10 million or so people.

Richard Reinsch (12:27):

You write about that, the government in 2008 responded with a lot of stimulus and also the Federal Reserve engaged in quantitative easing, trying to take on productive assets off of financial balance sheets and putting it on the Federal Reserve’s balance sheet. And then now in this crisis, a much larger stimulus package was passed over 3 trillion. And the Federal Reserve, to a lot of people’s thinking, has sort of crossed a new line and is now lending directly to businesses. Talk about that. How does that relate to sort of this macro economic thinking.

Arnold Kling (13:02):

It’s really odd. It’s based on this old paradigm. In the GDP factory paradigm has something called a supply shock where the factory has to shut down because it can’t get new parts or a machine breaks down or something. And even a conventional macro economist would look at what’s going on and saying that has elements of a supply shock in it. That the economy isn’t supplying the stuff that people want in the current environment. And the cost of supplying things has gone up. You could see that in terms of like schools having to reconfigure themselves and come up with new equipment to open. So there’s a supply shock, but the way the policymakers respond is entirely trying to boost demand, which is really strange. If you think about it, the government shoving money at people and then saying, but don’t go to restaurants, we’re going to close them down. Don’t go to small business, we’re going to close them down. It’s really kind of feudal. What needs to happen is there needs to be some reconfiguration. Again, if fears of the virus decline, which is probably the best thing the government could do is sort of take steps to reduce people’s fears of the virus. Then some of the other activities will come back, but then a lot of activities left to be reconfigured. Maybe people have been projecting for a long time, that education could be reconfigured, sort of some different combination of in-person and remote learning. The value of putting a thousand kids in a lecture hall just can’t be compared to giving that same information online. There may be other things that are much more valuable in person, but it’s time for higher education to figure that out. Things like business conferences, again, will be reconfigured. So the longterm changes, they’re not affected by stimulus measures, they’re affected by people in business and in these institutions figuring out how best to do things.

Richard Reinsch (15:14):

How would you advise, I mean, to me the stimulus was sort of this democratic process where something had to be done, something large had to be done. Because the government had shut down so many businesses, state governments, local governments. The government had to act in some way to compensate people for those losses. But how would you prescribe, if we could follow what you’re saying, what would be measures to take?

Arnold Kling (15:39):

Okay. The first thing that comes to mind is some kind of employment subsidy. So you’re giving employers reason to hire people. You could just have a one year or two year moratorium on the payroll tax, for example, would give employers more reason to hire people, that would be one.

Richard Reinsch (16:03):

Make business startups easier. Make it easier to form and start new businesses.

Arnold Kling (16:09):

Yeah. And any kind of deregulation on those lines and things like clearly reducing business liability for people getting COVID when they go to work or go to an event. And as long as the business isn’t sort of unreasonable and forcing people in close quarters or whatever.

Richard Reinsch (16:33):

We are likely though to just continue to bail out these different parts of our economy, hotels, airlines. One can see higher ed getting a bailout. We haven’t even touched a lot of the states that are way over their heads here. I see that as a possibility.

Arnold Kling (16:51):

And that’s something where you wish that there were some thought going into it, as opposed to just who’s got political power. But if you think about it, the political power will be, people have businesses in every congressional district. So if the real estate industry were in trouble, which is not, you would get a big bailout. But it did in 2008, things like auto dealers will probably get whatever they ask for and higher education will get whatever they ask for, you’ve got institutions everywhere. And it’s a very powerful lobby. A real challenge is what to do with small businesses. What I proposed months ago was to have a general line of credit available to small businesses that’s sort of equal, proportional to the revenues that they were getting prior to the crisis. But the longer this goes on and the longer the small businesses are down, the more unreliable they are, even if they were given very low interest loan. Again, the best subsidy there is somehow reduce the fears of virus.

Richard Reinsch (18:06):

If I were doing the exact opposite. At least the reporting that I see every time there’s a spike in cases that we’re told and this is of its own an alarming fact. Do you fear, I ask a question about the Federal Reserve, my understanding is that lending facility they were given by the first stimulus, they have not even remotely exhausted. Do you fear that there’s a new Federal Reserve coming into being, in relationship to businesses and the economy?

Arnold Kling (18:33):

Yeah. There’s the potential really for almost the end of capitalism, as we know it, and that the Fed basically has so much power over particular businesses, whether they live or die. Even if they didn’t use that politically, which they probably won’t do that as they’re not going to all of a sudden saying, well, every business owner who supports a particular political party gets credit and the other ones don’t, I don’t think they’ll go that far. But they don’t have the wisdom to make the decision that local banks do about which businesses are likely to survive and which are not. And they will be under pressure to give credit to the airlines or whatever. Even if airlines have a low probability of survival, which means there’s less credit for other businesses. But it’s very disturbing that to centralize the decision-making about credit to that extent. And what I think the Fed ends up doing is kind of re-decentralizing it in a way, but in a weird way, by hiring companies like BlackRock or whatever, to tell them what to do. So it’s the opposite of the bank with the local knowledge, making a decision, large firms at the behest of the Fed.

Richard Reinsch (19:56):

Elite driven financial system, truly.

Arnold Kling (19:59):

More like a Chinese system where you want to centralize financials.

Richard Reinsch (20:05):

I know there’s a monitor limit on what the Fed can do. But is there a time limit? I mean, does it just sort of keep on until they’ve exhausted that supply or?

Arnold Kling (20:13):

I don’t know legally, but I don’t think the history shows any instance of the Fed ever losing a power that it gained. The history is it just gets more and more power. And Congress is talking about giving it more and more mandates. A mandate to worry about climate change, for example, mandate to worry about economic inequality. And the more mandates it gets, the more power it will hold on to.

You don’t gradually notice a debt crisis. You can either be in one of two states. You can either be trying to borrow or in a crisis. There’s no kind of simple warning, gradual onset. It comes suddenly or not at all. And I guess that’s a weird thing for people to get their minds around. So what’s happening now is we’re creating a situation where a crisis will be harder and harder to resolve.

Richard Reinsch (20:41):

Systemic racism was one I’ve heard, also at least the Fed should be concerned about systemic racism. It springs the obvious thought here, or maybe not obvious. You’ve got those in control with power, making very top-down decisions, as opposed to a more market process of people interacting based on what they know about their discrete situation in the market. And that should inform lending. And that leads to this sort of waste of capital or not the most efficient deployment of capital. And so you get a very different kind of economy too.

Arnold Kling (21:14):

Capitalism is an evolutionary system. There’s a lot of trial and error. I mean, that’s how we’re going to get these 10 million people employed. And there are a lot of businesses are going to start. At least half of them will fail. And over time, people will settle into jobs that are productive. When you have this centralized allocation of resources, you don’t get that evolution, you mostly get attempts to prop up what’s existing businesses. There’s a little bit of value in propping up to think that their problems are temporary. So again, if it’s a business has a problem because the fear of the virus is very high now, but the problem will go away very quickly if the fear goes away, fine. But what you’re going to get is long-term propping up of institutions and businesses that really have lost their viability for a long time. And that takes you to a bad place.

Richard Reinsch (22:12):

You write, towards the end of the essay, about debt about household debt and also public debt. In the midst of this crisis, you’ve got this large stimulus, there’s a call for even more stimulus. We don’t seem really to be constrained that much by thinking about what we’re doing to our already very high debt. And then we’ve got, of course, these sort of structural debts and forms of entitlements that are going to be coming due over the next few decades, and it seems we can’t even begin really to pay off. Why did we stop worrying about debt? Both the debt households carry and also public debt?

Arnold Kling (22:52):

Well, I haven’t stopped worrying about it.

Richard Reinsch (22:54):

We seem to be the only ones.

Arnold Kling (22:56):

Yeah. I think the reason is that we’ve survived so far. It’s sort of like the guy who jumps out of a 10-story window and halfway down says well, it’s fine so far. Government debt is a weird thing. And that as long as people are confident that the government can repay it, that the interest rate will be low and it will just be able to keep rolling over debt. Once people lose confidence, then they won’t supply credit to the government anymore. The interest rate goes up and it becomes a self-fulfilling thing where it hits the debt crisis. So my point is you don’t gradually notice a debt crisis. You can either be in one of two states. You can either be trying to borrow or in a crisis. There’s no kind of simple warning, gradual onset. It comes suddenly or not at all. And I guess that’s a weird thing for people to get their minds around. So what’s happening now is we’re creating a situation where a crisis will be harder and harder to resolve. That’s what having all this high debt GDP at high amount of unfunded future liabilities means. Is that if and when a crisis occurs, it won’t be much more severe than it would have been had we been more prudent. So it’s not that we’re gradually bringing on more of a crisis it’s that we are sort of making a bigger bomb to go off when the crisis occurs. There will be much worse devastation when a crisis occurs

Richard Reinsch (24:46):

You think about the debt situation America was in after World War II, which is understandable. But a younger country, a country that was about to embark upon a tremendous productive surge in its capacity. And a country that was really the one of the few countries standing at the end of the war. That was a totally different picture than where we are. Now we just seem incapable of paying this debt off.

Arnold Kling (25:08):

There are two main differences. One is we actually did for a little while and payed our way out of some of the debts. The second is that we really ran government surpluses for most of the years following. At the time we had two budgets, we had the official budget and we had Social Security, which was running big surpluses at the time because the Social Security system was very new. They weren’t paying out very much to people and a lot more people were paying in than paying out. But the social security surplus was not counted as part of the budget until the late 1960s. So all through the 1940s and 50s, people were looking at the budget and saying, “It’s about balance.” It’s actually a big surplus. So we actually ran surpluses for about 15 years and that paid off the debt. Like if you pay down your credit card bill, you pay down your debt. The government was doing exactly that. We’re not close to that. Now we’re including Social Security, but Social Security actually, there’s more money being paid out than coming in. There’s nothing like that where we’ve been running bigger and bigger deficits in good times and bad. Trump ran a bigger deficit even in the pre COVID economy. So yeah. No, you’re right. It’s just not at all like World War II.

Richard Reinsch (26:37):

We are accustomed to deficits year over year, we’re accustomed to debts and it’s been a part of American government for four decades. The speech that Senator Daniel Patrick Moynihan gave in the early 1980s, calling attention to this fact that this had become an American way of life and how odd that was. And I think now we just sort of, we just accept this. There’s no real debate going on.

Arnold Kling (27:00):

And part of the problem is that those of us who’ve been warning about deficits and debt have been warning about it for a long time. And it’s easy to say, well, you made the same argument 20 years ago for 20 years, we’ve run bigger deficits and nothing’s happened. It’s like, again, you’ve jumped off the 10th story, you’ve made it all the way down to the second floor now, still nothing wrong, so you just extrapolate from that.

Richard Reinsch (27:28):

So the bomb going off could be inflation likely that doesn’t seem to be a fear at all either. You’ve written about inflation for Law & Liberty, but I think it relates to the situation.

Arnold Kling (27:40):

And even that doesn’t necessarily get you completely out of the crisis because things like Social Security and Medicare, these unfunded liabilities. They go up in inflation. So my view of it is it will cause tremendous political conflict that, basically the way we resolve political conflict in recent years is just spend money. Give people wealth, now you’re going to have to take it away. You’re going to have to tell somebody that they’re not going to get paid. You’re going to have to tell a bond investor, sorry, you’re not going to get your money. Or you’re going to have to tell a Social Security recipient, you’re not going to get your money or something.

Richard Reinsch (28:21):

And the government would do that through inflation, would be one way?

Arnold Kling (28:25):

Yeah. Again, that may or may not work. But the point is the politics will be very very rough and there’ll be a lot of strife. So you want to simplify the costs and say, Oh, your children will be poor or something. That’s not really what happened. What will happen is that the government that claimed that it can satisfy everybody will now be in a situation where it’s got obligations to lots of people, but it cannot satisfy. And there’s fight over who bears the pain. It’s a big cost.

Richard Reinsch (29:04):

Yeah, it seems to me, it’s just thinking about this, the financial crisis of 2018 to reveal that we couldn’t keep doing what we were doing in a lot of ways, both financially our financial system, our government debt payoff system, we didn’t really restructure to take account of that. COVID seems to be revealing also these kinds of same problem, but we don’t want to heed them in any sort of accountable, responsible way.

Arnold Kling (29:31):

I think that there’s kind of a trade-off between running a business or an economy at high efficiency and running it in a way that’s robust. So for example, if you have a really complex supply chain, it may be very efficient, but if one little part of it breaks, then trouble. And financially, if nobody’s got any reserves, if the typical consumer run into any financial difficulty at all can’t function, or if a small business that loses revenue for a month and has to default on its loan, it’s not a robust system. That’s a very fragile system. And I think that’s the way we’ve kind of run. And after 2008, the claim was, “Oh, we’re not going to do that again. We’re not going to have this kind of fragile financial system.” So when we came right back to it, come right back to a situation where a lot of financial institutions and a lot of corporations could only operate if there was no adversity at all. So running an economy that’s not fragile, it’s a real challenge, I guess, politically, but it would mean changing the ways the laws treat debt versus equity. For example, people to run less fragile businesses with sort of lower returns on equity, but more ability to withstand the shot.

Richard Reinsch (31:05):

Yeah. There’s no political will to do that. Arnold Kling, thank you so much for talking with us about economics post COVID. We appreciate your time.

Arnold Kling (31:14):

Okay, thanks.

The Founders' Senate Nov 11, 2020

Richard Reinsch (00:18):

Hello, and welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Professor Todd Zywicki, welcoming him back to Liberty Law Talk, a frequent guest, to discuss recent calls for reforms to the Senate in particular and to the Congress and what might restore that body to more vigor and greater political-institutional health. Todd Zywicki, a frequent guest on Liberty Law Talk, when last he was on we discussed the cartel of higher education in conjunction with a book Todd had just written with Neal McCluskey. Todd is an expert in bankruptcy law and consumer credit, among other specialties. He’s also an economist, he teaches, I mentioned at the Scalia Law School. And he’s also a Senior Fellow at the Cato Institute. Todd, you are also a star, I noted, at the Social Science Research Network. You are in the top 10% of most downloaded scholars on the Social Science Research Network, so congratulations.

Todd Zywicki (01:17):

Thank you.

Richard Reinsch (01:18):

Nice to have your work sought after. I was thinking about, Ben Sasse had this op-ed “Make The Senate Great Again,” that was in The Wall Street Journal earlier in September. And he listed a number of reforms to make the Senate work better. Sasse himself a scholar, PhD in history, I think from Yale. His first speech in the Senate was about the sort of underwhelming nature of Congress in its current operations. And he listed a number of reforms, some of which I thought were ho-hum, some seemed interesting. One, take cameras out of the Senate, out of committee hearings, abolish standing committees, I would actually argue the committee should be strengthened if you want to restore the vigor of the body. Pack the floor, meaning require attendance at debates so there’s a full house. Live together in dorms, and also sunset all agencies and departments. Give them a year left to operate and force the Senate to begin making laws again. So he understands the administrative branch dynamic there. Then also, and you’ve written on this, several law review pieces and debates and shorter pieces, “repeal the 17th Amendment” would be key. And he makes the point that it would allow the states to reenter national debate as states again. And that would sort of diffuse maybe the ongoing just ideology that percolates through the Senate. So what do you make of any of those proposals and then we’ll also focus on the 17th Amendment?

Todd Zywicki (02:47):

Well, more generally, all of them raise the same question, Richard, which is one of the things that Sasse is basically [inaudible 00:02:54] at with a lot of these things is that the process of electioneering has come to dominate the process of governing with respect to the Senate. And the great irony of that is that the original Senate was elected by state legislatures, and that was changed in 1913 with the 17th Amendment that moved to direct election of Senators. And I know we’re going to talk about this in detail, but in many ways what Sasse in coming back to rests on that foundation which is that the framers clearly had a design in mind for the Senate, which it would be fundamentally different from the House.

They hoped, and thought, it would be a body that would not be driven by electioneering. It would be driven by basically governing. Which is that the House was seen as the place where politicians would posture and do the things that politicians do in order to get votes and scramble for votes. But that the Senate, due to its longer term and the manner in which is was elected, would be different. And a lot of these things he talks about, like cameras in the room, the way in which the committee system is used to basically deliver benefits to special interests, all those sorts of things, in many ways are by-product of that same fundamental dynamic which is the adoption of direct election of Senators by the people in partisan elections is fundamentally incompatible, fundamentally contradicts, the idea that the framers had in mind for the Senate. And I think, in many ways, that’s what all these things are is a manifestation of that problem. And it’s not clear… We’ll talk about sort of what went awry and that sort of thing, but I think he’s right with a lot of that. And in many ways he’s trying to treat the symptoms of that and not just the causes.

Richard Reinsch (04:51):

Yeah. He also calls for extending the term to twelve years from six years, and prohibiting any political fund raising while the Senate is in session. So I think that fits your analysis, more treating symptoms. The thinking here, too, it seems to me that a fundamental problem as well, and James Buckley has a book on this, that he wants to amend the Constitution to prohibit the Congress from being able to just make sort of general grants to states. That it would have to be constitutionally tied. Appropriations would have to be a part of the delegated powers. And so it seems like he’s trying to limit, effectively, what they could do, another way of going at this. Thinking about the 17th Amendment, so you mentioned 1913. It was ratified, it provided for direct election of Senators. What’s the significance of that. I mean many people I think would say… Obviously there’s a democratic point there, but why would you argue that that remade the senatorial body?

Todd Zywicki (05:58):

Well, 1913 is, in many ways, the pivotal moment in American Constitutional history, in sort of the dawning of the Progressive Era and everything we’ve seen since. Which is, two things happened in 1913, which was not just the ratification of the 17th Amendment, but also the ratification of the 16th Amendment, providing for the income tax. So in many ways what we saw with those two back to back was that the 16th Amendment unleashed the taxing power of the government. And the 17th Amendment unleashed the spending power of the government and, in particular, the ability of the national government to easily provide to take those new funds and redistribute them to special interest groups in particular. And so if you look at it from that lens, essentially at that point the New Deal, which comes along obviously 25 or so years later, as kind of a mop-up operation, once you’ve basically set that structure in place for a more robust national government in terms of taxing and spending power.

one thing that’s often forgotten when we talk about the original Senate, was the idea of bicameralism. And the idea of having two bodies composed by different groups of constituents was designed to limit the power of interest groups.

We can go, and I think we will go into detail about the specific impact of the 17th Amendment, but what I think is significant and relates to Buckley’s comments that you noted, was that when it comes to Federalism specifically, the framers saw the election of senators by state legislature to essentially both be necessary and sufficient condition for preserving constitutional federalism. And the magic expression here is Federalist 51, which is where everything comes back to Federalist 51. Which is Madison’s view that in order to preserve the Constitution, the interests of the man must be aligned with the Constitutional rights of the place. The interests of the man must be aligned with the Constitutional rights of the place. Which is to say that if you want federalism to be preserved as a Constitutional value, the view of the framers was you have to make the self interest, the political self interest of the representative be aligned with promoting that Constitutional value. What Senators care about is being Senators.

And being a politician is a competitive business. And so, what you have to do is basically make sure that if you’re a Senator that you’re responding to your constituents. And if your constituents are state legislatures and state legislators, that’s a very different constituency from the general public. And that’s what the framers understood and that’s what the framers were trying to do. Which, to some extent, was done imperfectly, because, as we all know, some kind of mechanisms of direct election arose during the nineteenth century. But I still think it had an impact, even with some of the mechanisms of direct election that arose. I think, when I look at the historical record, it looked like a lot of these things we talk about, unfunded mandates and a lot of the real incursions of the federal government on the states, just don’t seem to be there. And I don’t think they would be there to the same extent even if the prior 17th Amendment Senate was an imperfect vessel for preserving federalism.

Richard Reinsch (09:17):

Auxiliary precautions in Federalist 51. That’s a phrase that I think sticks with me as I think about problems in our current federal government. So the House, obviously, two years directly tied to the people. The Senate would have been tied, was tied, to state legislatures appointing the two senators to represent their state. And the auxiliary precaution meaning two different bodies elect those two branches. And that being crucial because it’s not just a majoritarian, two bodies representing majoritarian interests. Could you talk more about that, what was the significance there?

Todd Zywicki (10:00):

Yeah. And the framers, obviously it was kind of a genius structure, right? Which is, two houses elected by different constituencies for different terms. We also have a president who’s going to be indirectly elected. That didn’t last very long. We still have the vestige of the electoral college, but we do not actually have electors. And we had judges who would basically be appointed for life, right? And the idea was, was this machine in which these different hubs selecting the members of the federal government by different mechanisms would bring certain incentives to what they were doing in that the system as a whole would be more than just the individual pieces.

If you look at the Senate specifically, there were two basic goals here. Which the first was kind of recreate a House of Lords. Which is, as I mentioned, the idea was the House would be the place in which people did politics, retail politics. The qualifications were younger, the terms were shorter, and they expected that there would be direct accountability on the House. The Senate was obviously modeled, to some extent, after the House of Lords in Britain. And the idea was that the Senate would be the place for people who are accomplished in life. Qualifications were that they had to be older, 30 rather than 25. And the idea would be that very distinguished people would be selected to serve in the Senate. Not only career politicians, is what’s ended up happening, but accomplished lawyers, business people, military heroes, people of stature, who were turned off by the idea of House and all the electioneering in the House. And they would be chosen for character, judgment, and prudence, and that sort of thing. Which is I think also one of the reasons why they gave to the Senate special responsibilities like with respect to treaties and the like that they didn’t give to the House.

That idea of the Senate as a House of Lords was, to some extent, true. Because it did allow people like Daniel Webster to move in and out of the government. A lot of those people we know during the 19th century would kind of rotate in and out of the government, kind of returning when they were needed. Whereas one of the big things that’s happened is now the Senate is basically just full of career politicians. Which has changed the dynamics, I think, of the Senate itself. The second important thing about the Senate that you allude to is the structural piece. Which is, it’s supposed to be two things. One, preserve federalism, as we talked about a little bit. But the second one is to bring this notion of bicameralism that you mentioned.

And bicameralism is the idea of having two houses that are designed to pass laws in different way. So as to, as the framers clearly understood, mitigate the power of faction, what we would call special interests today. And the idea is that through bicameralism interest groups would have more difficulty influencing the government, and the public interest would prevail by having two bodies selected by different groups. And that’s one thing that’s often forgotten when we talk about the original Senate, was the idea of bicameralism. And the idea of having two bodies composed by different groups of constituents was designed to limit the power of interest groups. And now, when you make the two bodies more or less identical, it eliminates some of those brakes and some of those checks on interest group factionalism as Madison called it.

Richard Reinsch (13:22):

Now I know, just thinking through all this right now, it’s been a part of center right conservative thinking in this country. And it’s now at a fever pitch with anger at elites or distrust of elites. Thinking about this system where state legislatures would appoint people to represent their state in the original design, couldn’t that also lead, though, to a system of elites bargaining with elites and distributing spoils? As opposed to say a more popular check that we currently have? I mean, I guess, I’m sort of thinking how would it work now that the ideology is really switched? Of course, progressive thinking has switched where states now very much want to be a part of receiving rents from the federal government. I think what, I would say most states, 20% of their… What they receive from the federal government probably equals 20% of their annual budget, if not more. What do you think about that?

Todd Zywicki (14:16):

That’s exactly the criticism that’s been expressed. And it’s not just from conservatives now. That was exactly the argument that was made beginning in the late 19th century when people started beating the drums for direct election, the muckraking newspapers, the populist newspapers, deeming the Senate of the late 19th century and early 20th century, the millionaire’s club. And, of course, if you go back and read the Federalist Papers the Senate was one of the things that the anti-Federalist’s found most obnoxious for precisely this reason.

Was that what the framers saw as a feature, this sort of House of Lords, the anti-Federalists saw as a bug, right? And they genuinely were concerned about this notion that the long terms and lack of political accountability would make the Senate into this elite group. But again, if we go back to Federalist 51, what does Madison say is the challenge? If angels were to govern men, no government would be necessary. But if we’ve got men running the government we have this trade off. In the first place the government must be powerful enough to control the governed.

And in second place it must be obliged to control itself. Which is, there’s this tension inherent in our Constitution between limiting the power of faction and limiting the power of democracy. Which is the point about the government being able to control the governed, which is why they thought in terms of an indirect elected president, an indirect elected Senate for long terms, and, of course, an independent judiciary that would be protected from the accountability of the democratic process and all that. But at the same time, the concern about elitism, which is to say that if you create independence to resist factionalism you run the risk that the governors become the faction unto themselves and basically end up running the government for themselves. And, of course, the exact same criticism you hear about the Senate is what conservatives say about the judiciary. Which is that the unaccountable, unelected judiciary basically imposes their own views on society without any direct accountability.

The framers answer was that we want to have all of that, right? That’s why they thought of all of those four groups, four different bodies, interacting in some way that would bring different perspectives and that sort of thing. But you raise exactly the right point, which is a concern, it’s a concern that was present… And I have to say one funny story was a few years ago after I wrote my article in the National Review on the 17th Amendment. A blogger for the American Constitution Society said, “Well, Zywicki just hates democracy, and he wants to get rid of democracy.” And so I wrote back, and I said, “Oh, so you’re in favor of direct election of judges?” And that was the end of the debate, he never responded, right? Which is the last…, But it’s the same logic. Either you’re for direct, you’re for election of judges or you’re against it, right? But basically that’s the argument the framers were putting on the table.

Richard Reinsch (17:30):

When I asked that question, too, and I was thinking of Michael Greve’s The Upside-Down Constitution, which is an interesting book for a number of reasons. One of which is the way he talks about competitive federalism as opposed, to say, the sharing of power. But the ways in which Federalism is supposed to create this baseline and the states have to compete against it. and that’s been endlessly corrupted in the 20th century where states now use the federal government as a way to prevent competition amongst themselves. But they haven’t totally, they haven’t been completely successful yet. Greve describes other systems, Argentina, talks about the German system, whereby elites are able to use federalism to just endlessly divide spoils.

And he says in our systems that hasn’t happened in that way yet because of this, the representational principle of the federal government can actually touch individuals and represent individuals. I guess that’s why I thought about that. And it seems what’s ultimately being preserved by the U.S. Senate, and this is why Progressives hate it as a body. And many times we hear this common refrain, why should Wyoming cancel California? There’s 200,000 people in Wyoming or something, and California has millions. And also California is just way more culturally important so far than Wyoming. But the point being though, the Senate, each state is still equal in the Senate. And to me I would argue that’s ultimately what matters. What do you say to that?

Todd Zywicki (19:00):

It does seem to matter, but whether it’s what ultimately matters I’m not sure. I mean, obviously, that has some effect, and in many ways that tradition lives on in terms of that decentralization effect. Let me say first, I think that Greve’s book is pretty much the most brilliant book I’ve ever read on the Constitution.

urban machines in the cities wanted direct election because they knew that they could influence elections more, as opposed to having to go through state legislators, which were tilted before redistricting in favor of rural interests, before Baker v. Carr and those cases.

Richard Reinsch (19:18):

It really is.

Todd Zywicki (19:19):

Most of us, by the time we reach 40 or so we rarely fundamentally change our minds about things. Greve’s book fundamentally changed the way I think about the Constitution, from sort of a more pure state’s rights view to a more inter-state view, and sort of understanding the balance between the federal and state governments. So I think it’s really important. And what I will say is I think that the way in which the Senate originally operated, or operates throughout the 19th century, was in many ways more consistent with Greve’s view, right? Which is to say that when you look at the history of the 19th century what you see is, by and large, the federal government did what the federal government was supposed to do, and the state government did what the state government was supposed to do. Which is, the states provided most of the services as was expected.

And the federal government did the things that they’re basically expected to do. Which is they did interstate improvements, they made it possible to create networks, preserving the interstate common market. And in times of crisis, the government would expand to pass a bankruptcy law when they needed bankruptcy law, to wage war when they needed war. But what also happened is during the 19th century we don’t really see this ratchet effect that Robert Higgs points out, where the federal government expands to meet a crisis, it would then to retrench to back where it was. The first time we really see a ratchet effect in American history is after World War I. And maybe it was an ideological view, maybe it was inevitable. But I find it hard to believe that it was purely a coincidence that the ratchet effect first appears during World War I.

And then during that exact same period, in the teens and into the twenties, which where we first start to see the first real expansion of the national government in terms of delivering rent seeking type legislation and redistributing wealth to discreet groups. Which in the government, and, of course, that time, blows the lid off as you move into the New Deal. And a lot of what the growth of the federal government has been since that period is primarily in wealth redistribution systems. For entitlements, subsidies, and rent seeking type things, using the tax code as a vehicle for redistributing wealth. Which, now may have just been inevitable, because of technology and ideological change.

But I think that changing the manner in which the Senate was composed created more of the conditions for this cartel federalism that Greve talks about than was otherwise the case. Maybe it hasn’t gone all the way for the reasons you talk about, about each state having equal representation, but I think it did increase the propensity for that to happen. The growth of the federal government, in particular the growth of the federal government in terms of providing rent seeking or special interest type legislation.

Richard Reinsch (22:20):

When you look, and you know the history very well leading up to the ratification, so you know the debates and everything that were going on, a question that I have, why would the states give up that power? That, to me, is an interesting question.

Todd Zywicki (22:33):

Yeah, that’s always the interesting question. And there’s some fascinating history here that my former colleague David Schleicher has gone into, that has really made me rethink a lot of this. Which is to say that I think that the way in which the structure of the Congress, Article I, was originally designed, with an indirectly elected Senate, still has a lot of virtues and had a lot of virtues. But my enthusiasm for that particular mechanism has been tempered a bit over time by reading David’s work. Which is, what David says, is that during the 19th century, especially under the influence of Jackson, that earlier in American history than might be appreciate, parties basically overwhelmed the Madisonian structure. And we see that now, right?

We see that in things like the farcical impeachment processes we’ve seen both for Trump and Clinton, which turned out to be partisan in their voting. I won’t say they were equally partisan in their initiation. But that process, and a lot of these processes, are received during the Noel Canning case where the Democrats in the Senate actually endorse the power of the President to call that, to basically declare them as being in recess, right? Which you’ve kind of reached the Madisonian nightmare of being overwhelmed in many ways by partisan political influences. And what Schleicher says is that happened during the 19th century more than I, at least, necessarily appreciated. Which is that parties overwhelmed the structural influences, and that over time, the Senate elections placed a pretty strong influence over state legislative elections. That state legislative elections more and more became a proxy for Senate elections. So his argument is that, to some extent, state legislatures may have been frustrated by the fact that the national elections, rather than being indirect they basically became vehicles, right, electors for their senator. And so I think that probably explains some of it, which is that this separation didn’t necessarily work that well.

I think some of it also deals with the fact that interest groups, national interest groups, a lot of interest groups wanted the 17th Amendment. They wanted direct election. National interest groups who wanted more regulation of interstate commerce in order to cartelize their industries, like the railroads. Labor unions wanted it. Urban machines were strong components, ironically, right? Because people claimed that the Progressives were against urban machines.

But urban machines in the cities wanted direct election because they knew that they could influence elections more, as opposed to having to go through state legislators, which were tilted before redistricting in favor of rural interests, before Baker v. Carr and those cases. So I think it was probably a combination of interest group influences pushing for direct election to be able to influence the power of the federal government to give them rents. And perhaps some of this frustration that Schleicher points out among the state politicians at having their futures tied, to some extent, to senators who they didn’t control. Or they couldn’t control their election very well.

Richard Reinsch (25:55):

It’s funny, I was thinking, you mentioned Baker v. Carr. I was thinking even state legislatures, in a sense, kind of had a feature like the Senate, in the sense of rural interests were able to counterbalance large cities. If you think about Illinois, if you walk into the Illinois legislature the Chicago delegation must surely overwhelm everything that goes on there.

Todd Zywicki (26:16):

Yeah.

Richard Reinsch (26:17):

Maybe to the detriment of the state. I certainly noticed that when I worked in the state legislature before going to law school.

Todd Zywicki (26:23):

Sure.

Richard Reinsch (26:24):

There’s also a call now, even to abolish the Senate. Not a call, but you see people, they’ll make these, or to change it’s composition in some form. Or to add states. And, of course, that gets back into partisan politics as well. That point of the parties overwhelming the process is well taken. And it does make it seem as if separation of powers can’t do its full work. Thinking about this question, the original role of the Senate and it being lost, how many states were actually holding popular, or at least allowing sort of a popular canvas to exist, and then the legislature would actually have to choose from that, or would commit to choose from that?

Todd Zywicki (27:14):

Yeah, by the time of the 17th amendment, I think a majority of states had some degree of popular election. Which is that they would either have candidate chosen, been party primaries, and then the state legislature would choose their senators. Or, what they have is something called the Oregon plan, which was a system in which people running for state legislatures could have a statement appear on the ballot where they’d be required for a statement to appear on a ballot. Where they would say, yes, I will endorse the people’s vote, or, no, I will not endorse the people’s vote. And essentially what they then would havewhat would be legally a straw poll of voters. Where they would not create a binding vote for one candidate or the other, but that they would create basically a non-binding vote that state legislators would agree to endorse. And I think some states may have just required the state legislatures to do that.

One bogus criticism of the Senate prior to the 17th Amendment was the argument, which the facts are true but the causal relationship is false, which prior to the 17th Amendment there were periods in which states had vacancies in the Senate, that they failed to select a Senator. And this would often be the case in which the two legislatures of the state were controlled by different parties or by different factions, right? So think about, during that period, the Western states in which you had essentially a three party system. Where you had Populist Republicans as well as traditional Republicans and Democrats.

So it was the case that some states sometimes would fail to select a senator. I think that’s a largely a sideshow for two reasons. Which is the first reason in that most states did that once, or maybe twice, and didn’t do it anymore. So most states learned their lesson and they fixed the process. The more important reason I think was that there was a federal law passed, I think it was in the 1860’s, that required state legislators to select senators by a majority vote. They were not allowed to select by a plurality vote. And, as we know now, a lot of Senate elections, the person who’s chosen is selected by a plurality vote. Pretty much any time you have a robust third party you have somebody selected who gets less than 50% of the vote. So that deadlocks problem could have been eliminated simply by eliminating that federal law. And so that’s something that’s often criticized about the 17th Amendment, which is beside the point.

Richard Reinsch (29:57):

The corruption point is made as well. That seems interesting, and you point that out in one of your pieces. Or you make that point several times, that corruption was the allegation, wide spread in state legislatures, over who would they pick potentially. But, of course, you increase dramatically money in politics, political partisanship, when you go to the direct elections. And I guess, in a way, the corruption point blends into a progressive point. Which was this idea of getting a clean politics in a sense of there is, politics is politics, and wherever you try to eliminate it, it just goes somewhere else.

Todd Zywicki (30:34):

Yeah, that’s right. This is one, I laughed when you were saying it. Because I was just having a little kind of back and forth on Facebook the other day with a very prominent conservative person who was talking about, oh, the corrupt Senate prior to the 17th Amendment, criticizing Sasse’s view. And the great irony here is well, first, corruption wasn’t that common. There were certainly cases of corruption then, there are cases of corruption now. But you put your finger exactly on the point, Richard, which is it’s kind of comical for somebody to say that they passed the 17th Amendment to get rid of special interests influence over the Senate. As if we don’t have any special interests influences over the Senate nowadays when they have to raise tens of millions of dollars in order to run an election.

Maybe it doesn’t involve just repealing the 17th Amendment. Maybe it’s trying to bring back a lot of the virtues that the original Senate was trying to bring. Which is to create a more deliberative, more insulated body, that’s more responsive to structural concerns of states, strengthen the process of bicameralism and the like.

So I think that’s kind of a sideshow or sort of a unicorns and fairies approach to politics to say that we’ve gotten rid of special interest influence in this fashion. We’ve probably changed the types of interest groups. As I said, for example, the current system has probably made urban machines more powerful but also changes the composition of the interest groups that tend to be able to have economies of scale to lobby directly to the federal government. It’s probably increased the influence of urban oriented interest groups relative to rural groups, or even, we talked about earlier. But it’s kind of silly I think to say the 17th Amendment eliminated special interest influence in government.

Richard Reinsch (32:06):

Yeah. Thinking here, also, just the notion, the Progressive notion, this is a Progressive amendment, is another point made about this as well, the Progressive ideology being… But of course other Progressive ideas didn’t make it into the Constitution through Amendment, like having referendums or a recall or things like that. And part of a lot of state constitutions now feature those devices. So we get the direct election of senators being a Progressive advance, direct election I guess being the point over all they wanted to make there. Has that resulted, though, in better state representation? Or it seems as we’ve been discussing, what it’s resulted in is something like more ideology or party polarization in many ways.

Todd Zywicki (32:52):

That’s why I take an interest in this Richard. I think we’re kidding ourselves, or I’m kidding myself, if thinking that somehow or another we’re going to actually repeal the 17th Amendment. Democracy seems to be democracy, which is to say that once you give people the power it’s unlikely that they’re going to give it back. Why I think that it’s so useful to talk about and think about the 17th Amendment in the original Senate for this reason of… And this is where I put my professor hat on. Which is what I want people to think about and talk about is what is the Constitution, what should it look like, and what were they trying to accomplish?

The framers, as Franklin famously said, created a Republic if you can keep it. They did not create a democracy. They created a system where the purpose of government was preserve individual liberty and to restrict the power of factions. Meaning the power of organized interest groups to commandeer the power of the government to enrich themselves at the expense of the general public. Those were the goals. It wasn’t to create a democracy. Which I think the lesson we can learn from the history of the Senate and the history of the 17th Amendment is why does structure matter?

Why does it matter, the incentives we create for various political actors in this trade off between independence and accountability to do their job? How does different aspects of the government get together? And I think this kind of, in many ways, bring us back full circle to where we started with Ben Sasse’s proposition. And your point a moment ago, where we talk about people wanting to abolish the Senate. And I think what Sasse is really asking us to think about is what is the Senate’s value proposition? If all the Senate is, is a smaller number of people than the House of Representatives, but has the same degree of partisan conflict and sort of goofiness that we see in the House, why have a Senate? And I think what Sasse is basically saying to his fellow senators as much as anybody is, look guys, our days are numbered. If we’re going to basically just be like the House then our days are numbered. We’re not proving our value here to the people, we’re just a more elite version of the House.

And I think what he’s trying to push at with all these other reforms, of making the body more deliberative, making the body less partisan, making the body less responsive to special interests, is I think what he’s basically trying to say. Let’s think about what, and maybe also then trying to increase the influence of the states. And I think what his real point is, is let’s think about, if we’re going to have a Senate, what should its functions be? And maybe it doesn’t involve just repealing the 17th Amendment. Maybe it’s trying to bring back a lot of the virtues that the original Senate was trying to bring. Which is to create a more deliberative, more insulated body, that’s more responsive to structural concerns of states, strengthen the process of bicameralism and the like. And I think that’s maybe the bigger picture here is what studying this and thinking about this history can tell us about Constitutional structure and what is necessary to preserve individual liberty and restrict the power of interest groups and factions.

Richard Reinsch (36:16):

Just think about being a Senator. And you know that your origination point is your state legislature and could also be your ending point. And how would you act if that were true, versus, how do you act now? Are you this sort of hyper political animal who wants to not be shaped by the institution but to take Yuval Levin’s arguments here. You’re not going to be shaped by the institution, you’re going to stand on top of the institution, and use it to promote your interests or your ideology or whatever your agenda might be. You’re probably more likely to work within the system. I mean I would think, because you’re appealing back to people who themselves have a certain stature in their states and are watching you.

Todd Zywicki (36:59):

It’s a great point. And Vikram Amar wrote an article many years ago that’s related to your point, Richard. And I alluded to this earlier, which is one of the big changes since the 17th Amendment is that the Senate has, in fact, become a body for career politicians. Which is that, prior to the 17th Amendment, where states, they couldn’t recall senators, but it was quite common that there would be more rotation in office. Senators might rotate through the Executive Branch, or rotate in and out of the private sector over time. And that perspective has been lost, right?

The Senate now is a body of career politicians, and he documents this fact that there is less rotation in office. And there’s something important in that. Maybe it’s good, maybe it’s bad. But it definitely changes what you do, I think, if, as you said, maybe you go back to being a state politician after two terms. Maybe you go back to being a private citizen after two terms. Or maybe you rotate through the Executive Branch and then you go back to the Senate. That gives you another perspective, right? Where nowadays, as for example, we just learned in Alabama from Senator and Attorney General Sessions. Nowadays basically if you leave the Senate there’s a good chance you’re done, right? If you join the Executive Branch you’re pretty much done at that point and you’re not likely to go back into elected politics basically because some other incumbent will have taken your seat. And maybe that’s good, maybe that’s bad, but it’s definitely a change from what the normal is during a period of indirect election.

Richard Reinsch (38:32):

And maybe we can end on this. It’s where we started, in thinking about the composition of the government. If you think about, say, you had said the House of Lords. Or maybe thinking France, the old, the three estates before the revolution. They all had represented, distinct groups, within their countries. And, of course, the problem in America is there is no elite, landed elite. There’s no established interest in that capacity. There’s no established church. So what are you, in fact, representing? That’s sort of, I think, a question. And so when you’re putting together the government you’ve got to think about who it’s representing, how it’s representing them, what it’s going to be? In addition to what it’s going to be doing, how it’s going to be limited? And answering that questions I think is the House, the people, Senate, the states. The President is not going to be elected by a majority vote, but is supposed, the original idea being a deliberation in the Electoral College. And those are the key points, it seems to me, that we’ve occluded, or attempted to bury, in the current arrangement.

Todd Zywicki (39:36):

I think that’s right. And this is the suggested, that the framers had the right idea in my view, when they originally structured the Senate. Which is, what they understood that they were trying to do is create a body that would provide a bicameral check that would be slower moving, that would be less accountable to the people, and would be a vehicle for representing the states as states. And I think what we ended up learning during the 19th century was even though that was the ends that they had in mind, the means that they chose were imperfect. And in particular, a general question that we all remember from our high school civics class, which is the framers did not count on the rise of parties, and the way in which parties would change this whole dynamic. And, in many ways, change the dynamic involving the Senate.

And so I think one of the lessons we can learn from this is, and when you look at the debates on the 17th Amendment, it’s pretty clear at the time, in my view, they did not believe that they were essentially killing Federalism. They essentially thought that Federalism was so woven into the fabric of American life that they could tinker with this one system of accountability in the way in which Senators were selected and Senators would keep on going the same way. And I think what they found out was that they forgot the lesson of the framers. So I think one of the things I take away from this is I think the way the Senate was originally chosen turned out to be an imperfect vehicle for what the framers were trying to accomplish.

But what that leads me to think is well, if Federalism is still a value, if bicameralism is still a value, what other changes should we have? For example, should the courts be more aggressive in enforcing Federalism? And this is a point that Scalia, among others, basically said. Was that the framers did not build in a lot of other ways enforcing Federalism because they assumed the Senate would protect Federalism. But if we rip that means out, that notion of the Senate as a vehicle for protecting Federalism, for reasons unrelated to wanting to change the fundamental division of power between the federal and state governments. Maybe this idea the courts have largely deferred to the political process with respect to Federalism, maybe we need to reconsider that as well, right? Maybe we need to consider other types of proposals that people have talked about. Like easier ways for states to be able to propose things to Congress, for example. Or ways for states to over-rule, as a group, incursions by the federal government, a lot of these sorts of things that were automatically done when states could elect their state legislatures, but now are not really vehicles for them to protect themselves within the overall structure.

Richard Reinsch (42:20):

Well, Todd, thank you so much for discussing your scholarship and thinking on the original intent of the Senate, and now the 17th Amendment. Appreciate it so much.

Todd Zywicki (42:31):

Well, thank you Richard, and thanks for this stimulating discussion.

It's ACB's Seat Now Oct 31, 2020

Richard Reinsch (00:04):

Welcome to Liberty Law Talk I’m Richard Reinsch, today we’re talking with John McGinnis, about the addition of Amy Coney Barrett to the United States Supreme Court, and also the recently commenced Supreme Court term. We’ll discuss some of those cases and what else that we think Justice Barrett might contribute there. John McGinnis, many of you will know, is a long-time contributor to Law & Liberty. So we’re glad to have him on the program. He’s the George C. Dix Professor in Constitutional Law at Northwestern University. He’s the author of numerous books and essays and law review papers, including his most recent book was a co-authored one with Mike Rappaport, Originalism and the Good Constitution. He’s also the author of Accelerating Democracy, that was published by Princeton University Press. He is one of our most significant legal thinkers in America, and one of our leading constitutional originalists, John McGinnis, we’re glad to have you on the program today.

John McGinnis (01:19):

I’m delighted to be here at an interesting time for the court.

Richard Reinsch (01:22):

Interesting time, so last night October 26, Amy Coney Barrett, nomination received 52 votes. She was sworn in by Justice Clarence Thomas, which I thought was just a wonderful sight. Amy Coney Barrett, talk about her constitutional philosophy much has been said by her and by others that she is an originalist. What kind of an originalist is she, John?

John McGinnis (01:48):

First of all, I think it’s quite clear. She says her philosophy is the philosophy of Justice Scalia. So I think that she’s going to be an original public meaning originalist rather than original intent originalist. Beyond that I think it’s a little hard to say because while she’s been a prolific scholar, she’s not been a constitutional theorist. And the one thing we do know about her is I think she is unlikely to be a strong, what I would call libertarian originalist. Someone who sees that there is a presumption of liberty like Randy Barnett in the constitution, and that should inform her take on perhaps the original meaning. And what’s called the construction zone would be claimed by some originalists, that some parts of the constitution are determined and for people like Randy Barnett, that’s filled in to some extent with respect to a presumption of liberty. And there I think we do know she gave a somewhat unfavorable review to Randy Barnett’s book, on trashing what I’ll call libertarian take on originalism. So I think that’s pretty clear that she’s not of that kind.

I wouldn’t necessarily think she’s way on the other side, someone who thinks like early originalists, that democracy is the key aspect of the constitution. And therefore we should engage in a lot of deference to the legislative branches, even when there are rights set out in the constitution. I don’t think she’s ever suggested quite that. And so I tend to think she’s going to read the constitution without a presumption and favor of liberty or without a presumption and favor of legislative actions. Somewhere like straight down the middle originalist in that respect. But there are many questions I don’t think are entirely clear. And it’s not suprising that they’re not entirely clear, when she is not an originalist theorist and she’s going to get on the bench, and have to grapple with cases and their intersection with theory.

So one area, I think we’re going to see a lot of discussion of her and others on the court, it’s already begun is in relation to originalism and stare decisis and where she’s going to come out exactly there, I’m not sure. She has written an article about originalism and stare decisis, in which she sort of has endorsed the Scalia as opposed to the Thomas approach. But while endorsing it in sort of broad terms, she suggested the kind of tightening of it. And so I tend to think it will be somewhere between Scalia and Thomas. Thomas is recalled as someone who really largely rejects stare decisis in Constitutional Law, except when he can’t say the decision is wrong. Scalia, seems to accept a lot of decisions that he thought were wrong because there was just too much water under the bridge to overrule them. Where she’s going to come down between those two polarities as it were within the originalist camp, I’m just not entirely sure. I don’t think I’m quite sure she’s not entirely sure it’s going to be forged in discussions with her colleagues, that she correctly stated being a judge is different from being a professor, more to be informed by academic theories. She’s obviously going to take account of what her colleagues say and with the context of the cases that come before her.

Richard Reinsch (05:22):

That law review article, if I recall she listed Brown v. Board of Education as a super precedent, not an earth shattering move there. A lot of people would say that, I think everyone would say that. She did not include Roe v. Wade or Planned Parenthood v. Casey in that piece as a super precedent itself.

John McGinnis (05:39):

Super precedent as she was at pain to explain in the hearing, she was really using as a kind of academic term of art, but one of the best actually parts of the hearing is where Amy Klobuchar, quizzed her why isn’t Roe a super precedent, but she said, well, of course you have to really ask whether it’s a super precedent or not, really isn’t. And that’s sort of the definition, that one thing that really no one wants to overturn. And of course that’s not true of Roe that’s not true of Citizens United, it’s not true of a whole range of cases that are important precedents of the court, but that serious scholars and serious legislators thinks should be overturned.

Richard Reinsch (06:27):

Now, you mentioned she’s not and she’s indicated this in her writings she’s not inclined towards the judicial engagement camp of originalism. So with that being noted, do we have clues in her writings of how she will engage the questions of the administrative state that have really come to the fore?

John McGinnis (06:47):

I don’t think we have many clues in the writing. First of all, unlike some academics she’s really not an administrative law academic. I do think the best clue that we have that she’s not going to be a judicial deference is from her action on the Seventh Circuit, where in a Second Amendment case, she says that, even the non-violent felons should be able to have access to guns where she could have deferred to the legislature. And there’s some nuanced language in Heller itself that sort of gives the blanket categorical blessing to permitting States, to exclude felons from the right to have guns. Where she pointed out that didn’t make a lot of sense when a narrow kind of compelling interest path, or even intermediate path when the felon went violent, because of someone committed some sort of felony under the securities law that gives no reason really to believe that they’re likely to be violent with or misuse a gun. So I think that’s some indication that she’s not of the judicial deference school. I think with respect to the administrative state, we have very little to go on, except the general idea, which is that most originalists think that at least at its outer bounds, the administrative state seems to bump up against the core idea of the separation of power. It’s the legislature who should be making the rules, not the executive. So I’d be surprised if she were to not take that view. And that’s important because as you may know, there are even five votes, including Chief Justice Roberts on the court, express concern about the breadth of the court’s previous permissions for Congress to delegate authority to the administrative state. And therefore in some sense, aggregate their own responsibility to make clear, at least the broad outlines of the laws.

Richard Reinsch (08:55):

There was a case she wrote on recently in the Seventh Circuit, that involved a police officer and qualified immunity, where a police officer, I think had falsified something about the defendant, some official document. Maybe it had been the warrant itself, and she did not give this police officer qualified immunity, she ruled against it. So no deference there. Now, the facts there, which I can’t exactly recall were quite shocking. So there’s that, also it seems though one question comes to mind. If she said Scalia is sort of her mentor, she clerked for Scalia, and this is just one way of thinking. Did he shape her thinking about the administrative state? He was notably open to its powers until later in his career, towards the end of his career, where he seemed to have realized maybe this had gone too far.

John McGinnis (09:49):

Yes, that’s interesting because let’s understand that Scalia, came up I think when there was still a lot of sense among conservative legal scholars, that originalism really was a kind of way of reigning in the excesses of the Warren Court. Which seemed to even in administrative law seem to reach out, to restrict the political branches. And so I think that’s the view from which Scalia comes. That’s really not the thinking now. And so Scalia, I think as you correctly point out with himself changing. So I would not think that Amy Coney Barrett is likely to be the early Scalia in this respect, more likely to be the later Scalia moreover. That’s one area where I think there’s some substantial unity, I would say, including with between Chief Justice Roberts, who in some cases was if one talks about being more skeptical of the administrative state as the right to being ideologically on the right, he was ideologically right of Scalia. For instance, there’s a case in which Scalia upholds under Chevron deference, the ability of a agency to interpret ambiguities in their own jurisdiction in their own favor. And Roberts says, well, that actually putting the fox in charge of the hen house. That’s too far for Chevron deference. So this is an area I think of substantial unity. I would be very surprised if Amy Coney Barrett were not to fall in with the rest, this is not an area I think she’s likely to be a leader on. She’s not someone who is an administrative law scholar, she’s not unlike many of the other justices, like three of the other justices on the conservative side, a DC Circuit alumnus, where of course their largest diet is administrative law. But I would think she’ll at least go along with where I see the center of gravity is now on the court.

Richard Reinsch (11:52):

You’ve mention his name several times, what does this appointment mean for Chief Justice John Roberts, and in particular, the strategy he seems to have been employing recently he doesn’t want the court to be seen as totally aligned with the Trump administration or with conservatism. He’s made some interesting moves. What does she pose to that strategy?

John McGinnis (12:15):

Yes. Well, it’s always hard to understand the motivations of justices, but one plausible take is that Roberts is a Chief Justice and the Chief Justices have argued before, really I think has different motivations from other justices. It’s his court, everyone calls it the Roberts Court. And so he’s very concerned about… Chief Justices I think are always concerned about the standing of the court. One actual natural experiment we have in that respect is Rehnquist was much more conservative before he became Chief Justice. So and obviously I don’t think his views changed. It was the seat that changed. And so I think one way of understanding Chief Justice Roberts, is he’s very concerned with what political scientists call the diffuse support for the court. And that may in close cases at least make him interested in distributing victories, particularly in a court that now is partisanly aligned and with all the liberals are Democrats and all the conservatives are Republicans. And so I think that has been an element of his strategy as it were a kind of distribution of victories. Moreover, he is an incrementalist, and so some of his decisions while giving victories to the liberal side, I think the example of the abortion case last term, might not in the long run do that. So he gives a sort of little Easter eggs and even in his opinions as it were for the liberal side. And so that’s just kind of incrementalist approach to the law. So how will it change? Well, I think he an issue that he’s, I think he’s been the most powerful Chief Justice for decades. Because not only was he, the chief after Kavanaugh was confirmed, he was the median justice. That meant that he genuinely, I think, was in most cases in the middle and therefore the way he swung he could swing the court, and that gave him enormous power. And in addition, he has the power when he is in the majority of assigning the opinions. And so that allows him to choose the writer, including himself, which he took in many of the important cases, to write the opinion which sets the trajectory for the law. So suddenly he’s in a different position. He’s no longer the median justice. When you talk about who exactly the median is, I don’t think it’s entirely clear, but it’s certainly not him anymore. And that puts him in a dilemma, because he could still vote with the liberals, but that doesn’t give a victory, we still have a conservative victory. Worse still when he’s not in the majority, Thomas who’s the senior associate justice assigned the opinion including to himself. And that means we might get, since I think opinion writers have some political scientists say, some ability to write the opinion. If some discretion as it were, can move the trajectory of the law in a rightward direction. So he may oddly enough move to the right, would be my prediction because, by moving to the right, he at least retains the opinion and assignment function, and can assign the opinion to himself or to the least conservative member of the majority. So oddly enough, Barrett’s confirmation, I think is going to make Robert’s vote more to the right. And when he doesn’t vote to the right, it will make the opinions more to the right because Thomas will assign them. So that’s a hidden benefit for conservatives and for originalists. Because Thomas, of course is out of a subset, I’m always fighting against calling a justice as liberal or conservative. There are methodological differences and Justice Thomas is the most consistent originalists on the court. So that’s going to create a more originalist court because of Justice Thomas, his greater power to assign opinions.

Richard Reinsch (16:16):

So, Amy Coney Barrett’s position on the court will act in many ways to constrain Justice Robert’s past behavior as he navigates the terrain in the future.

John McGinnis (16:28):

Yes. It will constrain him, but I mean, as a rational actor, he’ll act in different ways, the constraints will be different. He’s differently constrained in the sense that he felt more constrained by the politics of the country, now he’s constrained as it were sort of by the jurisprudential positions of his colleagues. And so we have to take that into account.

Richard Reinsch (16:51):

You’ve written pieces on Law & Liberty, and you’ve just mentioned the idea of the median justice on the court, with Barrett’s addition, who do you think is the median justice?

John McGinnis (17:01):

I don’t think it’s clear yet. I think there are three candidates, I think the most and I’ll talk about them in the descending order of likelihood. I know the most likely is Kavanaugh, because I think he’s less committed as an originalist than Gorsuch. Now, of course, that doesn’t mean that even if that’s the case, that in every case there’ll be the median justice, we saw of course, Gorsuch in the Title VII Case, write the opinion for and regard as the liberal side of the court and Kavanaugh, was in dissent. I think we’re likely to see a situation more like the world where we saw when Kennedy and O’Connor were on the court. Where Kennedy tended to be the median justice, while on some issues it was O’Connor. For instance, on First Amendment issues Kennedy was much more strongly First Amendment oriented. And I think O’Connor was the center of the court. So I think that on some kinds of issues, Gorsuch may be the center of the court, more kind of libertarian criminal justice type issues. He could be the median, we’ll have a kind of a twin star as it were as opposed to a single star. And I don’t want to rule out the possibility that Barrett could become a median justice. I think people are too quick to suggest that Barrett, is going to be somewhere close to Thomas. I mean, I think that’s what you would probably predict somewhere where between Thomas and Alito, based on our votes on the Circuit Court. But there’s a lot of learning and I think it’s absolutely right that as hard justices change, even if they don’t change dramatically. After around five years on the court, they really don’t understand exactly the Supreme Court and how it’s working until five years. They don’t come comfortable with exactly their positions. Now, I don’t think we’re going to see Justice Barrett grow on the court, as it were like Justice Black when they moved to the ideological left of the court. But I think it’s hard to rule her out, becoming the median and that’s least likely of these possibilities, but I want to at least put it on the table.

Richard Reinsch (19:21):

I thought it was instructive last night, the content of her acceptance speech or her post confirmation speech, where she clearly contrasted the role of the legislator and the role of the judge. And she was very clear, she is not coming to be a legislator, and to enact any of her policy preferences. When you put that together and obviously her scholarship is significant here. And also the talk she gave in the now famous Rose Garden event, infamous Rose Garden event because of the spread of the coronavirus. She also was very clear there about the role of the judge and where she takes her bearings. It seems to me, this is just someone who very much takes seriously the judicial branch in our separation of powers, and the duties that a judge holds.

John McGinnis (20:08):

I think that’s right. Well, I think she has served the originalist views, I think she may have a more moderate temperament, than someone like Justice Thomas. Really, of course, his temperament is forged in all sorts of personal struggle with racism early on in his life, With the confirmation hearing, he faced the vicious personal attacks. That I think were you in a somewhat very hard edged character, I don’t really see that in Amy Coney Barrett. So I think he has a temperament that is likely to lead to more for want of a better word moderation, even while I don’t think we’re going to see some great balancing conversion to becoming a living constitutionalist or anything of that sort. But, so I do think those comments, both at the White House are indicative of that kind of temperament.

Richard Reinsch (21:07):

Yeah. Now, that Barrett is on the court and this has been in the air as you know, this idea of court packing, Biden seems to have reluctantly backed away from it. But I think it’s in the air. How do you see that working out? And what do you make of that as an originalist, the idea of adding four or five more justices?

John McGinnis (21:30):

I think as originalists, I think it’s legal. I mean, the only argument possibly against it, is the kind of necessary and proper argument while this is improper when Congress is trying to change the makeup of the court to change the decision. I think the difficulty with that argument is that it has been changed in the past. Although historians say it’s never really been successfully changed with the overt intention of changing the makeup of the decisions of the court was really mostly changed because of need for circuit riding, which of course we no longer have. Judges actually had to ride and go and decide cases way out in the Hinterlands if they needed more justices at times. But I think in general, I think an originalists has to accept that, that’s one of the safety valves as it were, or that the legislature has on the judiciary. Nevertheless, I don’t think court packing is very likely for a few reasons. I mean, you would think it was very likely to just listen to law professors, but of course law professors are not a real good indication even of Democratic politicians. I think there are three reasons that suggest that it’s unlikely. One it’s just very unpopular. The polling on it is extremely unpopular. I think it’s not likely to become more popular as people talk about it. So no happy face associated with it, there’s just a kind of risk. So that’s the first reason it’s unpopular. The second reason I think is Biden, whatever else, one thing, he’s been around a long time and he understands that you got to make priorities for your agenda. And for most Americans, even those who isn’t miserably unpopular, it’s sort of remote. I mean, not the law professors of course, but it’s not really delivering any benefits and could hijack his agenda that some huge fight about this. And the final reason I think is oddly enough, the Democratic strategy in the confirmation hearings. So you will recall that strategy, which I think was much more sensible than their strategy with respect to Amy Coney Barrett at the Appellate Court level, was not to attack her, or just talk about the dogma that speaks proudly within her. But to say, well, she’s a danger, and the court is a danger to the Affordable Care Act. Which is delivering all these benefits so much that I don’t really recall that at the vote on the Judiciary Committee, which they boycotted, they put up all these pictures of people, I guess they claimed the children who, but for the Affordable Care Act, whether to be dead or a terrible disease. So they put all their chips, and that maybe be a sensible electoral strategy because people with that at least is something people may care about, in a way that the abstractions on judicial philosophy for most people may leave them cold or uninterested.

But the difficulty is that I think most liberals and most conservatives think that there’s no chance that the Roberts Court is going to invalidate the Affordable Care Act, in the Texas versus California and California versus Texas cases. Having put all their chips there, once the case comes down, as I predict it comes down eight-one or seven to two, not to disturb the Affordable Care Act. Well, this is what they say is going to happen. And the worst thing that’s going to happen people are going to uphold the Affordable Care Act eight to one, seven to two. This court really, I think, takes the wind out of the sail of court packing, which after all, even with respect to FDR, came after a series of decisions that struck down key programs of the New Deal. So that’s another problem I think for court packing.

Richard Reinsch (25:25):

It seems to me with Barrett’s nomination, which went much better. I mean, I remember the day it was announced that Justice Ginsburg had died and I thought, wow, here we go. This is not what we need. And her confirmation went through, I think reasonably well. I think that’s obvious, but my sense there is we got the first instance sort of, of this wokeism actually in retrospect. Well, what happened to Justice Kavanaugh, was sort of applied wokeism, to leave any woman who makes a claim without evidence destroy someone’s life over it, destroy someone’s career over it, ostensibly. And it was ugly and vicious and we came away from that. I think most people came away from that thinking let’s not do that again. So I think in many ways, Kavanaugh paved the way for this rather smooth confirmation and also Senator Feinstein and Senator Durbin openly questioning Barrett during her Seventh Circuit nomination, bringing up her religious faith. And it was rather shocking, but it also had the effect of boosting Barrett to the top of the pile. I think in the White House for the next Supreme Court justice position, I’ve heard that there were coffee mugs given out “the dogma lives loudly within me,” things like that, kind of as a joke. So that all seemed to work in her favor. And I think the last thing that those opposing her really wanted to do was go after her in any sort of intense, vicious ways that they’ve done in the past to Republican nominees. So I take that as maybe a good indication of maybe these fights won’t be as vicious in the future or probably barely, just special in that regard.

John McGinnis (27:01):

Yeah. So one thing I think that made it less vicious was that it was right before an election, and the polling suggests that what the Democrats did with respect to Kavanaugh really hurt them at least with some Senate seats. And then really think about swing Senate seats. I think one has to understand it very much as in the connection of this selection, I’m less confident perhaps that we won’t see continual some other vicious confirmation hearing in the past. I think this was very situational as it were.

Richard Reinsch (27:31):

Thinking as an originalist, what is the Senate’s role regarding a nominee from the president? And in that regard too, was there something unseemly not just unseemly, but unconstitutional about what Senator McConnell and Republicans did to Obama’s nominee Merrick Garland? Many claim that taints all of the Trump nominees because of what happened to Garland. What do you say?

John McGinnis (27:58):

I don’t think there’s anything unconstitutional about it. The Senate’s advice and consent role, I think is quite clear that they got a majority vote and there’s no sense that there’s an obligation to give a vote anymore than there’s an obligation to vote on the president’s legislation. And that I think is clear as well, from the practice there are many nominees not to the court, although some to the court that haven’t gotten votes, but there are many, many nominees that never get votes or indeed get hearings. So that really isn’t a surprise and there’s nothing I think about the advice and consent clause that suggests there is some requirement to vote. The advice and consent clause, is what it suggests, which is a term of art actually, I once wrote about this, it’s not separate advice and consent. It’s really acting like a Privy Council to give us consent. And I see no indication there was anything unconstitutional about it. Now, is there some violation of Senate norms by not giving a Supreme Court nominee a vote? That’s I think a more complicated question. I think there’s certainly a good argument that McConnell has that the real issue here is just the question of majority. When majority party is of the same party as the president, nominees go through easily, when it’s not, they don’t. And that strikes me as really in some sense, the only enforceable rule, no other rule is going to be enforceable. My impression, I don’t have the numbers quite here is that in general, in the last president term, when the Senate and the president agree, there’ve been a lot of confirmations. There’s always a nomination and pretty much they’re confirmed. When the Senate and the president are of different parties. It’s rarely confirmed and that’s just what you would expect with politics. It’s necessarily a political element, and the framers contemplated of course, politics being part of government in the advice and consent practice. So I don’t see anything untoward. You might have a criticism, some criticism of the framers design, is that they didn’t understand how important the Supreme Court would become or maybe they did, but didn’t take account of the fact that the composition may become then therefore, so dependent on the accidents and deaths and retirement. And that I think is a serious criticism of the design and why I think there are plausible arguments that we should go to a 18 year term through constitutional amendment, in the future to make sure that we don’t have a structure in which by accident Trump gets three appointees, even if he’s a one term president and Jimmy Carter got zero.

Richard Reinsch (30:59):

On the new term or the term that we’re in, what cases come to mind, has significance potentially, and do you see Justice Barrett playing a pivotal role in any of those cases?

John McGinnis (31:13):

Well, I think the most important case is the one that Justice Barrett may play the most little role at. And I think that in my view, the most important case although it’s not the most important programmatic case for the Trump administration is the case I think called Fulton v. Philadelphia, a case at which a Catholic Service Agency is being excluded from placing foster children, because it doesn’t want to place foster children with same sex couples. And here it’s making some very large argument that, that’s a problem. And it wants to overrule a case called Employment Division v. Smith, which says that in general at least for religious based conduct so long as the law is neutral, you can’t get a religious exemption from it even if it does intrude deeply into your religious beliefs. As of course, Catholic Service Agency really could not have good conscience think of same sex couples in exactly the same way as it does married heterosexual couples. So you might say, well, that’s quite an important case. And the important case was it really goes, I think, on the front lines of our society. There’s a real question I think, given some of the other decisions. The same sex marriage decision and other social facts in our society, of whether religions with traditional views of sexuality will continue to play a role in charities that are connected as many charities are to the government. So I think it’s a hugely important case on the front lines of our society, as well as this case about overruling of Justice Scalia. So how do I think Barrett, may play into this?

Well, Barrett in a very interesting article on stare decisis, that I’ve already mentioned suggest that what I would call their passive virtues, let’s not overrule cases unless we really have to, I think is one of her sub-tasks of this idea. Can we find other way of addressing this matter? And I think in the Fulton case, there may be a solution for the court, which is the focus on well, what does it mean for a law to be neutral? Because it turns out that in Philadelphia has a lot of ability to give exemptions on all sorts of bases, to agencies that don’t comply with various rules. And it hasn’t given an exemption here to Fulton, it’s given exemptions to others on another basis not about same sex couples. And one might think that’s a bit of a problem that because of the danger.

Richard Reinsch (34:04):

What are those exemptions there? What do they allow other agencies to do?

John McGinnis (34:09):

Well, as I understand it and I’m not an expert on the exact statute here, is they allowed the sort of general waiver for agencies because of course it’s not a surprise because the agencies may want to waive things because they may think, well, this charity isn’t quite on our rules. But still it would be useful for us to make use of them because foster children and many other social problems really can’t be addressed without the full weight of civil society. And to be too persnickety about rules may undermine that, that’s not a surprise. I think that they have this broad authority, but you might worry that well, that allows them to pick and choose and really not be a neutral arbiter. And therefore this really doesn’t apply in those circumstances. So that will be a way of not overruling Smith.

Richard Reinsch (35:12):

I read that the city of Philadelphia contracts with adoption agencies that only place children at the same race and same race home, isn’t that itself a form of discrimination that they permit? And why would that be any different from say, a Catholic Social Services, we are only going to place children in heterosexual homes?

John McGinnis (35:33):

If I were arguing for the Philadelphia, I would say, well, that’s just not this case. You know, maybe that’s illegal and someone could bring a suit against us on that basis. But that doesn’t mean we can’t also-

Richard Reinsch (35:46):

I’ve read that, that’s like a general policy that they allow because within the world of adoption, this is actually a thing, particularly minority race children should go only-

John McGinnis (35:55):

I’m not aware of that, I mean-

Richard Reinsch (35:57):

That’s what I’ve read about this case. So that sort of opens up the door I think for your analysis is why I’m suggesting it.

John McGinnis (36:03):

I think, yes. I mean, I guess maybe that, another stronger argument to me is that they give discretion rather than they have other bad policies. Policy does seem to be very doubtful, but we heard oddly enough of course we heard about that in some contacts with respect to the adoption contact back there, Amy Coney Barrett, we’re one of the leading anti-racism professors tweeted-

Richard Reinsch (36:28):

Yeah, Ibram Kendi.

John McGinnis (36:30):

That her adopting black children was sort of a white savior colonialist mentality. So I agree that’s itself a very problematic, and we may actually see some litigation about that coming soon to the court.

Richard Reinsch (36:45):

So Fulton v. the City of Philadelphia and one could see her playing a role there. The two other cases which may go away if Trump loses, I assume Trump v. New York and Trump v. Sierra Club, but what’s happening there?

John McGinnis (36:58):

Well, in Trump v. Sierra Club is the wall case, right? So the wall case is a case about delegation of authority. There are statutes, and this is not that unusual kind of statute, which allows essentially the executive branch to reprogram funds for higher priorities. And these are military funds and Trump has reprogrammed them to build the wall. The argument is that he’s acting ultra vires, he doesn’t have authority under this statute. Now, in some sense, of course it’s an interesting case because it pits maybe some policy objectives, at least some conservatives against the view of the conservatives that there’s too excessive delegation. Then in other words, that we should tighten up on delegation. So this is an interesting case in that sense that it pits one sort of juris prudential or ideas about government versus at least some people’s views about policy wisdom. So I think that’s sort of interesting in that respect and I think may somewhat scramble and make Trump less likely to win.

My own sense is that there is a way of, even if Trump were to win for the court to get rid of the suit without even reaching the delegation question, because it’s not clear, the Sierra Club has standing to bring the suit. There’s a technical doctrine saying that, you only have a cause of action if you’re within the zone of interest of the statute. In other words, if a statute is focused on protecting your concern, of course, the Sierra Club’s concerns are aesthetic or environmental, and these reprogramming stats really are trying to protect Congress’s power of the purse. I think that may be a way of avoiding the larger questions, this case the lower court Trump appointed judge named Dan Collins went off very strongly on that. Because there really was no cause of action for the Sierra Club, because they were outside of the zone of interest. But I think you’re also correct that if Trump loses this case is likely just to go away.

Richard Reinsch (39:12):

Another case, big for administrative law, potentially a Mnuchin v. Collins. And in particular the Federal Housing Finance Agency, its director is immune from removal except on for cause basis. What do you make of this case?

John McGinnis (39:29):

I did the case, I think it’s easy to predict the outcome of the case. Maybe easier than any of the others we’ve discussed, because the previous in last term, there was a case of the Consumer Financial Protection Bureau or the CFPB. In which there was similarly a director who was insulated from removal and a court in a five, four decision held that, that violated the separation of powers. Because there was at least a strong presumption that the president got to fire people at will within the executive branch, at least in these high positions, in the executive branch, this is similarly a director. And so it’s distinguished from the cases where the court is upheld insulation of removal, which are boards, bipartisan boards like the FTC, the FCC, this seems to give up more concentrated power to someone who’s insulated from presidential control. So it’s very similar, the only difference actually is that the CFPB gets its funds from the Fed and the Housing Finance administration gets its funds from assessment on banks. I don’t see that as making much difference ultimately, what I think is interesting about this case is it will be yet another precedent for the presidential power over the executive. And it may start to isolate getting a lot more precedent, isolate these old precedents like Humphrey’s Executor, which allow the installation for removal. So I would not be amazed to see in the next five years arguments that those cases should be overruled as now being sort of outside the warp and woof of the law as being sort of left as isolated cases that really don’t match with the rest of the law. So I think that’s its big significance going forward.

Richard Reinsch (41:22):

Although and it occurs to me, that there is now I think a plurality of justices on the court that would call themselves originalists you’re a student, you’re a scholar of originalism. Do you see originalism continuing to grow and really begin to direct constitutional interpretive discourse in this country?

John McGinnis (41:48):

Well, assuming there’s no court packing, I do see it as having now huge influence and where it’s going to go is a little unclear. But I think one interesting aspect mostly it’s been driven now by scholars thinking about originalism, but now we’re going to see a lot more being driven by the court. And of course, as I’ve suggested, one of the big issues for the court is how to combine originalism and stare decisis. How to understand it in that respect and as well as looking at the original meaning of various clauses of the constitution. Now, scholars are going to also play a role because their brief and the briefs of people were informed by scholarship are going to make a bigger difference than they ever have before. So we’re going to get a kind of originalist culture surrounding the court. I think we have three strong originalists, maybe Kavanaugh is also an originalist I don’t think that’s yet clear. And we have people like Alito and Roberts who’re at least sympathetic to originalism if not full-fledged originalist. So should get an originalist culture on the court. There are two caveats. So one, is that for the first time it is very clear the Democratic Party has come out against originalism. I know we saw on the Senate floor, Senator Markey, he said, originalism is about racism, homophobia.

This is quite a striking development after all Elena Kagan, who is the last Democratic nominee said, “We’re all originalists,” at a hearing. I don’t think we’re going to hear many Democratic nominees saying that. And so unfortunately, a kind of a political polarization is coming even to constitutional theory. So that’s one caveat. And so we’re going to see a lot of pushback on originalism. The other caveat is the autonomy. I wish I could say that now with more originalist on the court that the legal academy would take originalism more seriously. I think the opposite is likely to happen because of developments in the university world. The legal academy is moving very far to the left and I think very much harder to get an originalist hired at a school. I would say for instance, 10 years ago, it will be plausible to have an originalist hired at my school. I do not think it is plausible at my school now. And my school is somewhat more conservative than most national law school. So that’s a caveat, we might not see the same kind of development by academics of originalist theory. There are of course now very vigorous originalists, but I think the pipeline for younger scholars is going to be cut off for some period of time.

Richard Reinsch (44:43):

It’s certainly interesting now, to think about and ways of working around that will have to be done. John McGinnis, thank you so much for joining us to discuss Justice Coney Barrett’s philosophy and the impact she might have on the court. We appreciate it greatly.

John McGinnis (44:58):

Well, I very much enjoyed it. Thanks so much, Richard.

Richard Reinsch (45:02):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk available at lawliberty.org.

How the West Was Lost Oct 15, 2020

Richard Reinsch: (00:04)
Today we’re talking with Stanley Kurtz, about a new book he has authored called The Lost History of Western Civilization. Stanley Kurtz is senior fellow at the Ethics and Public Policy Center. He’s a well known commentator on education, higher education, urban suburban policies. He’s also a student of the American left. He’s authored two books on Barack Obama, Radical-in-Chief, and Spreading the Wealth: How Obama Is Robbing the Suburbs to Pay for the Cities. We’re glad to have him on the program today to discuss something that seems evident to us now, particularly over the past couple of months, this lost history of Western civilization. Stanley, welcome, and what’s going on in this book?

Stanley Kurtz: (01:09)
Well, Richard, thanks so much for having me. And yes, I put out a book called The Lost History of Western Civilization. It came out in January. It’s a little bit unconventional, it’s actually available as a free downloadable PDF from the National Association of Scholars. It’s sort of a book-length report for the National Association of Scholars, so readers can actually get it just by clicking on the free PDF. And I put it out in January, and the book has a couple of themes, but one turns out to be surprisingly relevant to the turmoil the country is going through now. The first half of the book largely focuses on the destruction of the academic tradition of teaching Western civilization. And some of the intellectual critiques that were used to justify pushing Western civilization required courses aside in our colleges and universities.

For a long time, if you went to college, you likely took a course on Western civilization, and of course on American history, by the way. Those were very often required. And that was all pushed aside amidst great national controversy around 1987 and 1988. And the controversy was focused on Stanford University, there was a famous or infamous demonstration chant by the student protesters, “Hey, hey, ho, ho. Western culture’s got to go.” And once that chant was publicized, it really galvanized the national controversy. And one thing I do in the book is to dive into the argument which was probably most important for America’s scholars regarding this conflict. It wasn’t nearly as well known to the general public, but scholars, what are called deconstructionist historians and academics who were receptive to this skeptical form of postmodernism that we call deconstruction of history.

Those sorts of historians argued that the very idea of Western civilization was a kind of bogus, late invention, rather than Western civilization being a great long-standing, continuous cultural tradition coming down to us, from the Athens or Pericles, and from the biblical period, running through Ancient Greece and Rome and then the medieval era, and on into the enlightenment and modernity. These deconstructionist historians suggested that instead, the very idea of Western civilization was a kind of propaganda device, an invention created during the First World War to essentially hoodwink young American soldiers into thinking that they shared enough with Europe to make it worth their while to put their lives on the line in the trenches of the First World War. So this is a great example of what we mean by deconstruction of skeptical history.

And then in the second half of the book, I somehow segue from all that into a reflection on the ways in which this dispute over Western civ, and which gave rise to what came to be called political correctness and multiculturalism actually set the template for our politics today and to the constant accusations of racism and bigotry that we see today. Somehow these things are in fact linked. So that’s broadly speaking what the book tries to do.

Richard Reinsch: (05:06)
A question just apart from the ideas. Why Stanford University? Why was it ground zero for this attempt to remove Western civilization courses from higher education in America?

Stanley Kurtz: (05:17)
Well, that’s a great question, and the likely reason is that the demographics of Stanford in 1987 and 1988 were somewhat different from the demographics of colleges in most of the rest of the country. Stanford being in California had a relatively large percentage of minorities of various sorts, there were South Asian, East Asians, there were blacks, there were Hispanics in fairly large percentages. And these groups allied with strongly left leaning white students to form what they called a rainbow coalition. And they were taking their lead from Jesse Jackson presidential campaigns at the time. They were somewhat quixotic presidential campaigns, but they were a foreshadowing of what came later in the Obama years. They were a foreshadowing of we what we think of as campus intersectionality. And this was the coalition that chanted, “Hey, hey, ho, ho Western culture has got to go”, on a day when Jesse Jackson was actually visiting the school to help rally students in support of what would become his second presidential campaign in 1988. So Stanford in a way prefigured the rising diverse population that we see in our colleges and universities, and the ideology carried by that group.

Richard Reinsch: (06:54)
Thinking about Stanford at that time as well, specifically, it seems to my mind, what objections would you raise to learning about Western civilization? And you talk a lot about a certain scholar making this argument that it was put together during World War I to give the soldiers a fighting faith, to give the citizens a fighting faith, etcetera, something like that. But even then I thought, “Okay, maybe that’s the case.” You prove conclusively that it was not the case. But even if we assume that this person is right, one should still learn about aspects of your civilization, the fundamental ideas and history behind your civilization. Why would you not want to, and what were the arguments that they made?

Stanley Kurtz: (07:43)
Well, that is a really very interesting issue. And one of the things that I argue in the book is that the opponents gave an argument to the effect that Western civilization and the great books that belong to it are racist, that the study of it is racist. It’s racist in the sense that the West was a colonial power that oppressed people of color across the world. It’s racist in the sense that by focusing on so many authors who are “famously dead white males,” it’s racist. But what I argued in the book was that that wasn’t entirely the full truth of the objection.

I think the real reason for the objection to Western Civ was that it was powerful that it did teach us about ourselves, that it was a popular course, that students loved the great books. Because whether they agree with a given great book, author or not, the great books as a whole brought students into confrontation with the fundamental questions they would be facing in life, philosophical questions, questions about what they wanted to devote their lives to. And these courses were extremely popular. They were in fact the most popular courses in the school. Now, if you have a very, very popular course that is all about Western civilization, and if students there feel as though that is not really their heritage, they’re coming from outside, from Asia, or as far as I’m concerned, a black American is part of Western civilization and has every legitimate reason to be proud of that. But many black students in Stanford at the time felt as though they were identifying with Africa and their African heritage. So if you don’t feel as though you’re part of the Western tradition in the first place, and the Western tradition turns out to be tremendously popular and appealing, you actually experience that as an affront.

Richard Reinsch: (09:53)
This is at some level, and by the way, and we were talking about this before the call. I took a great books seminar on Western civilization. I have a very distinct memory of the last day of class of the students in unison, applauding. The last day, the professor, I think, in recognition of how excellent the course had been, and how much we had all learned. Things that we had no clue of before. But that was my freshman year, it was the first time I had read T.S. Eliot. So I think that’s exactly right on and what those courses were able to do and are able to do, where they’re still taught, which makes what happens in my mind, just insidious and dastardly. Question though, this is also our university’s rejection of the educational enterprise of the liberal arts. Hearing that, and you say that in the book that, “Well, this isn’t me.” Or, “These courses don’t reflect my heritage or my background.” But that’s the very idea of education, that it takes you out of that. One could also take courses in African history or something like that, but this in itself is to misunderstand what education is, it’s to turn it into an ideological enterprise.

Stanley Kurtz: (11:06)
Well, I think that’s true. And I think you can also put it another way, going back to the point I made about American blacks actually very much being a part of Western civilization. And in the book, I say that the same thing applies, say, to Hispanic students, and to almost any student who gets into, say, an elite college has already very likely, in almost every case, become deeply a part of Western civilization. And in the last part of the book, I look into some of the controversies playing out on our campuses. And I argue that in fact, they are very Western controversies, controversies about say whether you should use the word Latinx, instead of Latino. In other words, controversies over whether we should think of ourselves as part of a larger family, and part of a tradition about the family, or whether we should be such free individuals that we can almost create our own language, a language that completely respects and preserves the rights and independence of every individual with respect to their sexuality. That is a very Western sort of controversy.

And the students who attack the West don’t fully realize that the cultural politics that they carry is a descendant of the individualism and the great tradition of liberty of the West. Now, it may be, and I personally think it is the case that they’re taking this tradition to a dangerously radical extreme, and in that sense misusing it. But whether you think they’re going in precisely the right direction or not, I don’t think you can understand campus politics today in a deep way, without actually reading the great books of the West. And these students, even students who are of different races and ethnicities, are profoundly Western and could gain self knowledge by truly reading and learning to understand the great books of the West.

Richard Reinsch: (13:23)
Thinking about, and you make a nice point towards the end of the book, that those making these claims about gender identity would have to confront more… Okay, well, what about the claims now of community, or the accumulation of knowledge and tradition within a community and how one balances that out with individualism? All sorts of examples of intellectual challenges that would be good for them to have but which they aren’t having. Thinking about, so Stanford, you argue, and you’ve alluded to that sort of the epicenter of the higher education battles over the last 40 years. I mean, they sort of crystallize there. And there’s also, you talk about intersectionality. The term used before intersectionality, I hadn’t thought of this, was multiculturalism, and you argue intersectionality actually is a far better term, given what they’re arguing. Could you talk more about that?

Stanley Kurtz: (14:15)
Absolutely. One of the themes of the book is that the current standpoint of the left, although it is sometimes called multiculturalism, actually has very little to do with culture. I argue in the book that you probably could better call it anticulturalism than multiculturalism. If you actually look at the multicultural, or better the intersectional coalition as it operates on campus, a coalition that generally unites gay students with Latino students and black students and Muslim students. If you actually look at the traditional culture of some of those groups and contrast them, what you actually would have there was a group of people who would probably have a lot of clashing views and clashing perspectives. And so in order to hold a coalition, what you actually have to do is downplay the content of your culture, because that’s what differentiates you. And instead, you have to play up race. That is why the phrase people of color has become so predominant nowadays.

The idea of people of color creates a unification between these groups. And the other thing that unifies them, is the sense that they’re all being oppressed, oppressed by some kind of traditionalist Western, and from their point of view, white majority. And so the idea of finding oppression, finds the intersexual coalition together, and plays down their cultural differences. So we saw, for example, that recently at Stanford, you had a leftist coalition, an intersectional coalition. And they started to demand that the courses which would count towards the distribution requirements, as far as diversity goes, that those courses should only include courses that teach about oppression. And they should not necessarily include courses that teach about, say, the history of Chinese culture, or something like that. So culture is really not at the forefront of what’s going on here. Culture is actually being hollowed out.

And many of the students who come to school to begin with, as I’ve already noted, are actually fairly assimilated, and are not deeply steeped in their heritage cultures. And so what we’re seeing here are people who don’t actually have much of a culture, and their only sense of collective belonging comes from claiming to be oppressed. And that creates a tendency to want to balloon any tiny incident or issue that could be interpreted as oppressive into a massive, massive problem. Let’s say there’s a statue there you don’t like, that’s not nearly as much of a problem as the entire system of segregation was in the south in the 1940s and ’50s. But a statue becomes a kind of signal that, “Yes, I am oppressed, and we can all unite around that.” It’s pretty thin gruel, but it’s all we’ve got left to form a basis for identities in the current environment.

Richard Reinsch: (17:40)
A couple of questions come to mind. So you say courses on oppression as opposed to say positive courses on aspects of other cultures? Going back to 1987, what did those chanting, “Hey, hey, ho, ho, Western culture has got to go.” What did they want to replace Western civilization with in terms of courses?

Stanley Kurtz: (17:59)
Well, that in a way is the heart of the matter, they didn’t really have a very good sense of what they wanted to replace it with. And of course, we know that the problem of the left in general from the ’60s on, is that they have a much more enthusiastic sense of what it is they want to get rid of than what they want to replace it with. And we saw this playing out at Stanford, because when the traditional Western Civ requirement was swept away, first of all, very few of the junior faculty members who had pushed for that change actually proposed to teach a course in the new mode. It was supposed to be called culture ideas and values. It was supposed to essentially be a course about multiculturalism. And few teachers even made a proposal to do it. And the few courses that were actually taught along those lines, turned out to be confusing, incoherent, and ultimately very unpopular with the students. So the requirements collapsed. And Stanford has been lurching ever since they got rid of their very popular Western Civ and Western culture requirements.

They have been lurching from one set of required humanities courses to another, and none of them really had any kind of defining center, and they didn’t inspire the students in the way that the old courses did. And one of the things I argue in the book is that this stands for something larger, the people who are critiquing America today and the American tradition in the name of something, multiculturalism, intersectionality, whatever you call it, don’t really have a significant alternative. It’s not as though there is a society in waiting that has its own coherence and its own ability to unite us as a people that they are waiting to put in place of what we have now. It’s much more the case that what they have is chaos. We saw this in a miniature level on the campuses, and I’m afraid we’re facing this on the macro level today.

Richard Reinsch: (20:13)
You argue this incident at Stanford really illustrates the first use or very expanded use of the charge of racism. Obviously, a very powerful term. But you go back and you look at arguments that were being made against the western civilization course, by arguing that it itself was racist, even though there was no intention, nothing in the course that was meant to be racist. But because of the way it made someone feel potentially or challenged them, that that was racist. And of course, we see that now writ large all the time in the sense of well just American constitutionalism is racist, or capitalism is racist. And the Jews argue that that’s where it started, in that instance.

Stanley Kurtz: (20:58)
Exactly Richard. Right now, we actually see that in some ways the presidential race is turning around this idea of systemic racism. We see that Vice President Biden and Kamala Harris, both fairly straightforward and enthusiastic, and they’re used to the term systemic racism. And we saw this with most of the Democratic presidential candidates, and then President Trump has opposed this, and he’s ordered the federal government to stop teaching critical race theory. So we can almost at this point, if you’re young enough, take for granted the fact that an accusation of racism is something very broad, that it can be brought into almost any ordinary political policy difference. But in fact, this is not the usual, and it’s not what racism originally meant.

Originally, of course, it had more to do with people who believed in the genetic inferiority of a race and the fact that that was in their view, their bigoted view, have necessitated a kind of systematic segregation of the races. And so how did we get from the one point to the other? And I do think Stanford was a turning point. When the accusation is made that just teaching Plato and Aristotle is racist, and creates racist, then you’re beginning to get the first glimmers of a major public national argument, where the claim is made that something that doesn’t have anything to do with a direct intention of racism is in fact racist.

And what we saw at the time, if you actually go back to this period of the Stanford dispute in 1987, in 1988, we see that traditionalists who supported Western civilization courses were completely shocked by these accusations of racism applying to the great books, and Plato and Aristotle. And they called it McCarthyism. They called it a kind of McCarthyism. And they said, “This is an academic setting. We’re supposed to have a debate on the merits of how we construct a course here. And you’re using these high powered accusations when we’ve already said that we’re very happy to add books, by say, Simone de Beauvoir and Frederick Douglass, we’re very open to that. And yet, somehow you’re calling this course racist, and you’re calling us racist.

And this is a smear on the order of a McCarthyite smear, and not something that has a place in the academic setting.” And I think the irony is that now, that is probably the main thing that happens in an academic setting. That there are a whole academic disciplines now or sub disciplines dedicated to finding subtle forms of systemic or institutional racism in almost everything and everywhere. This has actually become the central stuff of academia, and it’s become perhaps the central dividing line in our politics. And so that is a very problematic thing. But again, as I argue in the book, it is ultimately a way of giving us a kind of substitute for the communal and religious meanings that we seem to have lost. It’s a way to give us a kind of collective cause to cling to, but it results in a lot of inaccurate global unfair accusation.

Richard Reinsch: (24:26)
Yeah, the systemic racism, it’s funny just before we got on, I was reading a story, the student life director at Berry College in Georgia was dismissed yesterday for denying that systemic racism exist. So it’s a very powerful term. And I wonder though, when people are saying this, is it to say that the very structures of America are racist. So therefore, at one level, obviously, there’s been a lot of racism in America. On another level, we’ve done a lot to eliminate any institutional ability to oppress people, particularly through government. But it’s almost as if when I say systemic racism, it’s because of this past racism therefore everything is systemic, or something like that.

Stanley Kurtz: (25:13)
Right. I think one problem with the whole charge of systemic racism is that it’s difficult to define. And one of the things I say in the book is that this was true as well of the term multiculturalism. In fact, I find some multiculturalists actually acknowledging that the term doesn’t have a fixed meaning, that it is in fact, in effect, a term that can be deployed by interest groups on behalf of whatever they want for contradictory goals depending on their political interest at a given moment. So at one moment you might get accused of being a racist for not acknowledging a cultural, racial or ethnic difference. And that the next moment someone might turn around and say the fact that you have highlighted a difference by race or ethnicity or culture means that you are a bigot. And you never know what’s going to hit you.

I think some people who are saying systemic racism, what they really mean is, “We’re socialists, and we don’t like the system.” And by slapping the word racism on it, they find a convenient way to scare people into not talking back to them. And if anyone dares talk back, that just the fact that they’re rejecting the racism accusation is a way of saying, “Well, then you must be racist.” So that’s one way it works, I think. And in another sense, people often look at any disproportion at all in economic situation, or any other kinds of benefits that can be observed statistically between different races, ethnicities, people of different national origins, it can be attributed to systemic racism.

It may on the contrary be that because of complex historical forces, and because of current cultural views, let’s say the collapse of the family which has particularly been strong in the black community, that might explain some of the differences in educational achievement, rather than racism per se. But if you say it’s all because any disproportion in statistics is because of systemic racism, you have a way of deflecting attention from the strengths and weaknesses of the cultures of different communities. And so it’s sometimes a way of just dismissing the claim that there is a cultural component to why some communities do better educationally than others.

Richard Reinsch: (27:42)
But in listening to you say that, and thinking about your discussion of the regimes of truth, it brings up some interesting questions too. So one way of dismissing say the teaching of Western civilization was to employ the post modernism, the deconstructionism, there is no such thing as culture. What could possibly be a civilization? you’re just sort of inventing things on the fly to justify what you want in this sort of business. And of course, in a way and now people argue, well, the problem is relativism on the left. They actually have a lot of moral certainty and objectivity about what they believe in. But it is the case it seems that though, and you make this point and thinking about it, there is sort of like a relativism always there that enables them to sort of justify as you try and puzzle through systemic racism. I was thinking, and just like the arguments we get for gender identity, it’s either hardwired or now we’re increasingly told it’s a choice. But in any event, it’s all good. And maybe you could tease that out a bit.

Stanley Kurtz: (28:49)
Absolutely, that is indeed another theme of the book that there is a kind of incoherence built into the postmodern critique, which simultaneously exhibits radical skepticism and at the same time, utter moral certainty. So for example, the work of Michel Foucault, the French postmodernist who is tremendously influential on our college campuses today, suffers from this incoherence. On the one hand, Foucault wants to argue that there is actually no such thing as truth, that what you call truth… Let’s say that your truth is that there is something called Western civilization, and that that is a great tradition and needs to be studied and understood. And he’s saying actually, no, that is not… He’s not saying it’s false, so much as that he’s saying, “That is your truth and your way of speaking, and that way is actually a technique to give you power and control.”

So what you’re really looking to do by speaking of Western civilization, is to get control and power over people who you call uncivilized. So I’m not even going to bother, I Foucault, about proving you right or wrong as to whether there is a Western civilization and what it consists of. Instead I’m going to analyze all of the subtle ways in which your talk of civilization is really a way of dismissing and demeaning others and giving you power over them.”

But then you turn around and see that Foucault who has thrown out the whole enterprise of trying to find what is true, is himself making a truth claim. He’s making a claim that people’s arguments about truth are really a way of grabbing for power. And that is a kind of moral certainty at the base of his way of thinking. And if you tease it out, as I tried to do in the book, you’ll find that that is actually coming from the great intellectual tradition of Western civilization. The Foucault in an implicit way, depends for his effect on our outrage at the idea that someone would be trying to grab for power over a weaker and oppressed group. And that touches on our basic, classically liberal belief in liberty and equality-

Richard Reinsch: (31:29)
Justice.

Stanley Kurtz: (31:29)
… and all of the ideas that Americans hold dear, but that Foucault says are a bunch of nonsense. So he simultaneously is exhibiting a very Western way of looking at things at the very moment that he is trying to say that it’s all nonsense.

Richard Reinsch: (31:44)
Yeah, I was thinking as well the relativism you’ve already cleared the ground, and okay, so there’s nothing left. And yet man needs meaning, man needs purpose, some sort of direction. And that racism sort of was still there. Still one thing that a lot of people agree on as wrong. And that sort of fills a power void, an existential power void in people’s lives, particularly on campus, and becomes sort of this guiding ethos for how to organize campus. And I was thinking recently, Glenn Loury has been very strong in the past few months in speaking out against a lot of these claims. And he opposed his own Brown University where he teaches, which issued a letter basically signing the university off on a social justice mission. And he argued that this is completely at odds with the ethos at the university. But then you kind of argue with this, there’s all sort of flows from it’s the relativism dialectic turning into certainty around this one thing of race.

Stanley Kurtz: (32:47)
Absolutely. One of the things I argue is that morality in general, used to turn around the idea of personal sacrifice on behalf of a community that was larger than yourself. So you will sacrifice on behalf of the family, of the neighborhood, of your religious community, of your nation, or of your civilization. And in the current mode, many of those communities have broken down, and we’ve become much more atomized as individuals. And that stands behind this comprehensive sense of skepticism about larger narratives of history and community. It really is the energy that feeds all of the skepticism.

But as an atomized individual, one of the few things that you have left to believe in, is your individual freedom. You may no longer connect that freedom to this great Western tradition and this great American tradition flowing from the declaration and the Constitution. You now find those unbelievable and unpersuasive, and yet somehow, as an individual, you simultaneously and in a contradictory way, feel outrage about anyone trying to step on your rights or to oppress you and take away your freedom. And so the one thing that can bring you into unity with others, into some kind of at least temporary community is a crusade to fight against oppression.

And that means that the only way to find larger meaning in your life is to find oppression everywhere. If there is no crisis of oppression, then you are an isolated atomized individual who no longer even believes in your own country or civilization. But if you can find oppression somewhere, even if it’s only coming from an inert statue, then all of a sudden you can galvanize a protest group and have meaning and excitement in your life.

Richard Reinsch: (35:04)
As I read your diagnosis there, which I largely agree with, I read your book, I finished it yesterday. And it filled me with great sadness, and almost pessimism because that those underlying problems are only getting worse. And sort of the people separated from community, from family, from their history. I mean, obviously, we haven’t really taught our young people much history. And so if that’s true, then those underlying factors get worse than the turn towards the anti racism continues to grow and metastasize.

Stanley Kurtz: (35:35)
Well, that’s right. And I’ll give you a pessimistic and an optimistic take.

Richard Reinsch: (35:40)
Okay.

Stanley Kurtz: (35:40)
The pessimistic take is, and we touched on it already in this conversation, that what divides us is not belief in two coherent alternatives, which could somehow be compromised, or even with the triumph of the new way could somehow build a new and coherent society. Really, we’re dealing with a contrast between the traditional American sense of citizenship on the one hand, and a critical perspective that has no real coherent social or cultural alternative to provide. And without that, one has to be very pessimistic about the future. At the same time, on a more optimistic view, I have argued that although it’s contradictory and incoherent, there is still something profoundly Western about the critics of our traditional American system, about the people who have fallen away from it. And that it’s possible that they might be able to recognize this and understand their kinship to the various traditions that they have rejected. And if that begins to dawn on people, I think it creates a basis for some kind of reconciliation. Because the truth is we are all still very Western and American. And it wouldn’t be that difficult, if we wanted to recognize that our founding principles, and the great tradition of liberty developed in the West is actually something that unites us. That we’re fighting over conflicting interpretations of concepts that we still hold in common. And that I think, is the possibility that just might save us.

Richard Reinsch: (37:29)
In this regard too, it’s been interesting talking to another of academics teaching Frederick Douglass, or Martin Luther King, and being told by students that this is sort of ridiculous. That in a way they were playing right into the white power structure with their arguments, and why would we even need to learn this? And I guess that also fills me with pessimism, because if there are bridges to bring these two perspectives into conversation with one another, surely it’s someone like Frederick Douglas and his background and experiences and then appealing back to the Declaration of Independence and the Constitution to try and show the goodness of America. And that course just being rejected outright, that also a bad sign, to put it mildly.

Stanley Kurtz: (38:18)
Well, that’s true, but I will say this is not an entirely optimistic reply, but it is a reply of sorts. Remember that the ’60s at their height had a kind of collapse. There was a collapse there. Eventually, the hippie communes broke up, and the druggies sort of overdosed and snapped out of it. There was no real place to go from the ’60s. Yes, it seeped into our culture since then. But the ’60s was never able to build a coherent alternative. Similarly, the French Revolution collapsed. Now, there was a lot of struggle and strife in France for a long time after that, before they came back to a stable resolution, but I don’t think the current situation is going to lead to a stable alternative. It’s going to collapse of its own extremism. We’ve already actually seen perhaps a glimmer of that. When you see the unprovoked murder of these police officers, and then demonstrators trying to block the hospital saying, “I hope you die.” This is the sort of thing that is already I think, probably beginning to snap people out of it. Where you look at Minneapolis, where now they’re beginning to worry. They started to say they were going to disband their police, and now people are complaining-

Richard Reinsch: (39:36)
Where are the police?

Stanley Kurtz: (39:36)
… there are no police. There’s nowhere to go from this perspective, and they’re going to hit the wall, and then people are going to rethink.

Richard Reinsch: (39:45)
Yeah. That was sort of my next question, is what sort of community can one build within an ideology like intersectionality. Some of it is made of these dynamics that we saw say in the French Revolution, the Russian Revolution, where the most radical group wins. But what was actually won, and what could they actually build?

Stanley Kurtz: (40:08)
I think that’s true. Although now to switch on to the pessimistic side, I think that’s true but when you look over Russia, you see that they were able to sustain this unsustainable for 70 years, and they haven’t done very well for themselves since then, either. So I do think America has deeper resources culturally than that. We have a larger bank of cultural capital, so to speak. So I don’t think we’re necessarily quite as badly off as Russia was. But you never know when will you have one of these unsustainably radical perspectives knocking down what has been built with such care, you could have a situation as say in the ’60s where things turned around, and we actually got in response to the ’60s, a period of relative conservatism, at least on the political level if not the cultural. You could have a relatively quick turnaround, because America has good cultural resources, but sometimes you can have a long period of an essentially untenable situation, which only collapses of its own weight after a long time. And it’s tough to say what the future holds. As Yogi Berra said, “Predicting is hard, especially the future.”

Richard Reinsch: (41:20)
The future takes a long time.

Stanley Kurtz: (41:22)
Yeah.

Richard Reinsch: (41:23)
Final question for you is just higher education, the future of it? And I think, particularly in the light of the last few years, is there a future for humanities in higher education in an authentic sense? To my mind, if there is it would require pretty extensive federal government action to bring it to bear and actually return it to what it was or what it could be.

Stanley Kurtz: (41:51)
I think there’s a place for federal action, particularly cutting money, and maybe some other things as well such as campus free speech legislation. But I make an argument in an essay that came out a couple months ago. In the American mind, I kind of lay out a broad strategy for how to take back the academy. And I actually think the largest task falls back on ourselves. There is actually, I would argue, a majority of Americans at this moment who are unhappy with the academy. This includes not only Republicans, but many independents, and many moderate Democrats. The problem is that they aren’t organized.

This is a classic case where a particular interest group, the people within the academy itself, and they have a very large and powerful lobbying arm, exercise disproportionate power, because the general public is not activated and organized. What if there was a lobby group, like the NRA on the right, or NEA on the left? What if there was a lobby group in favor of reforming the academy? If there was such a group, and millions of people signed up and gave in their membership fees, and then the leaders of that lobby could walk into state legislators and Congress with those legislators knowing that whether they go the way that this person favors or doesn’t favor, means letters going back to a very large national membership, saying that this person is in favor of shutting down free debate on college campuses, or this person is trying to help us, then I think that the dial could move. And we haven’t even tried to do that, haven’t even realized that we need to do that. So I lay out a number of ideas like that in this article. I think it’s possible to win, but we’ve got to get a better strategy and I try to lay one out.

Richard Reinsch: (43:46)
Well it’s interesting. I look forward to reading that. Stanley Kurtz, thank you so much for joining us. We’ve been talking with the author of The Lost History of Western Civilization. Thank you.

Stanley Kurtz: (43:56)
Richard. Thanks so much.

Richard Reinsch: (43:58)
This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

Dan Mahoney Announces the "Liberty and Justice for All" Project Oct 12, 2020

Richard Reinsch (00:04):

Today, we’re talking with Dan Mahoney, one of the principal founders of Liberty and Justice for All, a new statement and declaration of the right kind of unity about American citizenship and education and constitutionalism. We’re going to let Dan tell us more about that. Dan is a frequent guest of Liberty Law Talk, and we’re glad to have him on. He’s the Augustine Chair of Distinguished Scholarship at Assumption College. He’s the author of a number of books, including The Idol of Our Age: How the Religion of Humanity Subverts Christianity. He’s also the author of The Conservative Foundations of the Liberal Order and The Other Solzhenitsyn. Dan, glad to have you on.

Dan Mahoney (01:05):

Delighted to be back, Richard.

Richard Reinsch (01:07):

So last time we were talking about CHAZ which then became CHOP, Capitol Hill Organized Protest in Seattle. We were discussing how the city government of Seattle could allow, in effect, 10 blocks or so of its city to be taken over by Antifa, various thugs, left-wing protestors, who we now know worked a great deal of damage. And so we know this was a microcosm effort of a lot of problems and unrest and unsettlement in our country. And we talked a lot about that. You’ve now become a part of an effort which I’m also a part of called “Liberty and Justice for All.” Maybe tell us about that.

Dan Mahoney (01:51):

Yes. We published an open letter with 173 signatories. The founders of the effort were myself, Mark Mitchell at Patrick Henry College, Jeremy Beer publisher of The American Conservative, and Joshua Mitchell the Tocqueville scholar at Georgetown, who has a book coming out from Encounter this fall called American Awakening which is actually about the tyranny of despotism. We all consulted after I had published my essay on “The Culture of Hate” at RealClearPolitics around the 4th of July. My colleagues contacted me and said, “We need a concerted effort to speak up in defense of American principles and institutions and against this nihilistic violence and mayhem.” We were all I think, stunned by the fact that this open assault on our history, on our institutions, on the symbols of the American Republic, on our Western inheritance was being met by so little resistance. The Republican Party was acting as if this was just business as usual, this too shall pass. Trump was really the only one speaking up most notably in his very powerful Mount Rushmore address, which was uniformly attacked by mass media. So we put our efforts together and we decided our best approach was to write an open letter to our fellow Americans laying out in bold, but spirited, but nonetheless thoughtful arguments, to weigh exactly what is at stake if those who are committed to the destruction of the American heritage win. And that’s what we did.

We laid down the fact that this movement is destructive and not constructive. That it’s not dedicated to reformation which depends on conservation, but is instead dedicated to a full scale assault on America. We also, I think were particularly concerned by the way in which admirable aspirations and principles were being used, especially facile and ideological appeals to justice and inequality. And I should add we were deeply concerned by the iconoclasm the tearing down of statues, the efforts to cancel Lincoln, Frederick Douglass, Junipero Serra, the great saint in California, the ignorance of the mob as they tore down abolitionists and anti slavery people. And we were, I think, deeply concerned about la trahison des clercs, the betrayal of the intellectuals, either at worst endorsing and vigorously endorsing this madness and nihilism and at best simply excusing it, so that was the genesis of our effort.

As I said, we had 173 signatories, many very distinguished people, including yourself from a wide range of backgrounds, many conservative, some liberals, many among what I call the unclassifiable people who are not easily ideologically classified. And since the publication of the letter, in RealClearPolitics about 10 or 11 days ago, we’ve had 1,000 people sign on and about another 1,000 who can’t sign for one reason or another, given the power and intimidation of the cancel culture, but who want to be on our mailing list and implicitly, I think endorse our aim. We want this to be an ongoing effort. We’ve followed up with a series of op-eds by Dr. Mitchell, myself, Mark Mitchell, Roger Kimball, and you’ll have a piece on the nature of despotism. Roger Kimball has a piece on the subversion of American education. So we want this to be an ongoing effort as you said, in defense of constitutionalism, the rule of law, and of the fundamental nobility of the principles that underlie the American proposition.

Richard Reinsch (06:25):

Where can people listening right now, where can they find this, the statement and sign up and make their-

Dan Mahoney (06:31):

Yeah, you can sign up and don’t be concerned if your signature doesn’t show up right away. We have to verify to make sure there’s not spam and that kind of thing. You know, people can write anything down. So it’s not an automatic process, but if you sign it and you’re committed to it, your name will appear once everything is verified, you can go to the Real Clear Foundation, do a Google search, Liberty and Justice, open letter Liberty and Justice For All.

Richard Reinsch (07:29):

Realclearfoundation.org, I think is the website. That’s certainly where I found it. So thinking about future goals, building something of a movement, what are future plans, things you want to do?

Dan Mahoney (07:41):

Well, right now, we’re concentrating on the series of op-eds that develop and clarify and move forward the ideas and inspiration of the letter. I think that will continue for a while. We also envision putting together a series of conversations, perhaps where the signatories of other letters that take a different tack opposing the cancel culture and the new liberalism but I think I know of one such effort that concentrates in higher education. Of course there’s the corporate letter, I’m not sure if their signatories will want to talk to us but we want to talk to them. We have one common signatory, the admirable, independent, black linguist, and intellectual, John McWhorter.

I should add, we’ve also partnered, this was this letter was co-sponsored by 1776 Unites. One of our organizers and initiators, Joshua Mitchell is on the board of 1776 Unites. He’s very close to Robert Woodson. 1776 Unites is a group of mainly African-American intellectuals. Robert is a bit of a community organizer in the best sense of the term, but who are committed to American principles to the constructive, and salutary, and truthful role of religion and to the hope inherent in the black experience, and then the American Republic, the American proposition. A wonderful group of people, John McWhorter, Wilfred Reilly, Carol Swain, John Ward, people around Robert who really challenged this narrative that American principles offer nothing for black men and women, or that Lincoln is a dreaded racist who needs to be canceled, or that there is no hope and that blacks are simply victims without agency, and that the majority population in this country are simply white supremacists and oppressors who are beyond redemption. So I think that a prominent crew of both very gifted and serious African-American intellectuals are working to unite the American people to see how the principles of ’76, should bring all of us together to be a source of constructive engagement, moving toward a more dignified future while building on what’s noble in our principles and in our past, while being fully cognizant of the injustices that mar the American experience. So that collaboration with 1776 Unites is very important to us. I believe our letter is also available on the 1776 Unites website.

Richard Reinsch (10:36):

You mentioned in the letter the signatories’ concerns about free speech being eliminated largely through cancel culture. It occurs to me the First Amendment could be nullified without it being repealed if cancel culture continues because of just the self-censorship that will occur. Representative government, you mentioned that, being sort of undermined as debate becomes difficult, and as these very drastic measures are constantly asserted to be the only way certain institutions like city councils can deal with difficult issues like police reform as in defund the police. And then also you mentioned federalism, market commerce, education, family, and religion.

I want to talk briefly on market commerce, just because of the centrality that that’s played as you know, in conservative thought throughout or since the post World War II period. And then the incredible weight that it had after the Cold War. You mentioned two problems in this which will be well-known to our listeners. The threat of crony capitalism, where those who are entrenched in power can use that power to make more money for themselves but foreclose opportunities to others. But you also mentioned woke capitalism, and I thought that was apt and correct, but we’ve got these two problems here, woke capitalism and crony capitalism. What does that mean? Or how should conservatives think about the market in light of the challenge whereby corporations whom we’ve always largely been friendly towards now seem to be actively working against not only conservatism and the causes that they support, but even perhaps the country itself, eating away at their own foundations, it seems to me.

Dan Mahoney (12:29):

Yeah, I’m a great admirer and I think you are of the writings of Irving Kristol and to a lesser extent, Wilhelm Roepke. And there’s this conservative, liberal defense of the market that both men articulated in the ’40 and ’50s for Roepke for ’60, ’70s, and ’80s with Kristol. It made the point that the market economy is not self subsisting. It depends upon the bourgeois virtues. It needs to be instantiated in a political order which is a commercial republic, it depends on virtues that it sometimes undermine. So this is why Kristol famously in his 1978 book called for Two Cheers For Capitalism. Not because he thought the market mechanism was inefficacious or should be replaced, but because market efficiency when liberated from the larger republican order that grounds it and forms it can be self-destructive, and I think we see that with both crony capitalism, which is really something in a different language and somewhat different form, something that Adam Smith warned against in the Wealth of Nations.

Richard Reinsch (13:46):

Yes.

Dan Mahoney (13:47):

That he was never more nervous than when merchants were conspiring against the public good. And woke capitalism, I think is a phenomenon that is tied to corporate capitalism as Irving Kristol pointed out has always been a problem, it’s not that it doesn’t serve productivity and economic efficiency. And I think you’re right that classical liberals and conservatives in America have defended the corporation against demagogues and criticisms, and we were right to do so.

But on the other hand, when corporate capitalism simply ignores all the other goods that inform patriotism, the family, tradition, that inform what’s serious to liberal republican order, when corporate capitalists try to buy off socialist demagogues, or also promoting the moral dissolution of civil society, I think these people have to be actively opposed . This is an old phenomenon, many an anti-totalitarian has quoted Lenin’s famous line about the capitalists giving us the rope to hang them with. There’s a long line of history of how Wall Street and corporate capitalists appeased or tried to do business with the Soviet Union, Nazi Germany and this kind of thing.

I think we see it today with the People’s Republic of China, we see it with the NBA in China. So our manifesto, our open letter is unequivocally in favor of the principles of the commercial republic, of the viable right of private property, of the indispensability of the market to both liberty and the prosperity of the American people. But yes, we do see the capitalist class complicit in the moral and economics divergence of the American Republic through both woke capitalism, but also crony capitalism. A desire in a way to do an end runaround the market, through the politicization of economic life. So I think when we wrote this letter, we were very careful to add those two because we’re putting together a coalition of independent minded people, none of whom are committed to, or naive about socialism or Marxism, and many of whom see these problems with not so much, I would say the economic order, as the culture that has come to replace the old bourgeois values and virtues. So it was important for us to say that, I think.

I think a defense simply in private property in the market against socialism would not have satisfied the majority of our signers because our moral situation today is quite complex. And I think a fulsome defense of the market and the commercial Republic has to take into account these real problems.

Richard Reinsch (16:59):

I wanted to ask you just briefly before we got on today, I was reading and my friend Phil Magness pointed out and he’s been following the 1619 Project that The New York Times, and he’s caught them red-handed with screenshots, evidence that they’ve surreptitiously been editing the 1619 Project. To take away some of the more strident claims, false claims that they made at the beginning of trying to move away from saying that 1619 was the beginning of our country, which was their first claim. And also moving away from this idea that America separated itself from great Britain in order to bolster the institution of slavery.

Dan Mahoney (17:46):

Not only an absurd claim…

Richard Reinsch (17:47):

Not only an absurd claim but they… So we’ve got The New York Times, the paper of record, editing its own website without telling anyone, which is to the extent that there are ethics around online journalism, if you make any substantive edits, you’re supposed to draw attention to it, they did not. And then we’ve got the Black Lives Matter movement on their website, basically taking down their claims that they want to abolish the nuclear family, as well as Marxist-inspired language about business, etc. removing those from its website. And I thought to myself, is that an indication already of some good news for us, for those of us who are trying to repel this movement that they’re editing themselves, surreptitiously taking off these factual errors and ideological claims that most people think are bogus already, an indication that they’ve overshot the mark?

Dan Mahoney (18:40):

Well, they did overshoot because they engaged in what the political theorist, Gerhart Niemeyer once called a total critique of the West and a total critique of America. And total critiques are always tied to totalitarianism because total critiques, demand negation and destruction. So they did overshoot and people have begun to notice. Now, I don’t for a second believe Nikole Hannah-Jones and the ideologues as the participants in the grievance industry around her have changed their minds at all. It’s just that they are worried that their project will be less the source of a new orthodoxy if the more egregious ideological claims remain. But look, when Charles Kesler early on during this revolution published a piece in the New York Post called “The 1619 Riots,” Nikole Hannah-Jones, tweeted that she was proud of that. In other words, this is the same woman who said when we destroy property we’re not committing violence.

We know the amount of property damage and the violence that accompanies that, it is a form of violence but other even more incendiary forms of violence accompany it. They are stepping back a bit I mean again, the trained Marxists, the ideologues who inspired and lead BLM are still trained Marxists, are still committed to the deconstruction of the family, still hate capitalism, still believe in an ideological Manichaenism where blacks and LGBTQ people are all innocent by definition and forever, and where whites and others I suppose Jews are forever guilty. So nothing has changed. But I think after four months of audacity, violence, mayhem, and the utter silence of the political class and of the Democratic party, a good part of the country is waking up. You could see it in the declining support down from 66 to 44%, I think for BLM, people are now making distinctions we made four months ago between an affirmation that all black lives matter and all lives matter, and the claims of the BLM movement.

So I think we’re in a better place now, even than when I wrote my “Culture of Hate” piece in July or late July I felt very alone and I really was stunned by the whole silence of the conservative political class, even more so the Republican party. And I think people are beginning to see, and they’re beginning to see in part, because the idealogues push so hard so quickly, so boldly, so nihilistically that it’s almost impossible not to see despite the censorship by the mainstream media. You know, if you just watch MSNBC and CNN, you would not know that our city was on fire. You simply wouldn’t know.

Richard Reinsch (21:54):

Though the mendacity there, they’re lying and they’re covering up as many people have noted, you’ll have news anchors with fires raging in the background, where they are reporting insisting that this is a peaceful protest or a largely peaceful protest.

Dan Mahoney (22:08):

By the way, I think that term mostly peaceful protest has become-

Richard Reinsch (22:12):

It’s ridiculous.

Dan Mahoney (22:13):

I think people know that mostly peaceful protests include a lot of willful destruction and people have died. Many people have died and many black people have died as a result of this. That’s the dirty little secret about BLM and of course Antifa, they don’t care about black lives. They care about useful black lives who they can appropriate, whose deaths they can appropriate to promote revolution, a revolutionary situation, but for the people who are killed by black on black crime or by ideological thugs, or this man who was just driven to suicide after being charged for defending himself against the mob. They don’t care about any of these lives. I think people are catching on that we’re dealing with the term and radical revolutionary nihilistic movements and not movement for justice. And that took a long time for much of the country to discover.

Richard Reinsch (23:20):

I wanted to ask you, you know a lot of people listening to us are younger academics, certainly we have journalists, people working in Washington. Some of our biggest cohorts of listeners are in larger cities, New York, LA, Chicago… people concerned about this, but at the same time feeling in the environment that they’re in pretty alone and afraid of voicing it. What would be your counsel to them to at some level to push against this identity politics, and its attempt to remake institutions, including institutions they may be in. Whereas we see though there are not a lot of concrete demands right now coming out of identity politics, other than the sort of these things like defund the police. But there’s this claim I think as you know, within these institutions, that institutions themselves are corrupt, even though no one is actively racist inside of them.

Dan Mahoney (24:23):

Yes. I mean, look, I don’t want to go so far to say as I’ve given up all hope for our university, but I think the situation in the vast majority of our universities and colleges with a few notable exceptions is beyond lamentable. I think the culture of political correctness is dominant. I think that administrators are foolishly taking new initiatives that whose practical effect is to ratify and instantiate something like critical race theory as a powerful ingredient to the self-understanding of these colleges and universities. I know at my college, the president after George Floyd died decided to have a conversation with recent graduates and present students and a group of radicals highlighted my department, the department of political science, which I think is the only department at the college that teaches and reflects on the civic grounds of human dignity.

And yet, because we taught Lincoln and Frederick Douglass and etc. and defended the American founding against calumnious charges that it was a racist or that it was a Republic only for white people that we were singled out for teaching the wrong thing for not being on board with racial and social justice, sort of vague accusation of fascism. I had a student in my class I taught last semester on politics and literature. I did the Russians Solzhenitsyn and Dostoevsky and I was accused of not being balanced in my treatment of revolutionary terrorism and totalitarianism. They can’t make this stuff up. So I have deep sympathy for younger faculty, their internal world, where even the freedoms, and civility, and bright prerogatives that I could appeal to are in the process of either being abolished or disregarded. So I think the project of the future has to be to do an add on to existing institutions. I’m not sure mainstream journalism is reformable, I’m not sure the university is reformable. I think we have to think seriously about a new model of the university that plays by different rules that is committed to liberal education and not ideology, which is not accredited by the existing accreditation agencies.

It’s going to be a long-term effort, but it’s got to begin now because otherwise, I mean, look in 15 or 20 years, people might like myself and in three years won’t have a place in the university. We’d never be hired and we’d never be tolerated. I mean, this situation is just that grave. So with the younger people look, I think we have reached an existential moment where one has to decide whether or not you will live by lies in the famous words of Solzhenitsyn, something Rod Dreher writes about in his new book doesn’t mean you have to scream the truth out at every meeting, or you have to make yourself a martyr, but just like in the Soviet Union, even under Brezhnev. Do not sign statements you don’t agree with, do not endorse critical race theory. Do not lie about the American founding for the sake of survival. Do not pretend to be enthusiastic about thuggish, ideological moves. Show some backbone.

Richard Reinsch (27:54):

I think that’s really a crucial distinction. You know, listening to someone blather on is one thing and thinking about how one opposes them. But I think that’s the crucial move is, do you sign things or admit to things you know are a lie in order to survive? And I think those listening have to make that decision because once you admit to that lie, you lose your witness.

Dan Mahoney (28:16):

You lose yourself.

Richard Reinsch (28:17):

Yeah exactly.

Dan Mahoney (28:18):

And you lose your self respect which is a part of losing yourself. I mean Solzhenitsyn in his great manifesto “Live Not By Lies” 1974, he says, “Let the lie come into the world, but not through me.” At the end of it he quotes Pushkin. He says, “Look, if we’re not capable of this elemental step of not being a vehicle for a lie…” Then he says, “We’re no better than sheep. We’re no better than cattle who are made for servitude.” So we’re not facing full-fledged totalitarianism, although this is more than Tocqueville’s soft despotism. It’s harder than that, but it’s going to demand civic courage. It’s going to demand people who hallow the arch of prudence, do what you have to do so you can remain a presence in the Academy, but do not become a vehicle for the perpetuation of organized mendacity.

Richard Reinsch (29:24):

Exactly. Well, Dan, thank you so much for coming on to talk to us today about Liberty and Justice For All available at realclearfoundation.org, where people can read the statement of principles that you’ve put forward and decide if they want to sign or indeed send contact information to become part of, of what you guys are doing.

Dan Mahoney (29:46):

Can I just add if any listener, intellectual, professor, writer, politician is interested, feels committed to these ideas but has some ideas about how we can move forward in constructive intellectual ways, do not hesitate to contact me at Assumption College or the other organizers because we welcome ideas and ideas for new initiatives, ideas for carrying this forward.

Richard Reinsch (30:16):

Thank you, Dan. All right.

Dan Mahoney (30:16):

Thanks so much, Richard.

Richard Reinsch (30:18):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk available at lawliberty.org.

Losing Washington Oct 01, 2020

Richard Reinsch (00:18):

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Richard Brookhiser about George Washington and our present troubles. Richard Brookhiser, we’re glad to welcome him back to Liberty Law Talk. The last time he was on, we discussed the book he wrote on John Marshall, and he’s the author of numerous books on central figures in American history, on Marshall, Abraham Lincoln, James Madison, George Washington, among many others. Many of you will know him as a senior editor and writer for National Review, where I learned he’s been writing since 1977 when he graduated from Yale. He authors the column City Desk and Country Life. He’s the recipient of a Guggenheim Fellowship and of a National Medal of the Humanities. Richard Brookhiser, thank you so much for joining us.

Richard Brookhiser (01:06):

Thank you, Richard, for having me again. Always a pleasure to talk about George Washington.

Richard Reinsch (01:11):

Great. Thank you. I was thinking about our podcast and it’s not just George Washington. Many figures, Ulysses S. Grant, one that comes to mind. Also figures who are abolitionists.

Richard Brookhiser (01:24):

Yeah.

Richard Reinsch (01:24):

Who you would not think their statues would be torn down or desecrated in various ways. The famous commemoration of the 54th Massachusetts Regiment, the first Black regiment, was also; their memorial was desecrated in Boston recently. So a lot of this is happening and we can talk more about that. But it occurred to me, as we as conservatives, as unabashed patriots of America, have no problem defending these figures and we’re sort of puzzled as to why this is happening. Or I think we know why it’s happening, but it still puzzles us. Of course, this also presents trying to have a conversation with people who don’t want to have a conversation, obviously. But it occurs to me, maybe the emphasis is on the wrong foot, and we keep thinking about Washington and all of his contributions. But maybe from the standpoint of who we are in our present condition as Americans, are we worthy of a man like George Washington?

Richard Brookhiser (02:23):

Well, that depends on us, right?

Richard Reinsch (02:26):

Yes.

Richard Brookhiser (02:26):

And that always has to be figured out in every generation. I think Washington did an awful lot, and we can go over the record. But he died in 1799, and he can’t live our lives for us. He could help make structures and precedents that will be helpful to us, and I believe he did that, but we have to make use of them or not. It’s up to us. History never gives guarantees.

Richard Reinsch (03:03):

When you hear the senator from Illinois, Tammy Duckworth, say now she’s open to a conversation of removing statues of George Washington from federal properties whenever other statues have been toppled, what comes to your mind there? Is there anything beyond just rage at America, or is there something specific about what George Washington represents regarding the founding?

Richard Brookhiser (03:30):

Well, Tammy Duckworth was injured in service to America, so rage against America is clearly not her only motive if it is one of her motives. The short, tart answer to her would be George Washington is the reason you have your job. It’s the reason that the senator from Illinois is you or some other elected person and not the illegitimate son of the Earl of whatever or the Oxford chum of the First Lord of Treasury.

He’s also impressive militarily. He’s not a flashy commander. He’s not like Napoleon, who will be a younger contemporary. But he figures out through trial and error what his strategy for coping with the British has to be.

The reason we have representative government and elections and self-rule is because of this Revolutionary generation. The most prominent figure in that generation was George Washington. So in a sense, he’s Tammy Duckworth’s employer, or at least he opened the door for Senator Duckworth and all the other 99 senators and every other elected person in America.

Now, we the voters can put whoever we like in those slots and sometimes we put bad people, sometimes we put stupid people, sometimes we put people who don’t know as much as they should know about history. But the reason that we have that option, that we have that choice, is because of this Revolutionary generation. And it was a revolution not just for this country; it was a revolution for the world. You can look at the history of the world for the last almost 250 years and see it as a struggle for self-rule. This encompasses a lot.

This encompasses political revolution. This includes de-colonization, the end of the imperial empire rule from Europe. It includes the fall of Communism. It includes the successful resistance to Nazism and fascism. You could even see it as the resistance to racism, because racism is a rebellion against stereotypes that are imposed and then structured, that are imposed on people because of their race. And it’s an assertion of the right to self-rule. That you have as much right to self-rule as someone with a different skin color or a different ethnic background or a different religion and so on. The gunpowder charge that set off all of these struggles for the last 200-plus years was lit in the 13 colonies at the end of the 18th century by our Revolutionary generation.

Richard Reinsch (06:28):

Thinking about, you say self-rule, self-government, and that, of course, is bound up inherently with moral rule and character and one’s ability to govern oneself. Can we talk about maybe Washington’s character some? How should we think about it? And did the character, was it something that forged an American character?

Richard Brookhiser (06:54):

Well, I should say that self-rule had better be bound up with character or it gets in a lot of trouble very soon. Many of these revolutions in this era that I talked about ended very badly. The first two that followed our revolution, it was the French Revolution, which began in 1789, and that was really a convulsion that lasted for a quarter of a century. One direct consequence of the French Revolution was the revolution in Haiti, called Santo Domingo before the revolution happened. But then Haiti became the second independent country in the Western Hemisphere and the first Black-ruled country in the world. Those two Revolutions had a lot of problems. There was a lot of chaos, a lot of extravagant shedding of blood, a lot of tyranny, new tyranny that was generated in place of the old forms of tyranny.

So yeah, a revolution is not a simple thing to pull off, and one of the things you have to have is good character, meaning you have to have control over your own passions and your own ambition. I think this was the quality of George Washington that maybe most impressed his contemporaries. I mean, there were lots of things about him that were impressive and start with his physical stature. He’s over six feet tall; he carries himself very well. He’s described by Thomas Jefferson, who was a very good horseman himself, as the greatest horseman of his age. Soldiers in the Continental Army always knew when there was a party of officers riding at a distance. They could pick out which one was the commander in chief. It was just obvious, so physically he stands out.

Politically, he is very shrewd. This is something that’s kind of hard to pick up in biographies because a lot of it he does behind the scenes. He takes very little open part in the struggle to ratify the Constitution, for instance, but it is clear that this is a document that he has endorsed. He’s working for it behind the scenes, and his presence hovers over the whole debate whether or not we should have a new Constitution being debated in 1787 and 1788.

He’s also impressive militarily. He’s not a flashy commander. He’s not like Napoleon, who will be a younger contemporary. But he figures out through trial and error what his strategy for coping with the British has to be. He finds the right strategy. He sticks to it. He works well with our French allies. And he achieves the victory, so that’s impressive. But I think the most impressive thing and the thing that most impressed the people around him observing him, working with him, was a sense of his control over his own passions and his own ambition. I mean, this is a man who becomes the most famous man in America, the most famous American in the world, and he goes home twice in his career. He goes home at the end of the war, and he goes home after two terms as president. How many other Revolutionary leaders, how many political leaders, do that so willingly?

Now, the list is rather short. But he does it and he does it not just once. He does it twice. I have to tell this story because it’s just so great who says it. When he announces in his farewell address, which was not a delivered speech. It was a published speech that was published in the newspapers. He never spoke it out loud. But he announces at the end of his second term that he’s not going to stand for office a third time. When the news of this comes to England, George III has a conversation with his favorite painter, a man named Benjamin West who was born in America but moved to England early in his life to perfect his art, and he eventually becomes the favorite painter of the king. So George III and West are talking about this, and George III says that Washington’s retirement from the presidency, he says, “This completes the whole. This makes him the most impressive man, the greatest man now living.” So that’s the tribute to George Washington from the other George, George III. I think it’s to George III’s credit that he could say that, but it’s also a very important observation to make, that Washington completes his career not only by doing what he does, but by not doing what he doesn’t do.

Richard Reinsch (12:13):

On that, this control of character and humility, there’s this Rules of Civility that Washington copies out by hand I think as a teenager, and it was over 100 rules of social etiquette, manners, mores, grace. Interesting, I mean, a interesting thing for a teenage boy to do now. I’m not sure then. But talk about that because that seems to me something that indicates he aspires to something more. He wants to learn some of these hard rules of how to interact with people who are better than him or higher-born or advanced. He wants to impress them. One of the things he thinks is, “Well, I’ve got to learn the rules of how to interact, and I need to commit them to memory.”

Richard Brookhiser (13:04):

Right. Absolutely. We have to remember that when he starts off in his life, I mean, he’s certainly fortunate in the sense that his father belongs to the gentry in colonial Virginia. This was not a poor background or even a middle-class background, but this was in the gentry class, the class of the people who would participate in ruling the colonies. But Washington’s father, Augustine Washington, was at the lower level of that class. He was coming up in the world, and then he died. He dies suddenly, which was common in Virginia. There was a lot of disease, a lot of early death. So Washington is left fatherless when he is a boy. His father had two marriages. The first wife dies and he married again.

Washington was the eldest son of the second marriage. His older half-brothers were both sent to England for some education, not college but pre-college schooling, and probably George would also have been sent there if his father had lived. His father didn’t live, so he doesn’t get to go. As far as we know, he might’ve had some one-room schooling in Virginia. He might also have had a teacher, a tutor, rather. There’s passing references to this and correspondence, but so far as we know, his formal education was very slight. Maybe only Andrew Johnson and Abraham Lincoln have less, of all our presidents. So here he is. He’s got one foot in the door, so to speak. Maybe a couple of toes, but he’s not all the way inside. So how do you get inside? How do you get up in the world? His older half-brother has married into a very wealthy and fancy family, the Fairfaxes. The head of the family, who’s an English lord, he owns a chunk of Virginia which is the size of the colony of New Jersey.

This is the state of New Jersey. That’s the Fairfax grant. One job that young George gets through his family connection is to help survey this huge tract of land, which stretches over into the Shenandoah Valley and the mountains beyond. This takes him away from the Tidewater when he’s a young man. It’s one of his first experiences of the West. Unlike a lot of other American leaders, he’s always looking west. He’s not a merchant dealing with England looking east. He’s looking west into the back country.

But anyway, here he is and what’s he going to do with his life? So this little book, the Rules of Civility, that we’ve been talking about, someone at some point gave him this. Maybe it was penmanship: “Here, George. Copy these out. Now, there’s a hundred ton of these things. You rewrite them yourself.” We can tell from his copy that this is at least in part a penmanship exercise because the capital letters are very elaborate and it’s like a kid saying, “Oh, look. I can really do a nice capital P. Look at this.” But these rules, you have to say he’s paying attention to what the rules say. They’re called the Rules of Civility and Decent Behavior in Company and Conversation. So this is how do you behave with other people. The first rule explains all the other ones; it sets the tone for all the others to follow. It says, “Every action done in company or conversation should be done with some sign of respect to those who are present.” In other words, here you are in the world, all these other people. You’re going to know some of them. Some of them are complete strangers; you’ll only meet them once. Some of them are your superiors; some of them are inferiors. But everything you do or say in their presence, you have to be aware of them, and you have to give them their proper respect. What’s interesting, this even includes condemned criminals. Because one of the rules says, “If you see a man punished for a crime, though you may be glad, always show pity to the suffering offender.”

So that’s even a counsel of a little hypocrisy. You may think, “Ah, he got his just desserts. Good. Keep him in the stock.” But no, you don’t show him that. You give him a nod: “Sorry. Sorry to see this,” something. Always show pity to the suffering offender. So even a condemned criminal is worth a little bit of your attention and a mite of your respect. So these rules are a lesson in awareness, in awareness of other people and also awareness of yourself, how you’re behaving among other people. Obviously, there’s a practical point to this. This helps you in society. It helps you in social gatherings. It tells you how to behave to Lord So-and-so, who may be or maybe not giving you some sort of position that you want. But it is also at the same time shaping your character. Because if you’re thinking about this, if you think about this consistently, you’re going to alter your own behavior. It’s like working from the outside in.

You control the way you walk, control the way you talk, control the way you dress, how you interact with people. This is like acting. This is like you are preparing the role of yourself as a person in society. You’re training yourself to act a certain way in society. That’s what the rules are supposed to do and that’s what they did for Washington.

Richard Reinsch (19:11):

Now, this just sounds horribly wrong to us, I think. Aren’t you supposed to be yourself?

Richard Brookhiser (19:19):

Right. No, that’s right. That’s right. Just some decades later, we’re going to get authenticity.

That’s going to come in. That comes in kind of end of the 18th century and then early 19th century big-time: what is yourself.

One of the things John Adams says is Washington had the gift of silence. Adams says, “I esteem that as one of the greatest talents, the gift of silence.” Washington could just keep his feelings to himself. He was not putting them all out there. He would not be on Twitter.

Richard Reinsch (19:33):

Transcendentalists, yeah.

Richard Brookhiser (19:35):

Well, Transcendentalists, Romanticists, it takes many forms. But it’s a whole wave of that. And Washington is a little bit before that. We also have to say, Washington needs these rules because there’s some skills he doesn’t have. I mean, he’s not a storyteller. He’s not a joke teller. He’s not like Abraham Lincoln or Ben Franklin, somebody who has a million stories and can just entertain and distract with company. Though Washington apparently liked good stores. He liked to hear other people’s jokes, but he was not a teller of jokes himself. So there’s some deficiencies he has, some things he has to compensate for. This training begun with the Rules of Civility helps him overcome that.

Richard Reinsch (20:25):

He struggles with anger for most of his life, I’ve always read.

Richard Brookhiser (20:29):

Well, yes, he had a temper.

He had a temper. We forget this because you look at Mount Rushmore and you look at the quarter in your pocket and you look at the dollar bill in your wallet and these are not angry faces. These are kind of marble visages. But he did have a temper. People who worked closely with him knew that. And the interesting story about that is how rarely he let it loose. I mean, there was one occasion in the Revolution at the Battle of Monmouth. This was in summer of 1778. It was after the Valley Forge winter, which had been this terrible winter. The American Army was cooped up outside of Philadelphia, which the British had conquered. Lousy supply, poor food, terrible deficiencies and uniform clothing and all the rest of it. But during this winter, they’d drill and they trained.

This is when Baron von Steuben shows up, and he institutes a drill for these American soldiers so that they can maneuver in the field and respond to commands and fight more effectively. The Army learns this. They become proud of themselves for their new knowledge. Then when the British leave Philadelphia because France has entered the war and they have to reconstitute their forces, reconcentrate them. So they’re marching from Philadelphia back to New York. We’re following. We catch up with them at a place called Monmouth Court House in central New Jersey and there’s a battle. Well, the man in charge of the attack, it was supposed to be an attack on the British rearguard, was a general named Charles Lee.

He and Washington had hit it off at the beginning of the War. Lee was very charming, very amusing, very eccentric. He was an English officer who’d moved to America and sided with us. He had a lot of professional experience. He knew a lot. He impressed Washington early on, but he was just a loose cannon. As time passed, it became clear that that’s who he was. When you got beneath the surface, what you had was a loose cannon. At the beginning of this encounter, he comes upon the British rearguard, but then it turns out, “Oh, it’s not the rearguard. It’s the whole Army.” So he’s disconcerted. And Washington brings up the bulk of the American Army, and he sees the battle is just not going well. It’s all confused. And he loses it. He chews Lee out. One American general said, “He swore till the leaves shook on the trees. He swore like an angel from heaven. I have never in my life heard such wonderful swearing.” Well, now, this general who claims to have heard this was a mile away at the time, so he didn’t hear any swearing. But what he’s reflecting is what everybody who was there heard, their impression of this encounter. That Washington just, he uncorked it for once and just let Lee have it. Then he took over the battle himself and got a pretty good resolution from it. But so that was an occasion where his temper exploded.

But what’s noteworthy about that is that’s it. For in public, that is the only time that anyone can remember for eight and a half years of the Revolution and eight years of being president. Now, also when he’s president in his cabinet meetings, occasionally he loses his temper there. Cabinet meetings then, remember, are very small. There’s only the secretary of state, treasury secretary, secretary of war and there’s an attorney general. So there are only four guys plus you, the president. It’s a little group. And Thomas Jefferson, who kept notes, he has some notes of occasion when Washington did lose his temper in these small meetings. But again, he would cork himself back up, get back to the business at hand, not let his decision be distracted by whatever it was that had irritated him, and that this was all happening in private. I mean, this is not happening in public.

I think the most interesting comment on this, and it was made years after Washington had died by his vice president, John Adams, who becomes the second president after he steps down. But John Adams is an old man, old, old man. He’s writing another old patriot, Benjamin Rush, and they have a long exchange of letters. A couple of letters they’re writing about Washington. Who was he? What made him tick? Why was he so great? There’s one letter where Adams says, “Okay. I’m going to give you the reasons why Washington was great,” and he has, like, 10 of them. They’re kind of cranky. John Adams was a feisty guy and some of these are a little envious. He says, “Well, Washington was rich. I mean, he married a rich woman. He had a big fortune. Everybody likes rich people.” Another reason, he says, “Well, he’s a Virginian and in Virginia, all geese are swans.”

So that’s the New England Yankee getting that little dig in. But one of the things he says is Washington had the gift of silence. Adams says, “I esteem that as one of the greatest talents, the gift of silence.” Washington could just keep his feelings to himself. He was not putting them all out there. He would not be on Twitter.

Richard Reinsch (26:19):

That’s wise. Yeah.

Richard Brookhiser (26:21):

No way would he be on Twitter. Or if he would be tweeting, “Had a nice meeting this morning.”

“Very good presentation in Philadelphia. Excellent relations with friends.” That would be his Twitter feed. He had the gift of silence.

Richard Reinsch (26:41):

He knew his limits.

Richard Brookhiser (26:44):

Well, he knew his limits, and also, look, he’s the first president and he’s the most famous man in America. Anything he says people are going to run with it.

Richard Reinsch (26:53):

Yeah.

Richard Brookhiser (26:54):

And so unless he wants to say something, he has to not say anything. If it’s not necessary for him to speak, it’s necessary for him not to speak because that will just cause chatter and back and forth and “What does he mean?” and “Let’s do this,” and “Let’s react this way.” So he possesses the gift of silence.

Richard Reinsch (27:17):

I want to get more into Washington as general and Washington as statesman. Before we do that, I want to … because I think this also feeds directly into the troubles that we’re in and the framing of Washington. You mentioned at Mount Vernon and I’ve read about his devotion to agriculture and to being the most modern practitioner he could be of that. But it also brings to mind the slaves that he owned and those of Martha Washington and just a sense of this, the way it’s presented. I was recently in Barnes & Noble with my eight-year-old daughter. We were in the children’s section and there’s two racks of books in the history part of that. And there’s a book on Ona Judge, a slave of Martha’s, I think.

Who ran away and was pursued by Martha. She had people pursue her. The way the book was presenting it is there was something very wrong with this or she was running away for freedom. But, of course, what I’ve read is Martha Washington actually thought she had been abducted or seduced by someone, an older slave, and was trying to track her down for her own protection. But I … That and just Washington as a whole with regard to the slaves that he owned. I thought maybe we would talk about that some and also his Last Will and Testament, which I think has an interesting first sentence. But on the Ona Judge situation, your thoughts.

Richard Brookhiser (28:56):

Well, Ona Judge was one of Martha’s slaves and she escaped. She went to New Hampshire with a Frenchman.

Richard Reinsch (29:04):

Okay.

Richard Brookhiser (29:05):

And Martha wanted her back, and Washington inquired with the customs official in whatever town it was. I think it might’ve been Portsmouth. “Is there any way to get her back?” And the customs collector said, “Not without an uproar,” because I think by this time, New Hampshire had either ended slavery or-

Richard Reinsch (29:29):

I think that’s right.

Richard Brookhiser (29:30):

… it had certainly begun the process of ending slavery.

Richard Reinsch (29:32):

Yeah.

Richard Brookhiser (29:34):

So Washington dropped it because he didn’t … An uproar was something he didn’t want. Now, did he pursued her in the first place? Well, it was his wife’s slave. People who are married can think over that. We don’t know all of the dynamics of what went on, but one can imagine. But another thing we know is what Washington finally does with his own slaves, which is only a few years after this. Ona Judge goes to New Hampshire when Washington is president. So Washington steps down March of 1797, and then he dies in December of 1799. So two years after he leaves the White House, some time during 1799, in the fall of ’99, he writes his Final Will and Testament. In that he spends a lot of time saying that all the slaves that he owns shall be free after the death of his wife. He specifies that none of his slaves may be taken out of the state on any pretext whatever. In other words, you can’t take them to Kentucky beforehand.

They all have to be free. He says that slaves that are too old to support themselves or too young should continue to be maintained by the estate, and he’s made provision for this. Slaves that are young should be trained for some useful occupation and be freed by the time they’re 25. And he gives immediate freedom to his personal servant slave, William Lee, and he says “for his services to me during the Revolution.” So it’s interesting. William Lee is the third person who is named in the will. Washington is the first: “I, George Washington … ” That’s how it begins. Martha’s the second one named. William Lee is the third, and he links him with the Revolution. I mean, William Lee was his slave servant for a long time. He could’ve linked him with all kinds of things or not linked him to anything at all. But he said, “for his services to me in the Revolution.”

Washington’s life was dedicated to liberation, liberty in America, to American self-rule, and how can that life be complete if he dies an owner of slaves? It can’t be. He has to fix this. This is the last thing he has to do.

So he’s noting in his will, “This man was involved in the Revolution. I was the commander in chief, but he was there. He was there at my side this whole time.” So he gets his immediate freedom if that’s what he wants. If he wants to stay enslaved, he can have that too if he likes because he’s old and crippled by this point. And he gives him an annuity. He should have $20 a year. Doesn’t sound like a lot. I mean, it wasn’t a huge amount. It was more than $20 then. There were also at Mount Vernon, and this is over 150 people we’re talking about, this is a large manumission. There’d been a bigger one in Virginia. There was a man named Robert Carter III who owned like 500 slaves who he was freeing. He was a religious convert; he became a Baptist, and then he became a follower of Emanuel Swedenborg and he freed 500 slaves.

But Washington’s 150-plus is a lot of people. Now, there’s an equal number at Mount Vernon who are not freed because they belong to the Custis family estate. We call them Martha’s slaves, but she only has a life interest in them because they were the property of her late first husband, the man she married before she married George. They will become the property of her children, who have all predeceased her, so therefore of her grandchildren. They end up being the property of George Washington Parke Custis, who is her grandson, and Washington has no power to free those slaves. They belong to the Custis family estate. So they stay in bondage and actually they’re not freed until just before the Emancipation Proclamation because the grandson frees them in his will, and it goes through the Virginia courts and then finally they’re freed at the end of 1863 by the Confederacy.

Richard Reinsch (34:24):

Wow.

Richard Brookhiser (34:25):

Because that’s the terms of this man’s will. But so Washington’s slaves are freed, and I’ve actually, I’ve met some descendants of them. Some of the descendants still live in Alexandria, Virginia where Mount Vernon is. Some live in Maryland. Some live in the Philadelphia area, and I’m sure they’re scattered across country. But these are the main concentrations, and they have a reunion every year. They’ve been doing this for, oh, gee, it must be close to 85 years now. It’s called the Quander Family Reunion because their ancestress was one of the slaves named Nancy Quander. Because Washington, in his will he attached a list of all of these people who were to be freed, a list of all their names. So Nancy Quander is the one whose descendants are still around. So why did Washington do that?

He does that, I think, because he knows he has to do that. His life has been dedicated to liberation, liberty in America, to American self-rule, and how can that life be complete if he dies an owner of slaves? It can’t be. He has to fix this. This is the last thing he has to do. Now, I noticed there’s a columnist for the New York Times, Charles Blow, who’s written about this said, “Yeah, well, Washington only freed his slaves when he had no more use for them. It’s in his will. He had no more use for them.”

I thought, “Well, gee. When people die, we can’t just go in their houses and take everything because they have no more use for it.” Right?

Richard Reinsch (36:18):

Right.

Richard Brookhiser (36:19):

I mean, people leave wills. They do have use for things after they die. I mean, we can say it’s vanity and all the rest of it, and of course they’re dead; they’re not actually here. But people make provisions for it all the time. I mean, bequests to charities, to colleges. They do inheritances. I mean, they direct the disposition of their possessions after their death. So it’s not like, “Oh, yeah. Washington had no more use for them. So if he died, they could all have just walked away? Right?” Well, no, they couldn’t. They would’ve been the property of somebody, some of his heirs. But they weren’t because he said they should be freed. That would be my answer to Mr. Blow.

Washington is the last American to command integrated units until the Korean War.

Richard Reinsch (37:11):

What do you make in the Last Will and Testament? He refers to himself as both citizen and president in this private act of the disposition of his property.

Richard Brookhiser (37:21):

Well, yeah, but he knows it’s going to be public.

I mean, this is not going to be a secret will. This is also going to be a public statement, and that’s how it’s taken. There was a sermon given in the first Black-owned, Black-run church in Philadelphia shortly after Washington died. The minister said that “He has removed the last possible blot on his reputation because the bread of oppression was hateful to him.” This is the Black leader of this congregation.

Richard Reinsch (37:53):

Yeah. Well, I was contrasting that with, in my mind too, Thomas Jefferson’s Last Will and Testament, which I don’t think makes any reference or recognition to his public status.

Richard Brookhiser (38:05):

Well, he couldn’t. He was broke.

Richard Reinsch (38:10):

Yeah, he was indebted.

Richard Brookhiser (38:10):

The only reason Washington is able to do this is because he’s an acquisitive man. I mean, he’s wanted to earn money all his life, and he has. He’s succeeded in it, and he’s managed it wisely and he hasn’t overspent it. He’s managed this even though the soil at Mount Vernon has run out. I mean, it’s been leached away by years of tobacco growing, which is very punishing to the soil. That’s why he switches from tobacco to wheat, and then he has all these properties and he buys land in Pennsylvania and what becomes Ohio and what becomes West Virginia. I mean, he’s a great big landowner. That’s his fortune. Mount Vernon is a white elephant. I mean, it’s beautiful; the house is lovely. But the property, if that’s all he had, he would’ve been in debt too.

But so Jefferson, who knows what Jefferson would’ve wanted to do if he had a free hand. But he didn’t have a free hand; he was in hock up to his eyeballs. And after he dies, everything gets sold off: the house, his slaves, the whole thing. That’s true of a lot of the great Virginians. I mean, it happened to Madison’s estate after he died. And Monroe had to leave Virginia while he was still alive. He had to move to New York and live with his daughter in New York. Washington plays his hand better and then therefore is able to do what he does. I mean, who does Jefferson free in his will? He frees the Hemings, very likely his own children. Madison freed nobody. Monroe freed his coachman, Peter Mark. And Washington frees over 150 people; that’s the record. Also one other thing before we leave this. Washington is the last America to command integrated units until the Korean War.

Richard Reinsch (40:04):

Oh, wow.

Richard Brookhiser (40:05):

In the Revolution. Now, this is not what he was thinking when he first becomes commander in chief. When he’s first picked by Congress and sent up to manage the siege of Boston and he discovers that some of the Massachusetts units there have Black soldiers, he doesn’t like it. He’s surprised by this and he says, “Eh, can we get rid of these guys?” But the officers tell him, “Well, no, we can’t. We need the men and they’re good men and is what we do up here.” Then Washington accepts that. I mean, this is an interesting comment on his style of leadership. He’s willing to learn, he’s willing to listen, he’s willing to grow.

By the time of, we mentioned the Battle of Monmouth, which is 1778, at that battle he’s commanding, he had 12,000 men at that battle. 800 of them are Black or Native American. I’ve seen a list of their names. Some New Jersey historical society published all the names of the men of color on the American side at the Battle of Monmouth. I remember one was Oliver Cromwell. One was Artillo Freeman. One was Cash Africa. I mean, these are names that the people themselves picked or perhaps had been picked for them when they were enslaved and then they retained them. No, I don’t know. We don’t have biographies of these men. We just have a list of their names. I’m sure everybody has seen the picture of Washington crossing the Delaware that was done in the 1850s. I mean, we’ve all seen it a million times. One of the oarsmen in that boat looks Black. I mean, he looks like a person of color. And that’s historically accurate because the unit that ferried those boats back and forth across the Delaware River before the Battle of Trenton was the 14th Massachusetts. They were sailors from Marblehead and there were Black and Native Americans who were sailors who lived in Marblehead and they were in this unit. That was the historically accurate detail that the artist, who was a 19th century German, put in the painting. Then the militia and the army become all white during Washington’s presidency, actually. There’s a Militia bill which defines the Militia as white men over 21. But during the Revolution, that was not the case.

Richard Reinsch (42:51):

I never knew that before. Thank you for sharing that. Washington as statesman, as the first president, what was most essential in his view to accomplish?

Richard Brookhiser (43:01):

Probably three things. One was to keep America afloat during a world that was sliding into a world war. Washington is inaugurated in April, 1789. That’s when he takes the oath in New York City for the first time, and the Bastille falls in July. So he’s got like three months of peace and then boom; French Revolution begins. It becomes a world war. It’s going to last long after he dies. It won’t end until the Battle of Waterloo. And we’re a little country on the edge of all this, and the contending powers surround us, by the way. Because the British are still in Canada. Spain still owns Florida and the whole Gulf Coast. They own the Louisiana Territory. They control New Orleans and the Mississippi River. France is still in the Caribbean. We are surrounded by colonial empires in a world that’s entering a world war, which is both a world war and it’s an ideological conflict. We have to just stay afloat during all this, so that’s problem number one. Problem number two, we’re broke.

Our debt is trading on the European money market at a quarter to a third of its value. It’s practically junk. American paper is just like junk. And why is that? It’s because we have been unable to pay off the debts that we ran up fighting the American Revolution. These are debts to American creditors, also to European creditors who loaned us money. We also have not been able to pay the soldiers who we thanked them for their service and sent them home and said, “Well, you’ll get half pay one of these days. Hold on to your certificate. We’ll pay it off one day.” So there’s that. That’s problem number two. And Washington assigns that problem to his treasury secretary, Alexander Hamilton, who has been on his staff during the War.

Washington could be his own secretary of war or his own secretary of state. He could’ve done both of those jobs himself. He couldn’t have been his own treasury secretary. But he knew who could be his treasury secretary, and he lets him take the lead and backs him up. That’s a very important quality of leadership: You know what you can do and you know what you can’t do, and when you know what you can’t do, you have to find someone who can do it. And then you have to trust them and back them up and that’s what Washington does.

Problem number three, which he is unable to solve, is how to deal with Native Americans. And here he’s working with his secretary of war, Henry Knox, and they hope that they can sign treaties with Native American tribe nations that still are living in the old southwest, what’s now Alabama and Mississippi and parts of western Georgia. There are tribes there that have sided with the British during the Revolutionary War. They can send a lot of warriors into the field. We don’t want them to be your permanent enemy. We want to find some way of living alongside them. Knox and Washington, their hope is that they can make treaties with these nations and have them have a kind of semi-independent existence within the boundaries of America. And this doesn’t work. This fails because there are just too many white people too eager to move west.

The federal government can’t keep them out. Impossible to hold the tide back. So this is something he wants to do that fails; it doesn’t work. But I would say that those are the three problems that he had to focus on.

Richard Reinsch (47:14):

You referenced earlier, I think, Washington’s lack of formal education. Certainly, his education compared to his contemporary statesmen would’ve been much deficient to theirs. Can we sketch out, though, from correspondence, from speeches, actions, a coherent political philosophical approach on Washington’s part?

Richard Brookhiser (47:38):

Yes, I think we can. There are times when he does that. He issues a circular to the states in 1783 as he’s getting ready to leave the job of commander in chief. In his mind, this is his farewell address. Now, he didn’t know that he’d come back and have to be president of the United States and then give another farewell address, which we call by that name. But there was a first one in 1783 and then there’s the famous one in December, 1796. In there he lays out some policy goals. He says that America should pay its debts. He says that America should have an independent standing in the world. It should not have permanent alliances or permanent antipathies with any nation. He says anyone who has either of those is a slave; they are a slave to their affections or to their dislikes. That’s a very loaded word to use in a country with a lot of slave owners, including you yourself. Also unity, national union. I mean, he tells in the second farewell address when he’s leaving the presidency, he says, “The name of American has become precious to you.”

He tries to explain that every part of the country benefits from this union. The North makes manufactured goods that the South needs to use. The South produces agricultural products that the North needs. Similarly with the East and the West. It is not at all clear to Washington’s generation that this country will hang together. Now, we think of the North/South split as the one that finally does split. But also East/West, I mean, that looked like a potential dividing line because the Appalachians were hard to cross in those days. If you’re a farmer and you live in Kentucky or the Ohio Valley, the easiest way for you to export a crop is to stick it on the Ohio River and send it down the Mississippi and hope the Spaniards let it go out in New Orleans. I mean, are you going to send it over the mountains to Philadelphia? That’s hugely slow and expensive. No, you don’t do it. You use the river route. So does that mean that the whole thing is going to split apart across that mountain chain? This is a real worry and Washington worries about it.

One thing he does is he tries to imagine: Maybe we an dig canals across the mountains. Maybe we can connect the Potomac to the Ohio. This is a kind of a fantasy that he and other Virginians have. It never really works, but the canal that works will be the Erie Canal across New York State, which is much flatter. But Washington, it’s the same problem. Washington is trying to think of it: How do we keep this country together East and West? So union is another thing that is on his mind and very important to him.

Richard Reinsch (50:47):

That was excellent. Richard Brookhiser, thank you so much for discussing George Washington’s life, biography, example for us. We really appreciate it.

Richard Brookhiser (50:58):

Okay. Thank you, Richard.

Richard Reinsch (51:00):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk available at lawliberty.org.

The Don and the Constitution Sep 15, 2020

Richard Reinsch:

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today, we’re talking with John Yoo about his new book, Defender in Chief: Donald Trump’s Fight for Presidential Power, that’s just been released. John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley. He’s a visiting fellow at the Hoover Institution and at the American Enterprise Institute. He worked in the Department of Justice under President George W. Bush and was General Counsel to the US Senate Judiciary Committee and has written and published numerous other books. He’s been on Liberty Law Talk to discuss them a few times, and he’s widely cited and published in a number of other forums. So, John, we’re glad to have you to discuss your slightly controversial book today.

John Yoo:

Richard, thanks a lot. Thanks so much for having me on, and like people always say, long-time listener, rare guest. So I’m really-

Richard Reinsch:

Well, we’d have you on more often, but you’re always on Ricochet with Richard Epstein. I don’t want to tax your podcast abilities there, too many appearances.

John Yoo:

Well, Richard and I should come on and be guests with you, which you and I would both talk 5% of the time.

Richard Reinsch:

Yeah, I know. That would be great. No, I’ve interviewed him before, and I got maybe 5% of the comments in to his 95%. I haven’t forgotten that. So, John, thinking about this book, Defender in Chief, now, something of a change for you. I don’t recall you being a supporter of Trump first time around and I’m not necessarily saying that you are now, but you do argue in this book, in myriad ways, Donald Trump’s presidency has been in defense of the Constitution. So maybe tell us why you wrote this book.

John Yoo:

Thanks a lot for having me on, and I really care what the listeners of this podcast think about the book because, as I said, I regularly listen to all the episodes and this is the podcast that, to me, is the most originalist in a way, the most deeply engaged with political theory, constitutional law, history, all the stuff I care about. Sometimes I say this book is a trick. It’s an effort to get people interested in Trump to actually learn stuff about the presidency. And as you know, my analysis is primarily originalist but with a lot of Constitutional history. So the reason I wrote the book. Look, four years ago, I was not a supporter of President Trump. I wasn’t the Never Trumper, I suppose, because I didn’t sign any of the many letters circulating, but I wrote op-eds very critical of him.

And four years later, I find myself in the position of agreeing more with his defenders than his critics, and for this reason. If you care most about the Constitution, four years ago, you might’ve thought and I worried that Trump would be a populist. And populists, we’ve seen over the years, are the ones who most strain against Constitutional understandings and traditional limits on their powers. They’re the ones who think they have a broad popular mandate to achieve something, and old things like the Constitution or tradition get in the way. So that’s why I was worried four years ago. But now, take a look in 2020 after Trump’s first time, what do we see?

We see his critics are the ones who are proposing radical Constitutional change, it seems to me. His critics are the ones who are proposing to abolish the Electoral College, to start manipulating the size of the Supreme Court just because you don’t like the outcomes and add six justices to the Court, to make independent counsels permanent and criminalize our politics again, and nationalize the energy and transport sectors, and you go on and on. So what I found looking back on the last four years is I’ve found Trump was the one who was relying, in my view, on very traditional understandings of presidential power, who was obeying the courts, who was citing congressional delegations’ authority. Now, I think politically he’s been a disruptor, and you’ve had a lot of guests on who’ve talked about the way the presidency has operated the last four years as a political matter. But when it came to the Constitution, I thought Trump actually was mostly defending himself and the constitutional traditions we have from a left that really wants to overturn the way we’ve run for the last 220 years.

Richard Reinsch:

On this point, you say in the book … I didn’t know what to expect as I was going to read it. It’s not so much affirmative steps Donald Trump is taking as a president. It’s more of things he’s reacting to. He has policies, they are vehemently opposed by his opponents, and then as they’re coming at him in various ways, we can go through those. It’s more of what he has to do to defend the constitutionality of the policies that you speak about in the book. It’s could he fire James Comey? Was that a violation of the Constitution, or was that corruption? Or on impeachment, you have a discussion of that. You also have a really interesting discussion of the Electoral College and is that a legitimate institution or is it tainted by slavery, which many have argued, and you take that discussion head-on. You also talk about Trump and the wall and the appropriation of funds. So maybe we can go through those things. But I took that to be instructive. It’s this intense opposition, the willingness to defeat Trump, by hook or by crook, and the thing that he has to fall back on is really just the Constitution itself, and then he ends up defending it that way.

John Yoo:

It’s a great point, Richard, because I didn’t think of it that way before, the way you put it. But if you look at many people who are originalist or conservative, their criticism of the modern presidency has been, “Oh, the presidency has become this unconstitutional innovator, someone who’s always trying to change things, he’s radical.” This was actually what the liberal theorists of the presidency in the ’60s and ’70s wanted out of their president. They wanted them to break through and change things. You’re quite right, Richard. If you think about it in the way I look at issue by issue, Trump is actually using presidential power in a more minimalist, I guess you could call it, fashion. He’s trying to defend the core powers of the presidency. He’s not really using those powers to innovate. He’s almost using it to defend. It’s a negative use of the … And if you think about some of these issues, he’s using presidential power actually to try to make the reach of the federal government smaller, not larger. So take foreign policy, for example. We’ll talk about it, too, I assume. He’s withdrawing troops from abroad. He’s terminating agreements. Most of the criticisms of presidents have been, “Oh, you’re sending troops without congressional approval. Oh, you’re entering into international agreements without sending it to the Senate.”

Trump’s doing the reverse with presidential power. So he’s using the constitutional powers of the office not to aggressively expand, but he’s using it just to defend this core. So the two examples you mentioned, I think, are good illustrations. Mueller and impeachment before firing Jim Comey. I think of the first as an effort by Trump to restore elected political control over law enforcement, which is his constitutional authority under Article II. I think of impeachment as a fight over the president’s ability to manage foreign policy, both in the face of these progressive era bureaucracies, in a way, that want to be independent and technical and have judgment and expertise and not be under the thumb of politicians.

His critics said, “We not only have the right to review the legality of what the president did, the executive order on banning entry into the country, we have the right to guess what was in the president’s mind when he issues or she issued that order. And, in doing so, we’re allowed to guess at what the president was thinking before he was even president.”

Richard Reinsch:

Yeah. No, it really is. It occurred to me as I was reading your book an interesting experience last fall at the Georgia Political Science Association on a very nice panel to discuss my book, A Constitution in Full. Then I got invited to be on a Trump panel, and you’d be the only conservative on the panel. Of course, I said, “Well, I’m not really a Trump guy. I’m sort of in-between. I call balls and strikes on the administration to the extent that I write about it.” Soon, I am on the panel, and it’s eight to one, and I’m a point four or something. The level of opposition to everything Trump does or had done on the panel … And I found myself several times responding to questions and just going back over basic points of executive power and the Constitution and then how that had been augmented not by Trump but by progressives in the early twentieth century and enlarged to its present state and how we do have a federal statutory presidency that’s been greatly expanded through delegation of authority discretionary powers as well. It was sort of like, “Has this not dawned on you?” The level of opposition there, it made me think, “Well, this is a micro-experience of what’s going on writ large, I think, in Washington.”

John Yoo:

Come out and spend some time out here in Berkeley. It’s a little different than in Georgia.

Richard Reinsch:

No, I am convinced hell hath no fury like academics in a red state. But, in any event, as I read your book, I thought, “Yeah, these points John are making, this is all just bedrock stuff here,” but it gets buried by the level of opposition to Trump and of course by his tweeting and his personality. But you open with this, the Electoral College, he loses by, what was it, three million votes, the popular vote, to Hillary Clinton. And if he wins in 2020, it may very well be by something like that. So the Electoral College is now under assault. An argument that’s made … I remember hearing it in law school from Michael Gerhardt, who was my professor, that slavery built the Electoral College to protect the interests of the slave states. That’s now common in progressive circles, and then you also quote the scholar Finkelman, and I’ve read his book, where he makes this point. Even Michael Paulsen on this podcast said this, and he says it in that book he wrote with his son on the Federalist Papers. I challenged him on that and he produced a Madison quote, that was it. Let’s talk about that for a minute. Trump’s not really out to defend the Electoral College, although the way he won in 2016 and may win in 2020 brings that up. Was the Electoral College built on the desire to, what, protect Virginia or something like that?

John Yoo:

Trump, he might thank his family, he might thank his friends, his supporters, but his biggest supporter has actually been the framers because he has really benefited from the Electoral College design, the way impeachment’s designed. He’s benefited from the structure of the Constitution maybe more so than a lot of recent presidents. But to answer your question directly on the Electoral College, yeah, a lot of people don’t like the Electoral College. It seems ramshackle. But when you go back and look at the history of it, I think it makes more and more sense, and I think this allegation that it’s somehow racist in intention or was done to protect the slave states is wrong, or if it’s right, then the whole Constitution suffers from the same problem. Because, really, what the Electoral College is is not an effort to protect slavery, and I went through in the book, very carefully through-

Richard Reinsch:

Yeah, you do a great job.

John Yoo:

… the Constitutional Convention evidence, and it’s just dependent on basically one sentence said by Madison in the debate that was not public when the Constitution was ratified. This was in the Philadelphia Drafting Convention, and it’s not clear it represents anybody’s view. It’s not even clear it’s representing Madison’s view. But the idea, more importantly, was that the founders were trying to strike a balance because they rejected the idea of direct democracy, and that’s not just the Electoral College. In fact, the Electoral College is one of the weakest restraints on direct democracy. Think about the Senate, for example, or judicial review. Those are much more anti-democratic than the Electoral College. But they didn’t want to go for a direct vote. They also, on the other hand, rejected the idea that Congress should pick the president. They didn’t want us to become like what would be the modern European parliamentary democracies where there was no separation of powers and the executive just worked for Congress or was an agent of Congress. So they used the Electoral College to try to have independence from the legislature but also to mediate democracy through institutions, and that’s very typical of the Constitution throughout, and the Electoral College was just one effort to do that. It only matters, though, in close votes. If you think about it, the Electoral College doesn’t matter when the people are overwhelmingly or clearly of one mind on who they want to elect.

The second part about this racism point was that when they were designing the Electoral College, people observed that if we go to the system we have now, where the votes are allocated by the states but those votes are counted up or allocated by voting population, using the members of the House plus those in the Senate to come up with the number of votes. Then one delegate said, from North Carolina, a guy named Williamson, he said something along the lines of, “Well, the three-fifths rule will benefit Southern states.” So from that one sentence, people think, “Oh, the electoral college was this huge effort by Southern states to give themselves an advantage because of this three-fifths rule.” But when you look at it closely, it doesn’t come out that way. The slave states and the free states did not vote together on the Electoral College. In fact, if you think of it, Southern states would’ve maybe even disfavored that and wanted to have the Senate pick the president or something or just have the states pick the president, which were also mechanisms that were being thrown around at the time. In fact, this method was much more responsive to democracy than a lot of the other choices make. Nonetheless, I’ll just make this … Whatever was going on then in Philadelphia, again, which was not made known to the states during the ratification process, that effect was removed by Reconstruction. You could say the House of Representatives was equally racist and the Senate, too, but when the three-fifth rule was eliminated, slavery was ended, then the Electoral College, if it ever had that kind of taint to it, the Electoral College loses it after the Civil War.

Richard Reinsch:

Yeah. It seems to me, and you pointed this out, South Carolina and North Carolina vote against the Electoral College?

John Yoo:

Yeah, yeah.

Richard Reinsch:

I didn’t-

John Yoo:

They did.

Richard Reinsch:

And if you think about it, South Carolina is one of the key states that probably does not join the Union if they could not bring their slaves.

John Yoo:

This is my small, small contribution to the history. It’s a very small contribution because I saw no one went back and checked how the states had voted.

Richard Reinsch:

No one ever goes back to the three-fifths rule and looks at the Constitutional Convention to see who introduced it. It wasn’t Southerners, it was Northerners who were doing it. You could argue it’s a compromise. You could also argue they’re trying to preserve some element of popular sovereignty as well.

John Yoo:

Exactly.

Richard Reinsch:

But who cares about history? We’ve got the narrative. Thinking about this, though, and it’s also the case with the Electoral College, this is never really considered, it does mean that parts of the country matter outside of large population centers. It means that one has to put together different parts of the country to win that might be disparate and different, and that also seems to get glossed over. Immediately, when Trump comes into office, let’s talk about the travel ban. You spend a lot of time in the book talking about that and how that’s used against Trump. He said that he’s acting on constitutional … You argue the first one was discrimination against Muslims, but then it gets revised two more times, and yet district courts continue to throw it out on the basis of inferring back to things Trump said on the campaign and that becomes a way for them to throw out the travel ban. But talk about that and what’s going on there.

John Yoo:

I think the travel ban is a good example of this dynamic that we’re talking about, and it happened right away, so we should’ve been able to see pretty early on what this dynamic was going to be for the rest of his presidency. Okay, so Trump does put out this travel ban. He doesn’t claim that he has a constitutional power to do it. He doesn’t actually say … He could’ve. There’s some authority for the idea that the president has some power over the borders. But instead part of the immigration law says if the president finds there’s a national security threat posed by immigration from certain countries, then the president can stop it. In fact, no one’s complaining about Trump using that power now with China and the COVID epidemic, right? In fact, people are criticizing him for not doing it earlier. But that’s not a power the president has in his constitutional arsenal. He just claimed he had it … So, okay, so Trump says, “I’m going to do it with these countries,” and then he says, “I’m going to give an exception for Christians coming from these countries.” I think that was the constitutional error, and a district judge, I think, also went over the top and tried to enjoin the whole thing even though he’s just one district judge, I think in Seattle.

Now, if Trump were the dictator that people make him out to be, then what he did next doesn’t make sense, which is he said, “Okay, I was wrong. I’ll change the order.” Then he changed the order and went through the whole process of litigation all the way to the Supreme Court. He didn’t defy any judges, he obeyed every judicial decision, and won at the Supreme Court. And even there, people who were attacking him wanted to introduce, I think, something which would amount to a Constitutional revolution in the treatment of the presidency, which was his critics … And I’m afraid the Supreme Court nodded towards this, although it didn’t weigh on it.

His critics said, “We not only have the right to review the legality of what the president did, the executive order on banning entry into the country, we have the right to guess what was in the president’s mind when he issues or she issued that order. And, in doing so, we’re allowed to guess at what the president was thinking before he was even president.” But the sense in this case and the lower court decisions that tried to stop Trump went through all of the things he had said as a candidate before he was even employed by the United States government as evidence that Trump was a closet racist and was trying to achieve racist objectives with an order which was otherwise, now at this point, facially constitutional, I think, well-rooted in delegated power from Congress. Think about what would happen to the running of the executive branch if someone could sue and just say, “Well, I don’t care what the president’s order says or what this delegation does. I question the motives behind it.” You could tie up every single decision in the government with that kind of rule. People didn’t care, though, because they were out to stop Trump.

I never thought that my former colleagues, and some of them are still friends, who work in those agencies would turn the vast power of government, again, back inwards and surveil the candidate of the other opposition party for president. I’m still stunned by that.

Richard Reinsch:

I remember thinking about that. I don’t understand the nature of or the law around injunctions, of the ability of one judge to basically stop it nationwide. Maybe you can talk more about that. But this notion, too, it’s sort of like just arguing or having an argument with someone. You can easily shortcut having an argument by guessing their motives or throwing their motives, what you think their motives are, back at them. Motives are very easy to use in that way. But what’s hard are principles and ideas and law. That just always seemed to me a poison seeping into the most formal part of the federal government, being the federal courts, where it really can’t be. Then, also, law professors, but you see this constantly even today, referring to this as the Muslim ban by very well-regarded law professors. It just adds, I guess, to what we’re talking about, this inability to think coherently.

John Yoo:

I was going to say, Richard, it’s bigger than that, and actually I wish I had made your point in my book’s discussion of this because I hadn’t thought of that. But what you’re saying, which I think now that I look back is completely true and we’re seeing it amplified right now in the streets and these protests and everything, is this is the way the culture is … A great example, this is the way the political culture has seeped into the law, which is right on campus now. Yeah, I just never thought of it that way, but you’re completely right. On campus, you see people shouted down, you see people canceled, not for what they’re going to say in any speech or article but what they think their racist motives are behind it or just based on their skin color or what they’ve said dozens of years ago or even what they didn’t say at some point. Right? And if you do that, you short-circuit traditional argumentation, rational analysis. And you’re quite right actually, Richard. If you think about what happened in that case and the cases since with Trump, that style of argument is now starting to pop up in Supreme Court opinions, and that’s sad. But I think you’re right. I think you’re exactly right. I just never thought of it that way. And Trump, in a way, is fighting against that, although he may not even realize it. But that’s why-

Richard Reinsch:

He probably doesn’t.

John Yoo:

… probably people say he’s quite popular.

Richard Reinsch:

Yeah.

John Yoo:

People say he’s popular because he’s anti-PC, and maybe in these reactions, that’s how he shows he’s fighting against that cancel culture dynamic.

Richard Reinsch:

What is another defensive maneuver here is the Obama administration during the 2016 campaign, we all now know, opened Operation Crossfire and proceeded to investigate Hillary Clinton’s opponent, their opponent, on, I think Andrew McCarthy argues in Ball of Collusion, a pretty thin pretext, probably violated Justice Department protocol in investigating political campaigns. Their justification was basically two low-level guys they thought had indicated information about possession of Hillary Clinton’s emails and that justified an investigation. It’s not so much that, but it’s the use of the FISA Court, and maybe we can talk about that. The FISA Court itself is an attempt to limit executive power with regard to domestic or counterintelligence and forces the government to come to a court and show some sort of evidence for wiretapping or engaging in counterintelligence. And, of course, the other party doesn’t get to make an appearance. They don’t even know. But what we now know is the memos that the government put forward there were corrupt in some cases and were not fully revealing, shall we say, of where they were getting their evidence. That in itself, I think, has brought to light a discussion about the FISA Court. How do you see it?

John Yoo:

Richard, yeah, you’re too good a interviewer. I’m not coming on your podcast anymore. This was, I think personally, for me, the most difficult part of the book to write, actually. It was because, you and I have discussed this before and I’ve had the pleasure of going to Liberty Fund conferences where I am often one of the sole defenders of the intelligence bureaucracy, but I was involved with this back in my government days. After 9/11, we amended FISA to expand its scope, and I was one of the people who worked on making it easier to get FISA warrants. One of my views was that, look, FISA came out of this worry that Nixon had used the CIA and the FBI to spy on his political enemies. And I always thought, “Well, FISA was overdone because that’s never going to happen again.” I was like, “Everybody knows that’s a red line. You don’t investigate your political enemies using our current espionage and terrorism powers.”

I worked to loosen FISA so that it could be turned more directly and easily at Al-Qaeda, ISIS, our foreign enemies, China and Russia, because it was really hamstringing our ability to do that. What I never thought … And the guys I argued with at the Liberty Fund conference turned out to be right. I never thought that my former colleagues, and some of them are still friends, who work in those agencies would turn the vast power of government, again, back inwards and surveil the candidate of the other opposition party for president. I’m still stunned by that. In part, that’s why … I don’t know if you remember. Throughout the Mueller investigation, I was always saying, “Trump should not fight it. Let Mueller investigate it because from everything I’ve seen, there’s nothing to it, and Mueller clears him, that’ll be the gold standard and everyone will have to believe it.” Because after I saw the early discussions of how FISA was used, I was shocked, and I’m still shocked that they would use it internally that way. Maybe FISA needs to be strengthened when it’s used in this way. I think Attorney General Barr is doing that. I’m still shocked about it.

What was really happening is the 18th century Constitution says the president has this responsibility and the power to take care the laws are faithfully executed. That means everybody who works on law enforcement works to assist the president and should be removable by him. Comey or even Mueller, they think that law enforcement is a professional function or scientific or technical function and, as Woodrow Wilson wanted, they should be insulated and kept as far away from the control of the politicians.

Richard Reinsch:

Andrew McCarthy said the same thing. He also had a significant career as a federal prosecutor, we know.

John Yoo:

Oh yeah, much more than me.

Richard Reinsch:

Yeah, the 1993 World Trade Center bombers, he put those guys away. But he was blown away also by this blatant abuse of power. We know now one of the lawyers has been referred for prosecution or will be prosecuted. He’s been indicted, who just reversed a brief to say that Carter Page was not a CIA asset, which of course made it look like, “Well, why are you investigating him if he’s already cooperating with the government,” and he just lied about it. It’s incredible.

John Yoo:

I think he’ll be the first guy ever prosecuted for lying to the FISA Court. Ever. It’s still quite amazing.

Richard Reinsch:

I guess my feeling on the FISA Court is do away with it because I think it loosens the accountability of the federal government. I think it gives everyone the wrong incentives. What the executive branch should be is just liable in full for what it does on these things instead of this insurance check of a FISA Court. If it wants to surveil, it should have to own up to it in some capacity. But this also assumes, and we’ll get to this, that Congress itself is willing to really monitor the executive branch and use its constitutional powers to discipline it, which it really doesn’t seem willing to do anymore.

John Yoo:

Yeah. Actually, I think there’s a neat and easy solution to this, although people will think I’m doing it just to expand presidential power. I’m not. I’ve actually got just civil liberties in mind, which was the way it was before FISA, which is the president authorizes surveillance for national security concerns. This is because someone’s a real threat to national security, and then the evidence can never be used against you in court. And if it does, if the government tries to introduce it, I would have a blanket rule just saying the surveillance was never started under the Fourth Amendment, never got a warrant or whatever, so you can’t use it in court. But if it is used in court, then the president is on the hook. He’s individually responsible for its use, and he can be punished for it. That’s essentially what happened with Nixon, and I think that sometimes we don’t need a court solution, and all we need is enough for the political actors to tout a remedy, which is what happened then. I thought that was actually a good outcome in terms of the abuse of those powers, and I think that’s superior … As you say, this current system blurs responsibility and … But that’s the species of the whole thing. It’s a very typical, seems to me, progressive idea about government.

That’s also, I thought, the bigger picture of what’s going on with the FBI. You take out the day-to-day fighting with Comey, with Mueller, what was really happening? What was really happening is the 18th century Constitution says the president has this responsibility and the power to take care the laws are faithfully executed. That means everybody who works on law enforcement works to assist the president and should be removable by him. Comey or even Mueller, they think that law enforcement is a professional function or scientific or technical function and, as Woodrow Wilson wanted, they should be insulated and kept as far away from the control of the politicians. So that’s why Comey thinks or Mueller thinks they have the right to decide who’s fit to be the president, not the voters. I tried to figure out the themes that explained at a broader constitutional level these day-to-day fights because in the Trump era, we’re so consumed by the 24-hour news cycle and the latest thing that the House was saying about Trump or vice versa. But the larger constitutional picture, I think, is this is a fight between the 18th century Constitution and this Woodrow Wilson-inspired progressive theory of government that does not map onto our original constitutional structures.

Richard Reinsch:

I agree with you completely. It’s interesting, too. Watergate, the 18th century Constitution actually worked rather well, and yet we still got a series of progressive reforms out of it, which have made things worse in accountability-

John Yoo:

Yeah, it makes things much worse.

Richard Reinsch:

… and competition between the branches. It’s interesting thinking about Comey. Yeah, in a way it was, “Oh, well, the FBI is actually an independent agency,” or something like that.

John Yoo:

They think they are.

Richard Reinsch:

And the way the media covered it, how dare Donald Trump even think of firing Comey?

John Yoo:

Exactly.

Richard Reinsch:

It must be because you’re corrupt. Oh, and by the way, it’s unconstitutional anyway. What Comey had done frequently was lost, but Trump completely had the power to dismiss Comey. That was never in doubt. He had the power to dismiss Mueller as more of a prudential decision. It always is with Mueller. And it is interesting, as you point out, in letting it play out, he did remove that problem once and for all, and yet he lost essentially two years of his presidency, three years of his presidency.

John Yoo:

I actually think that this is a very interesting case study. I can’t think of another presidency that’s been like this, where essentially … Maybe John Quincy Adams maybe is the last time it’s happened, under attack from Andrew Jackson after the corrupt bargain. This president has spent maybe his first term just playing defense of his own legitimacy, and so that’s why people might complain this is more or less the constitutional now, the certain political science aspect of it. People complain what is the Trump agenda? What is the second term? Nobody knows because he never really had a chance to implement a first-term agenda. He never had the benefit of momentum from an election. Even though his party had control of Congress and the presidency, they got very little done because the presidency was consumed with him defending his own legitimacy. The things that he did do, it’s interesting, I think that they were efforts to narrow the federal government. One of the big things I think he’s done that people don’t pay attention to, I put a whole chapter in my book about those, the deregulation, shrinking the size of government, pulling the federal government back out of interference in state matters. These are not things presidents usually do, and they’re very hard to track and it’s not very sexy for the media, but the extent Trump’s been doing anything, he’s been using his constitutional powers to reduce the federal government’s agenda and activism than he’s been expanding it, which is what we usually elect presidents on after their first terms.

Richard Reinsch:

On this, too, I think this is also the progressive Constitution itself predictably has produced its own interests, hard interests in preserving and in using its powers, and I think that’s what has been working, in another area was during the impeachment matter. If you’ll recall, the whistleblower was Vindman, was his last name.

John Yoo:

Career civil servant.

Richard Reinsch:

Career civil servant Vindman. In testimony, and you quote this, he said that Trump’s views on Ukraine were at odds with what we agreed on in the interagency. I’ve heard that term several times, interagency, and the way it was used there is like, “Well, yeah, we’re the interagency.” So the interagency being, I guess, the nexus of defense intelligence groups and the way they formulate foreign policy and try and implement foreign policy. But his position essentially was, even apart from what you thought of what Trump said on the call, that somehow Trump’s views don’t amount or equal their own, and formulating foreign policy in that sense, the executive is not in control of the executive branch, really. It’s some sort of balance or competition between the president and those who serve permanently in the bureaucracy.

John Yoo:

It’s stunning because if you look at what the founders saw, you look at the great thinkers thought, back to Locke and Hobbes, Machiavelli, they would’ve thought foreign affairs and national defense were the most unpredictable, the most political areas of human life where you do need an executive right there to act swiftly and decisively, Hamilton’s phrases, with energy. And yet you have this permanent bureaucracy thinking, “Oh, no, foreign affairs is something that’s subject to scientific, to technical judgment. How can a president disagree with this?” It sounds like the Ten Commandments brought down from the mount. It’s, “Oh, the interagency process.”

You couldn’t find a better example of how extreme this progressive theory of technical government has gone when you would’ve thought if anything was going to be the most political, it would’ve been … Not political in the sense of partisan, but political in the sense of we vote for someone and that person wields our power and we hold them responsible and accountable and they make their own decision. You would’ve thought foreign affairs, diplomacy, national security would be the most political because that arena is so unpredictable. I think that’s an area where, really, you have little claim to some kind of scientific judgment. It’s not like figuring out how much of a certain substance in the water might cause cancer. It’s quite the opposite extreme because it’s really just human nature that you’re dealing with here, not chemical and mathematical properties.

Richard Reinsch:

I had Steven Teles on a couple of weeks ago to talk about his book, which is an assessment of where the Never Trump movement has gone. He walks you through their thinking, and he breaks them out into different groups. It’s the foreign policy group that’s been, not surprisingly I think, the most assertive and determined from the beginning, and Teles makes the point that this is a bipartisan group, and it’s probably the one area left in Washington where people serve in other parties’ administrations if given the opportunity. There’s a consensus that’s been working in foreign policy, as you know, for 30 years, and Trump was the first significant challenge to that other than other more minor figures. So I think they’re using the power of the government to defend their interests. It just so happens that this seems to run up against the Constitution itself.

John Yoo:

Yeah, that’s a nice point. When Trump uses these shorthands, these inflammatory words, there is some truth behind it. I don’t think there’s a deep state in the sense that I think the phrase first came out in the study of Turkey, but there is a permanent bureaucracy that has interests. And I don’t think there’s a swamp, but there are interest groups in Washington which clearly interfere with the workings of the government to get their client’s way, and I think you were probably right. Trump barges into foreign policy and he claims it’s been controlled by these elites who have suffered failures. I think the American track record’s been better than Trump might say, but at the same time, Trump is certainly right to say that he was elected in part to blow up that consensus and introduce a new voice.

And then foreign policy’s very interesting, and we’ve had these constitutional fights about foreign policy and the bureaucracy. As supported somewhat by Congress, the traditional view is to maintain or even expand American deployment and involvement in the world, and Trump is on his own reducing them, withdrawing from the agreements. I actually like to think it proves I was right all along about the war powers debate, right? Because if you thought the declare war clause idea, right, that you have to declare war first in Congress and then the president carries out just like the way Congress passes a law and then the president carries out, then how can the president withdraw troops from Afghanistan, Syria, and Iraq, how can the president terminate all those agreements when Congress is opposed?

To me, it shows, look, I was right all along. The president does have a fair amount of unilateral authority on foreign policy because he should be able to reverse all those things on his own, but yet everyone acknowledges that he can’t. But interesting thing, again, it shows that the president is advancing his agenda not by … It’s almost like, to use a fancy word, it’s like a presidency of abnegation, right? It’s a presidency of reducing power, not claiming and expanding power like Obama had.

Richard Reinsch:

Thinking about the wall, you write about Trump and the wall and the construction of the wall. There’s also this element where he’s playing with things that have been established long before, and so in that case, that he was violating the law, in a sense of because he took money that was appropriated for the military and put it towards the wall. How should we think about emergency declarations by the president, and what statutory authority did Trump have in that regard?

John Yoo:

I actually think most people who are opposed to it are opposed to just the idea that the president could do it on his own without a specific new congressional pot of money. But when you actually look at the statutes that are there on the books now, several of them actually passed by Democratic congresses, this is not an extraordinary or even, I would say, unusual exercise of authority. There’s something called the National Emergencies Act. It actually doesn’t grant or take away any powers. It just says if the president declares a national emergency, please tell Congress about it, please make it public. Doesn’t even define what a national emergency is. And then there’s other statutes on the book. There are hundreds of them which talk about what you can and can’t do in a national emergency, and there’s one that says if there’s a national emergency, the president can move money from one military construction budget to another military construction budget. It’s actually not even that controversial a statute. I bet it’s never been talked about before because it’s so much a matter of just our internal bookkeeping. So if the president says, “I think” … Gosh, I got to think that one thing that you could say was a national defense interest was control of the border. If you think about the history of our country, control of the border was the primary national defense interest for most of our history. It’s not till World War I we start really caring about what happens in Europe or Asia as part of our national defense.

Most of our history, our military was a border control military to defend the homeland, defend our borders. Seems to me it’s not difficult to say the president can declare a national emergency to create a wall along the border. Now, there are people who say, “Oh, well, what happens if progressives get in power and they’re to declare a national emergency over the climate?” Well, I think there’s a big difference between saying some kind of social problem or general environmental problem like poverty, crime, the climate is quote-unquote a national emergency versus specific events like disorder or inability to control a border.

The thing I always say is if you think that you show restraint or not on the border is going to deter progressives from using all these powers anyway to get their way on climate change stuff, I think that’s a whole other fight to have in the future. I think it’s a very distinguishable, different case. But let’s be frank, the real problem is that … It’s not that the president has claimed constitutional powers. The Congress decided to give huge amounts of authority away, and unless we’re going to figure out a way to curb all that through a non-delegation doctrine that really works, then I don’t see why there should be one kind of constitutional rule that restricts Trump when he’s president but empowers all other presidents because they’re not Trump.

I think what’s unbelievable is that the Supreme Court then comes in and says, one, “You’re not allowed, President Trump, to stop something because you think it’s unconstitutional. You have to keep doing it until we, the Supreme Court, decide it’s unconstitutional.” And then the second thing they said is, “If you want to undo President Obama’s order, you have to follow this Administrative Procedure Act.”

Richard Reinsch:

Well, what people ignore is there are a lot of things Congress can do if it doesn’t like an emergency declaration.

John Yoo:

Oh yeah. Just don’t refill that account with money.

Richard Reinsch:

Yeah. If Biden were to say, “There’s a global warming emergency, and I’ve got to do this, this, and this to fight it,” there are all sorts of ways. Not to mention that there’s also public opinion, but the quickest would be defund it, not appoint anyone. There’s all sorts of things they could do to hobble the government. The Congress holds the most power. We forget that. Question, we can end with discussion of Obama, particularly in the last two years of his presidency, resorted to a strategy of government by executive and engaging in actions that exceeded statutory authority, including the DACA program, the so-called DACA where those who were brought here as children received legal rights and privileges without authorization from Congress. And he did that in a number of areas, but that’s the one that’s come up in the Trump administration. Trump administration reversed it by an order from the attorney general, and then the Supreme Court recently ruled that that reversal of DACA was itself a violation of the APA, the Administrative Procedure Act. I guess my question to you is what exactly … Because I’ve received conflicting accounts of how to think about it. But what do you make of that decision by the Court and help us maybe to understand that?

John Yoo:

I think the Court is terribly mistaken on DACA.

Richard Reinsch:

Let’s ask this. Did the Obama administration follow the Administrative Procedure Act when it implemented DACA?

John Yoo:

No, no. But I think it’s good to look at it through the lens of the Court because it’s part of these disturbing trends in the nature of constitutional law in the Supreme Court that you’ve talked about in previous podcasts, which is this claim of judicial supremacy. Because it’s easy, actually, to break it down, what’s happened. So President Obama uses his prosecutorial discretion to say, “I’m not going to enforce immigration law against this category, the DREAMers,” about an estimatory two or three million cases. Then he issues DACA two years later, which is another six. So it could be eight or nine million people, could be more than a majority, a significant part of the illegal alien population. Okay. So I happen to think that’s unconstitutional. I don’t think the president’s prosecutorial discretion says, “I’m just not going to enforce the law because I disagree with it.” There’s an interesting debate about whether the president can refuse to enforce unconstitutional laws, but no one thinks the immigration laws here are unconstitutional.

So I don’t see why President Trump can’t come into office and say, “I am changing the level of prosecution of these cases as president,” and the primary reason is I think what President Obama was doing was unconstitutional, in my view. I think that happens all the time in the administrative … In fact, one of the chapters in my book, I think one of the president’s powers that we don’t think of as a power is what I call the power of reversal, which is the power to undo things that past presidents or past governments have gone. I think that’s pretty standard.

I think what’s unbelievable is that the Supreme Court then comes in and says, one, “You’re not allowed, President Trump, to stop something because you think it’s unconstitutional. You have to keep doing it until we, the Supreme Court, decide it’s unconstitutional.” And then the second thing they said is, “If you want to undo President Obama’s order, you have to follow this Administrative Procedure Act.” Some of the listeners are quite expert on this, but it’s a long, detailed process for issuing decisions of the administrative state. But it makes no sense here because President Obama didn’t use it when he made the DACA decision in the first place. He just said, “It’s a matter of my discretion.” So the Court says, “We’re going to make you use a long, burdensome process to undo a decision the previous president made in his executive authority under the Take Care Clause that didn’t follow that process.” That makes absolutely no sense.

You can say when branches of the government undo their own actions, they usually use the same form, right? The Supreme Court overrules a precedent, they issue a new decision. Congress wants to repeal a law, they pass a new law. Presidents want to undo executive orders, they just issue a new executive order. I wrote a kind of tongue-in-cheek piece about this saying, well, if this is true, then President Trump could basically do anything he wants now and say, “I’m not going to enforce this law, I’m not going to enforce that law,” just like Obama did, just search/replace immigration out of the DACA opinion and instead put in taxes, and it’ll take … President Biden will have to use the APA to undo it under the Supreme Court. That makes no sense at all, it seems to me. But what was behind it was this bigger trend, disturbing trend, I think, of the Supreme Court saying, “Only we get to decide what’s constitutional and unconstitutional. None of the other branches get to. President Trump doesn’t get to decide whether DACA was unconstitutional for himself. And we’re going to force the presidency to act in certain ways that we think,” right? I think that’s a stunning declaration of judicial supremacy that I think got missed because it’s about DACA.

Richard Reinsch:

That, and I also think there are just special rules right now against Trump. I’ve thought that with the Supreme Court and the way they treat the Trump administration. This is also troubling, we saw this in the Obama administration, in the sense of rules are issued by agencies outside of the APA on a regular basis. If this is the case, it would seem to incentivize that even more, which is-

John Yoo:

Yeah, so I think that’s right.

Richard Reinsch:

So you could deal with basically a lawless executive government now receiving a blessing from the Supreme Court, which has a ratchet effect on what it can do, one way ratchet effect, it seems to me. Yeah, no, troubling. John, I guess as you think about executive power, what is this that may sum this up for us as you look at your book?

John Yoo:

I don’t think President Trump has really innovated or impacted the constitutional presidency as much as he’s certainly disrupted the political norms of the office. There are other people who … I like to think I study those, too, but there are people who are much more expert at how presidents relate to the public, how they use the media, their relationship with political parties, and congressional/executive relations. As you started, you asked me why I wrote the book. I wrote the book in part because I wanted to show how Trump was operating actually fairly within the established practices, stemming all the way back to Washington and all the way back to the decisions at the Philadelphia Convention and the state ratifying conventions about the presidency.

He hasn’t been disrupting the constitutional presidency. In fact, if anything, it’s been his critics, as you just mentioned, the people who think there’s a special constitutional law that should apply to Trump. What worries me, though, is that people in their efforts to bring down Trump, to try to constrain the presidency, are harming the office for the future, no matter which party holds it, in the office’s ability to protect the country, to administer the laws, and the purpose of the executive, to respond quickly and decisively unforeseen events.

Richard Reinsch:

All right. Well, with that, John, we appreciate it. We’ve been discussing with John Yoo his book, Defender in Chief: Donald Trump’s Fight for Presidential Power. Thank you so much for your time.

John Yoo:

Ah, thanks a lot, Richard. And I promise I’m bringing Richard Epstein with me back on if you have me back.

Canceled at Cal Berkeley Sep 01, 2020

Richard Reinsch:

Today we’re talking with Steven Hayward about travails in American higher education made possible through cancel culture and Steven Hayward’s particular experiences at the University of California Berkeley. With this unsettling development, Steven Hayward, we’re glad to welcome you back to Liberty Law Talk. When you were last on, we discussed your book, Patriotism is Not Enough: Harry Jaffa, Walter Berns, and the Arguments That Redefined American Conservatism. You’re also the author of a multi-volume history, The Age of Reagan, and numerous other essays and reviews and studies. You’re currently resident scholar at the Institute of Governmental Studies at UC Berkeley. Of course, many will know you from your almost daily blogging at www.powerlineblog.com. We’re glad to have you.

Steven Hayward:

Well, thank you, Richard. It’s great to be back.

Richard Reinsch:

I want to talk about your particular experiences at UC Berkeley with some rather unhinged attempts to remove you from campus there by students and less than heroic deans responding to those students. But in general, I’d be interested to get your opinion on this, I think what we’re in now in regard to American higher education is sort of the mop up phase of the Marxist Gramsci’s famous call for a long march through the institutions by the left. I think they’ve marched through and they’ve captured all of them basically. Now they’re in a position of such dominance that there’s really very little pretense that they need to talk to anyone other than themselves or deal fairly and equitably with anyone other than themselves with regard to education and other cultural journalistic enterprises in America.

Steven Hayward:

I think that’s right. I mean for a long time I thought, like a lot of people did, that maybe I was too accepting of it. That the worst of the radicalism on campus was confined to women’s studies and English departments and language departments. Oddly enough, geography as a discipline went way left quite a long time ago. But that the other disciplines, the main social sciences, political science, sociology, history, although liberal for the most part and they have been for decades, they hadn’t completely succumbed to craziness. Well, that’s mostly wrong.

Some of the older disciplines are still okay in a relative sense, but you’re seeing that the administrations have certainly thrown in with what you might say the new woke culture that we live in and still be on the college campuses as we saw with what happened with James Damore at Google out in Silicon Valley. You may remember and listeners may remember when Sam Abrams at Sarah Lawrence, I think is where he is, published that article in The New York Times two years ago saying the problem now in universities is the administration has gone in on this. Of course, he had ferocious blow back over that.

One of the controversies at Berkeley right now and at several other places is essentially the demand that all faculty sign a diversity loyalty oath and that diversity will now be used as a criteria for hiring. Well, this is simply back to the McCarthy era. There is some blow back against this even at Berkeley and other UC campuses, but it’s all been put on the back burner because we’ve shut down for the virus.

Richard Reinsch:

I graduated from my undergraduate institution in 2001 and from law school in 2004. I remember in both institutions, one of which was a very progressive institution, we got a lot of mileage out of just pointing out the lack of representation of conservative, classical liberal voices on the campus. We seemed to find our voice that way. There was an implied tolerance and willingness to hear us out, an acknowledgement that, “Well, we basically own most of the campus, so we need to do this.” It seems to me that doesn’t even really exist anymore. What really does exist is the use of the university itself as Glenn Loury pointed out recently with Brown University’s statement, its anti-racism statement that the university itself becomes a social justice vehicle or becomes essentially an ideological enterprise. Of course, it’s been going on now for many years at UCLA where the professors have to write a statement, I think it’s every year, of how they’re furthering diversity with their teaching. You think of the McCarthy era, but this is something of a religious oath or test that is being required.

Steven Hayward:

That’s exactly right. I don’t know. I see no sign of anybody in administrations at universities recognize that this is a problem for them. I will say this about Berkeley, it’s sort of odd that I got there in the first place, and long further back, we can go into it a little bit if you want. A lot of people I’ve talked to in the political science department where I’ve spent some time and taught some classes and also some people in the administration say, “We know we have a problem with not enough conservatives on the faculty.” I have to give credit to the Berkeley administration. They have tried to be accommodating to the College Republicans who are not always as prudent as they might be. They invited Milo, right?

Richard Reinsch:

I remember that.

Steven Hayward:

Often referred to as the Milo riot. However, they don’t know what to do about it. They simply rubber stamp any of the most radical ideas that come along. This goes back at least 50 years to the ’60s when you had the SDS and other student radicals at the time saying universities should become a node of political activism. It’s not a place for learning anymore. Yeah, I think you’re right. You mentioned graduating, what, 30 years… wait, 20 years ago now. Sorry, you’re a young guy. I had a friend of mine who had a daughter, actually it’s my writing partner at Power Line, John Hinderaker. He has two daughters, 10 years apart. They both went to St. Olaf. One graduated 10 years ago, and one graduated just this last year. The two daughters got together and compared notes. The second daughter just graduated said… or the first daughter reflecting on her experience, a little bit like yours, just in the last 10 years things have gotten so much worse at that same little bucolic campus there in Minnesota.

Richard Reinsch:

Yeah, St. Olaf. You mentioned the administrators, and I think that’s something people don’t understand. You and I understand that this incredible explosion of these people with these jobs on campus has always happened roughly in that same time span, in the last 10 to 20 years, outpacing faculty hiring and part of… I mean a public choice analysis would be they’ve got to find something to do, something to make themselves worthwhile. But there’s also an ideological component here, too, and these are equity, diversity, inclusion and administrators have really found their measure in appealing to students for greater fairness or greater representational fairness on the basis of gender or race or various status. That becomes a way in which a campus is constantly in upheaval, but also this totalitarian mentality where you really do get into forcing people to think in certain ways, speak in certain ways in the name of fairness and equity. I think that’s sort of also what’s been happening or it has been happening on campus. Have you seen that? You also taught at the University of Colorado Boulder, itself no shrinking progressive violet.

Steven Hayward:

Right. Well, thinking about administrators, every institution now has a dean of diversity and inclusion and usually a large staff. It’s amazing how large the staff can be at the larger universities like a Berkeley or Michigan.

Richard Reinsch:

Six figure positions, right?

Steven Hayward:

Yes, exactly. Again, one of the more significant moments in the whole story with the Oberlin College libel suit brought by the bakery that was judged by a jury, what, a year ago, whatever it was, was a $25 million judgment. What they found was the dean of Diversity and Inclusion had been participating with the students and organizing protests against the bakery. Well, I looked up the dean. I forget her name now. Where’d she come from? Well, she came from women’s studies. You look at her publications and it’s all the deeply left-wing politicized radical woke stuff. You’re now going to make that person an administrator? I think you’ll find that kind of profile at a lot of these administrative positions at colleges around the country. Not as true at Berkeley. I don’t think Berkeley, for instance, has a bias incident response team like Michigan had or may still have, and I’m not sure whether it’s the dean or provost, but the person who does diversity and inclusion at Berkeley right now is from the sciences. I think he’s a biologist. I’ve met him. I’m sure he’s a liberal, but he doesn’t seem to be quite as far gone into the fever swamp as you find in so many places.

Richard Reinsch:

What’s a bias response team?

Steven Hayward:

Well, bias incident response team is where students or faculty, but it’s usually students, can report instances of racism or sexism or transphobia. Whether it’s something you said or written or said in class even and they’ll come and investigate this. Of course, we know how these investigations go. It’s leading to increasing amounts of self-censorship by students and faculty.

Richard Reinsch:

It was a sign also things were going wrong, Trump wins in 2016, and various universities providing safe spaces on campus for the students to talk about this. One of the activities was to color or to express your feelings with color. I thought it was hilarious. In general, it seems to me something in the background here, though, is really it’s a Supreme Court opinion, Bakke v. Regents of University of California system 1978, where there’s this mention by Justice Powell that diversity could be a rationale on the basis that they bring their perspective. That becomes in itself a good. But of course, that doesn’t really gel with affirmative action which was about remediation. Diversity becomes an ever-springing justification for this sort of thinking that you’re going to tie an ideology to a gender or to a race. It seems this has just… whatever Powell intended, and it’s not just higher education, it’s now corporations, it’s now journalism, this has gone beyond this. It’s become, I guess, in a way just fundamentally liberal in its consequences.

Steven Hayward:

It’s probably worth reminding listeners a little bit about both affirmative action, how it began, and then the Bakke case. If you go back to the original executive orders from first actually John F. Kennedy and then Lyndon Johnson and then the initial programs that were adopted in the private sector and universities, the idea was outreach. Let’s find minorities who, for whatever reason, bad schools or whatever, have the ability and who should be recruited into the employment pool and then hired on merit equally with anybody else. Well, that didn’t last very long. It became de facto quotas pretty fast. In the Bakke case in the ’70s, you have the University of California Medical School at Davis reserved, I think, 21 spots out of 100 for the medical school for minorities no matter what your MCAT scores were and grades and so forth. Allan Bakke sued. He had very high scores but had been turned down twice. Meanwhile all 21 of the students admitted on the quota had test scores and grades not even a little bit below his but way below his.

So the courts said, “NO, you can’t do that. You can’t have a numerical quota.” But the whole opinion of the court was a mess because you had all these different concurrences and dissents. So Justice Powell, as you said, was the swing vote saying, “Bakke wins. You can’t have a quota, but diversity should be a factor.” Now, I’ve come to the heretical views just recently that maybe that case was wrongly decided. Maybe we would have been better off, I think, on principle according to a rightful understanding of equality and individual rights, but maybe politically, socially, we would have been better off if the court had said, Fine. You can have quotas. Go ahead. Make my day.”

I think it would have been like busing was in the ’60s and ’70s, hugely unpopular including even with minorities. I think it would have all collapsed from its own weight. Instead, everybody said, “Ah, diversity. There’s a perfect thing to dodge behind.” Now it’s become this huge ideology. I know you follow this closely. It reminds me a little bit of the unintended consequences or perverse results of the Chevron case. We talk a lot about the Chevron doctrine. That was a case the Reagan administration won in court. It’s become a nightmare for the bureaucracy, and now it’s the thing we most want to get rid of. Well, I think the Bakke case is similar.

Richard Reinsch:

It seems to me also a part of this diversity unfolding or unintended consequences, perhaps, the University of California system recently voting to eliminate use of SAT and ACT in admissions requirements, I think, after this year. Of course, more institutions will follow suit. You’ve got the University of California Los Angeles, UC Berkeley. These are high-performing institutions that will not use this basic meritocratic criteria. I think it gives the administrators free rein to shape this campus in the way they want.

Steven Hayward:

Yes. By the way, I should be very specific about this. The faculty at Berkeley, and I think maybe UCLA but I know at Berkeley, faculty Senate actually voted against the idea.

Richard Reinsch:

That’s right. I read that.

Steven Hayward:

I think that’s quite significant. So your liberal faculty said, “No, wait a minute. We want to keep the SAT.” Why is that? Well, I can tell you. Berkeley students, for the most part, are really good. It’s a hard school to get into, and I think the faculty respect this. They want the smart students and they understand… What’s really going on here is, and I picked this up four years when I first showed up there, that the idea of meritocracy is under attack from the left. It has to be because in California the real reason is the Asian kids, a large Asian population. They get super high test scores. So the first thing that the universities diversicrats want to do is they want to get rid of our Prop 209 that banned affirmative action admissions for our public universities. Then they want to be able to shape the demographic of the student body explicitly according to race, and you have to overthrow the idea of meritocracy to do that. So the SAT is just step one, and grades don’t mean much anymore because of grade inflation. So at that point we are going to get back to essentially having quotas, and no one will admit that that’s what they’re doing.

Richard Reinsch:

It’s absolutely amazing. It’s absolutely amazing that it happens as America increasingly becomes this multiracial society.

Steven Hayward:

Yeah, yeah.

Richard Reinsch:

I mean it’s amazing to me. Let’s talk about, you go to Berkeley as a visiting professor. You’re a conservative. You teach, if I remember… You talk about this, by the way, in a really nice, entertaining, well-written essay in the current edition of Commentary. Your piece there is “How I Ran Afoul of Campus Cancel Culture.” You go to Berkeley to teach, what, a couple of classes in the undergrad department. You have a good experience for the first couple of years, so much so that you wonder if you’re not doing it right.

Steven Hayward:

Yeah, right. I kept thinking, why are there not protests? The student newspaper wrote a nasty article about me when I arrived, but that’s par for the course. Nobody paid any attention to it in the administration or in any of the departments.

Richard Reinsch:

Well, you said they wrote a mean piece about you in the student newspaper, but it actually helped your student enrollment.

Steven Hayward:

Well, this is the funny thing is that I suddenly… I was teaching a large lecture class on the Constitution actually in political science that no one had been teaching for a while. I had a long waiting list to get in even with a room that held 150 people. I had a couple of students, one kid actually… I really liked this kid. He was very progressive, a big Bernie Sanders supporter. He spotted me one day walking across Sproul Plaza. I hadn’t met him yet. This was before class. He walked up to me because he looked me up, I guess, and says, “You’re Professor Hayward.” I said, “Yes, I am.” He goes, “I’m taking your class. I want to argue with you.” I said, “Great!” By the way, he was great in class. He was very smart, very left but sat right in the front row and bring things up and made the class a lot better.

That’s the thing I think a lot of left-leaning people on campuses don’t understand is they’re impoverishing their own campuses. He wasn’t the only one. I had another kid take three classes from me. It wasn’t till the third class, I was like, “Gosh, Mr. Howard, you’re a real glutton for punishment.” I get talking to him one day. I find out he’s a big liberal Democrat and close personal friends with Nancy Pelosi. But he said, “You’re the only conservative I’ve ever been exposed to.” It’s interesting. It’s challenging for me. The style of the class is different. I think that’s maybe a longer subject another day. Many conservatives teach differently than leftists do. Students understand this now.

Then what happened is that some students looked me up and had a freak out and started a Twitter storm and wrote long memos, heavily footnoted to all the woke literature about what a threat I was to them because of my racism and sexism and homophobia. The dean, unfortunately, folded on the spot which I think was unfortunate. I think he actually regrets it in hindsight. To make a long story short, the fuss didn’t end with me. There were a bunch of students considering demanding that the dean resign.

Richard Reinsch:

Talk about that for a minute. That’s an interesting thread.

Steven Hayward:

Well, I think most conservatives whether their libertarians or your traditionalists or Straussians or whoever, they tend to take the text more seriously. They tend to teach from original texts rather than textbooks. Above all, I think I’ll say this as a collective statement, we tend to be anti-historicists. We take ideas seriously. We read Edmund Burke not out of antiquarian fascination but because we think he might be right about things. He might be right today. You average liberal doesn’t think that way. They think ideas change with the times. They’re all basically Hegelians. If you tell a student that actually what Burke or Tocqueville or somebody thought doesn’t really matter, it’s not relevant today, then why would you take it seriously? Why would you work very hard reading it?

Richard Reinsch:

What year did you start teaching at Berkeley?

Steven Hayward:

Well, back in 2017 I was a fellow and the fall of 2016, so I was there for the election. And you’re right. They had a collective freak out on the campus when Trump won.

Richard Reinsch:

Yeah, I remember reading it. You start teaching in 2017, and things go pretty well. How did you engage with…? How did cancel culture land on you?

Steven Hayward:

Well, I should go back up a step. It happened that the Goldman School of Public Policy at Berkeley, which is, by the U.S. News ranking, the number one public policy program in the country. Actually ironically, it was the dean of the school there, Henry Brady, a very distinguished political scientist, who had initially contacted me, I don’t know, five, six years ago when I was teaching at Pepperdine saying, “We’d like to get some visiting conservatives come to the Goldman School. Would you be interested?” I said, “Maybe.” I went up and met him and met a bunch of faculty, and they really wanted me to come. Then what happened is competition. It’s a good thing. Some people who know me, I didn’t know them, but who know me in the political science department got wind of it and then John Yoo at the law school also. They said, “Yeah, the Goldman School’s great, but why don’t you come and spend time with us at public policy and the law school. By the way, we’ll keep you for two or three years if you wanted.” I thought, “Well, that sounds like fun. I go in for that.” So that’s what happened. But Dean Brady kept after me. So this year I said, “Okay, I’ll come teach for the Goldman School this year.”

Then what happened is that some students looked me up and had a freak out and started a Twitter storm and wrote long memos, heavily footnoted to all the woke literature about what a threat I was to them because of my racism and sexism and homophobia. The dean, unfortunately, folded on the spot which I think was unfortunate. I think he actually regrets it in hindsight. To make a long story short, the fuss didn’t end with me. There were a bunch of students considering demanding that the dean resign. One of their memos was about all of his years of macro and microaggressions and harming minorities at the Goldman School that would last for years, which not many things deans do last for years but there you go.

Richard Reinsch:

I want to get to that in a minute. One thing you note in the article is, which I thought that was pretty funny, you had two course descriptions that they objected to and that caused them upset. One you had “History of Conservative Thought from Burke to Bannon”, as in Trump’s Bannon, which at first thought, I said to myself if I was teaching that I probably wouldn’t have called it that. But it’s actually kind of a smart thing to do particularly in that environment in terms of getting students. In any event, Bannon is something of a thinker. I’m not saying he’s right, but he does have some ideas and arguments. He’s read some texts closely. So it’s not exactly beyond the pale that you would read him particularly now. And they couldn’t handle that.

I mean one reason why this was such a shocking episode is that it’s in a public policy program, which is otherwise very quantitatively oriented even if liberal. It’s not critical theory and some of these really insane disciplines that exist out on the… well, not on the fringes anymore. That’s what made it so startling.

Steven Hayward:

Yeah, that was funny. That was the course title I used in the political science department. Yeah, you’re right. If you talk to faculty these days especially at big universities and they say, “Course titles are very important. It’s a marketing tool like anything else.” I taught the course, one political science and had a pretty big class, again, with a full spectrum of ideological views and a lively discussion. So I said, “Oh, why don’t I teach that class at the Goldman School?” They said, “The class sounds fine, but the title is way too outrageous for our very liberal students.” So they suggested this very anodyne title. I forget what it was now, but it was very bland and background… Anyway, I taught the course. It was a much smaller class at the Goldman School and very little discussion. I had to argue with myself half the time because I couldn’t get students to… By the way, I tell students right off the bat nowadays that I’m conservative but you’re more likely to be rewarded in class if you argue with me than simply nod your head or stay silent.

I want argument. I don’t ever tell the students they’re wrong. I believe a dialectical, almost like a seminar process, that went, I think, way off crazy, I’ll say, “Well, blah, blah this, blah, blah that.” Then if we go on for a while and say, “Okay, we’ll just leave it there.” Then we move on to other people and other things. Anyway, I’m pretty easy going in the classroom. But still, the class was a huge contrast to the political science classes I’ve had.

Richard Reinsch:

In class, and you quote an administrator at another school, at American University, saying that students seem reluctant to engage in difficult questions and debates. None of that surprises me. Did you find that to be the case in this course and/or something else that students themselves don’t trust their own reasoning? They don’t actually think words and arguments can really touch anything in a true way.

Steven Hayward:

I don’t know how many of them really thought it through to even one or two levels of philosophical tail as you suggest, at least not in the departments I’ve been in. I mean one reason why this was such a shocking episode is that it’s in a public policy program, which is otherwise very quantitatively oriented even if liberal. It’s not critical theory and some of these really insane disciplines that exist out on the… well, not on the fringes anymore. That’s what made it so startling.

Richard Reinsch:

It’s interesting you’re saying about the public policy school, too, I supposed their thinking is, “We’re not going to interact in our own careers. We have to put up with the politics of, but we’re not going to really interact with conservatives or libertarians or classical liberals” at the level of wherever they’re going to end up: high bureaucratic positions in the federal government, foundation positions, whatever they’re going to go on and do. They have the answers before them so, “Why are you trying to have us read primary texts even? I wonder if that was the public policy attitude.

Steven Hayward:

Well, it could be. Here’s where having criticized Dean Brady I should give him some praise. He’s a liberal. He’s not a leftist, but he’s an old liberal. He said, “Look, I think it is important for students to know about Edmund Burke’s argument and Hayek. He says, “There’s a great value in reading Hayek. Students should know about Hayek.” Dean Brady says, “I think Hayek’s critique of central planning is correct, and students need to know that.” By the way, he was a big fan of James Q. Wilson. Didn’t agree with him about everything. What he really wanted from someone like me at the Goldman School was to be something like James Q. Wilson. Well, what was James Q. Wilson interested in his last decade of his life? Moral questions, questions of character. I don’t think that would fly right now.

Richard Reinsch:

Marriage. He wrote a book on marriage, right?

Steven Hayward:

Marriage, exactly, right. But think about it for a minute, I think there’s always been uncertainty… just to get off a little bit into the short weeds anyway. There’s political science that tries to understand political life, and public policy is sort of the practical offshoot of it, I think. A lot of people there, they’re going to become, I guess, I don’t necessarily want to say technocrats the way that word’s usually meant, but they’re there… Maybe actually I’ll borrow from Marx. Political science students want to understand the world. Public policy students want to change it. Even though a lot of political science graduate students are pretty left, some very left, although there’s also some conservatives among the political science graduate students at Berkeley… Public policy, I don’t think there are any conservative graduate students. I think the number is zero. They’re there to want to change the world. I think you’re right. I think when you’re in the big bubble of the university, you don’t think… Well, I mean you know the general public narrative is that Republicans have only won elections by cheating, by deceiving people, etc., etc. They don’t take the argument seriously.

Richard Reinsch:

This is not an original observation, but you said number one public policy school in America, which aspires to be, I assume, not merely a national school but an international school and the positions its graduate students aspire to. Yet, you’re the only conservative faculty member. Maybe there’s some moderate progressives, but you’re the only one, and the students almost uniformly left. To me, that’s indicative of just an intellectual failure going on. When that’s the case, it’s not merely what texts are you reading. It’s what questions do you not even know to ask. Which leads to, this is in the article, you’re denounced by student groups called Equity in Public Policy who form a consortium to attack you, Students of Color in Public Policy and Black Students in Public Policy. They said that Steven Hayward was, quote, “a climate denier who actively promotes ideas that harm communities of color and other marginalized groups and for your, quote, ‘repeated racist, misogynist and transphobic statements.'” Steven Hayward, how do you plead to this?

Steven Hayward:

Well, I got a whole bunch of new readers from my post on the Power Line blog which can be pretty polemical. Of course, what am I usually doing? I’m usually citing Thomas Sowell, John McWhorter, Coleman Hughes. I think maybe I’ve written only two things ever about same sex marriage, and usually it was analytical things. I remember writing an article once about my conversations with Jonathan Rauch about same sex marriage. I’ve written a couple of things about what, I guess, we’d call… Is transgenderism actually a formal ideology?

Richard Reinsch:

I think so.

Steven Hayward:

But I’ve written a couple things about the identity question and as a very skeptical thing but not hostile because I talked about transgender people I know and what they say and say, “Here are things to think about.” But the point is if you’re not… It’s a very narrow orthodoxy I think this is what we all know. It was a shock to read it. The climate thing is completely wrong. Of course, that is true for a long time that you’re either a true believer or you’re the moral equivalent of a Holocaust denier. You’re not allowed to be a lukewarmer, which there’s a lot of people who fit in that category like Matt Ridley, for example, and lots of others and including, by the way, some Berkeley faculty in the physics department. But that’s where we are. All these talks of tolerance turn out to be pretty particular and narrow.

Just the fact that I had dissented from the party line in the past and that I was wholly unacceptable. I think just using the phrase “free market environmentalism” was like raising a red flag for a bull. Everybody freaked out.

Richard Reinsch:

I talk a little bit about this. You also had this very negative response from a course you taught. I think this actually ties into what you just said about public policy students. You were going to teach a course on approaches to environmentalism outside of the mainstream. I think a part of the course description is free market environmentalism, and you were going to teach the book, which I’ve read and actually used in conferences, called Free Market Environmentalism by Terry Anderson and, was it, Donald Leal, which is largely seen as the book that launched free market environmentalism. I think it came out in the early 1980s. This was triggering and hateful and unsettling. I thought, “Oh my gosh, we can’t even have a conversation about that in a public policy school.”

Steven Hayward:

That was always amazing. I should fill in a little bit. Unless somebody knows this field, they won’t necessarily get it from the description that I printed in full in Commentary. It was going to be Free-Market Environmentalism, Ecomodernism, Degrowth, and, I forget, Other Heterodox. So I was going to do… Degrowth is sort of a revival of Malthusianism. We’ve got a couple of prominent faculty at Berkeley who were behind this. Plus I have a couple of people I know who are sort of on the fringes of that. I was going to invite them to class as guest speakers to represent the point of view and disagree with me.

Then one of the other key books I was going to use was Elinor Ostrom’s Managing the Commons. Elinor Ostrom was, until last fall, one of the only women to have won the Nobel Prize in economics, and near as I can tell she is totally unknown by anybody at the Goldman School. Her work is in a nether world in between old control and command regulation and pure markets and property rights. As such you get a whole… ecomodernism or the aggressive environmentalists who have broken with the old Malthusian and want to talk about the importance of economic growth and technology as solutions to environmental problems. So it was going to be a whole spectrum of things. I know some of the ecomodernists in the Bay Area and was going to have them in to talk.

I wasn’t even going to talk about climate because I think climate change is wrecking the environmental movement. It’s just swallowing the whole thing up alive. I thought this would be something different. But it didn’t matter. Just the fact that I had dissented from the party line in the past and that I was wholly unacceptable. I think just using the phrase “free market environmentalism” was like raising a red flag for a bull. Everybody freaked out. Because my course in the fall totally went off without a hitch. There was no fuss. It was, as I say, a bit of a disappointment in the classroom dynamic. It wasn’t until my spring graduate seminar was announced and was listed, within 72 hours all hell broke loose.

Richard Reinsch:

It’s interesting. Going back to something you said, free market environmentalism requires a bit of policy work. It requires a pretty deep understanding of economic concepts and then applying that to problems in environmental policy use and how various companies engage with the environment and getting them to engage with it in a pro environmental way but using market ideas to do so, not regulation. Now maybe they weren’t even at that level in their objection to you. But it’s sort of like a recognition that this doesn’t involve us as much. This would not be for the public policy students to engage in really. It’s pro business or something like that. I wondered if maybe that was their thinking, but that may have been too deep.

Steven Hayward:

I think you’re probably right about that. I know Larry Alexander at the University of San Diego Law School used to teach a course on the environment from a contrarian point of view. He said it was known among the law students as the polluters’ perspective. Of course, if you know the free market and the environmental literature especially the thread of it that talks about common law remedy, and it often comes as a surprise to environmentalists when I explain to them the fact that the regulatory state they like so much actually has foreclosed a bunch of common law remedies that ordinary people can use against corporations, against the government. Interestingly, the people understand this clearly are the whole market historians, like I’m thinking of the guy who wrote The Transformation of American Law at Harvard years ago, I’m blanking on his name right now or Gabriel Kolko whose famous for The Triumph of Conservatism.

For public policy students who otherwise are pretty quantitative, I mean the Goldman School and most other elite programs require a lot of quantitative analysis classes and statistics, you would think that it would fit in well, how would they structure markets, incentives and tradable permits, and so on and so forth, work out as a superior remedy or let’s add another rule making from the EPA. But there’s no imagination for that at all right now. Obviously, as we see, not much open to even to considering the question.

Richard Reinsch:

That would be my understanding. The thing about the public policy school dean who had invited you to come teach and wanted your perspective, so when he gets attacked, he folds like a cheap suit. He says, I’ll just read it to you, it’s in the article, “I owe an apology to all of you. I take full responsibility as it was my sole decision to invite Steven Hayward to the Goldman School of Public Policy to teach two courses, one in the fall and spring. I took the fact that he was already affiliated with IGS, Institute for Governmental Studies, and teaching at Berkeley Law as indicators that he would be a thoughtful person, but that is not the case. I was not aware of his statements that belittle others and undermine our shared goals of ensuring a just and inclusive society. It’s one thing to disagree with someone. It’s another to demean them.” In a way he realized he was on the wrong side of the mob and sought to join them, not unlike, say, Mayor Ted Wheeler.

Steven Hayward:

By the way, I met Ted Wheeler once a few years ago before he was mayor.

Richard Reinsch:

He seems like a perfectly nice man.

Steven Hayward:

He has an MBA from Stanford or Yale, I forget where, and was treasurer of the state of Oregon. Yeah, I thought in the ordinary sense he seemed quite able. Anyway, now he’s just awful. If he hadn’t been mayor, he would have become a dean, it seems. Anyway, that’s getting us off track. I don’t know if the dean actually read any of the statements that the students were talking about or if he read… Look, I’d known him for a while. He had come to some events that I had done. I did a conference a couple years ago I organized through IGS on intellectual diversity. I had Harvey Mansfield out from Harvard as the keynote speaker and Josh Dunn from Colorado and Steven Teles from John Hopkins. Dean Brady came to several of the sessions. The guy knows me. It wasn’t like he plucked me out of the phone book and was suddenly surprised. When we talked first five years ago he was totally aware of my climate work in places like the Weekly Standard and The Public Interest.

Richard Reinsch:

Wow.

Steven Hayward:

So I think it’s one thing he’s embarrassed about. As I say, the students were after him. By the way, the students backed off demanding his resignation. Instead saying, “You need to start planning your succession right away.” I think the idea is they want a much more radical dean than him. I think there’s some chance that will happen. Dean Brady’s been very successful in the useful role of raising money and raising the profile of the school. He’s very good that way, so we’ll see about that. As I just mentioned, that’s why I wrote the second half of the article about Aaron Wildavsky, the great political scientist at Berkeley. He founded the Goldman School back in the early ’70s. I just quoted a few things he said. I could have gone on a long time about Aaron who I knew a little bit before he died. They couldn’t hire him today because my views are about the same as his views on identity politics, on environment and so forth.

Richard Reinsch:

One thing I did want to say, it seems to me… We were talking about the administrators earlier in the interview and how the administrators goad the students on. Well, it’s like the feedback loop. The students have now realized the way to get change on campus or to get their way is to hurl these accusations. It’s not that Brady is an evil guy, but he’s been open to evil things. He’s allowed them to happen. He hasn’t been nearly as aggressive as he needs to be. This now means we need a change or something like that. This inability to have any sort of conversation or debate on campus, and the fact that that is damning, that he would turn you out before even talking to you as an equal, as an academic equal, that’s shocking. It undermined the entire idea of an academic enterprise.

Steven Hayward:

Yeah, and it’s spreading rapidly. As we’re talking, I just read a story yesterday or the day before about Tulane University where-

Richard Reinsch:

Yeah, I saw that.

Steven Hayward:

… some group was… Right, you should know the story, . I forget whether it was a class or a student group or whatever. They were going to host an author who’d written a self-critical book about the legacy of his grandparents or great-grandparents in the Klan. In other words, it’s a anti-racist book very much in the vein of not revisionist history but highlighting really ugly aspects of American history. Students complained that this was hurtful. So they canceled the event. Where are the adults in the room to say, “You people are complaining about this. You need to grow up”? That’s what needs to happen, and there’s nobody doing that any place.

Richard Reinsch:

It is. It’s the complete evacuation of any moral authority it seems to me, or confidence in what we are actually here to do in the academy, which isn’t to carry on just political conversations, and if we do have them, we have them in a different way. What I took from your Aaron Wildavsky discussion, which I thought was really well stated, Wildavsky was a traditional liberal, a New Deal liberal, confidence in government, confidence in the administrative state to achieve good outcomes but he becomes skeptical over time about some of those aims and some of the loftier objectives being voiced, and also within academia would have been a conservative because he did believe in the idea, debate, dialectic process itself. So he wouldn’t have understood this, and also, as you quote him, incredibly skeptical of climate change, global warming in the early ’90s.

Steven Hayward:

Yeah, that’s right. I don’t think he would have changed his mind if he had lived on. He died in 1993, I think, of lung cancer unfortunately. He had been a lifelong smoker. But I don’t think he would have changed his mind at all because he wrote a lot about environment issues, not just climate but risk assessment of all kinds is one of his greatest strengths. I will say just in passing the political science department at Berkeley, it’s very large. It’s also very highly ranked. But it actually has a few conservatives lurking around but not outspoken like Mansfield or somebody. We have a lot of old sensible liberals teaching there, so there’s actually more diversity, in the right sense of the word, of thought there than we now see at the Goldman School, which I think is a pretty stark thing.

Richard Reinsch:

Very stark. Overall, you’re still going to teach in the law school, I think you told me.

Steven Hayward:

Here, that’s another… I’ve taught a class and I’m going to teach again this spring with Judge Janice Rogers Brown who’s also-

Richard Reinsch:

Oh, wow.

Steven Hayward:

… a fellow at the law school. We teach a class on natural law jurisprudence . It’s just a small seminar, but we get some liberal students in there. Again, it’s the same experience. We actually read some Cicero. We read some Aristotle. Most of the students really have never read any of these old texts at all and are completely unfamiliar with them, and they like it. It’s the most highly ranked course I’ve taught at Berkeley in the student evaluation.

Richard Reinsch:

Oh wow. John Yoo who also teaches at Berkeley, he told me in his course, “Constitutional Law,” when he gets to the 14th Amendment, they read about Reconstruction and the period of Reconstruction. None of the students, he told me, have very little knowledge of what that is. At the same time they’re very sure what the 14th Amendment means. It’s interesting to me right way about what students actually know, don’t know, and what they’re claiming is absolutely true.

Steven Hayward:

Right. I remember Robert Bork who I knew quite a bit when we overlapped at AEI years ago, he used to talk about, and it turns out to be literally true, most constitutional law curriculum at law schools, and maybe it was where you went, begins with the Equal Protection Clause of the 14th Amendment. That’s kind of the whole Constitution now. The historical context of it is not taught at all. You go straight to the case law. I found to my surprise, I guess I shouldn’t be surprised, but a couple times in various classes I bring up the question of social justice and I’ve included Hayek’s famous essay on the mirage of social justice a couple of times, but then I’ll talk about… how does this compare to some of the old classical categories of social justice like you find in Aristotle, commutative justice, distributive justice?

What I realized with the look on students’ faces and also they come up to me after the classes, they’ve never heard of those before. The whole lineage of that was just not in their education any place. So then I end up teaching Aristotle, too. I joke a lot, and this is what John’s point is, an awful lot of what conservatives do in higher education is remedial education, willy-nilly. I end up telling people what Plato’s Republic is about or certain parts of it because that’s not read anymore. I sneak in Tocqueville. I think, again, why conservatives teach differently is it’s not uniform but a lot of us are actually teaching Western Civilization in a clandestine way because it’s not taught. Even liberal students kind of want to know it.

Richard Reinsch:

Yes. I think that’s right. In the summertime I teach various courses for conservative organization students. These students are remarkably open to that and prefer that, and many of them attend institutions or take classes where that’s the case. I haven’t had the general experience of what you’re describing. Steven Hayward, so you go on. You’ve not been canceled. You obviously have a lot of places to write and publish, and you’ll still be at the law school, so we look forward to continue to hear from you.

Steven Hayward:

Well, thanks, Richard. This has been fun, as always.

The Works and Days of Thomas More Aug 03, 2020

Richard Reinsch:

Welcome to Liberty Law Talk, I’m Richard Reinsch. Today we’re talking with two wonderful scholars of the life and thought of Thomas More, about a new volume they’ve edited called The Essential Works of Thomas More. We’re visited today by Gerard Wegemer of the University of Dallas and Stephen Smith of Hillsdale College. I’ll introduce to you first Gerard Wegemer. He is professor of English and Director of the Center for Thomas More studies at the University of Dallas. He is the author of at least six books on Thomas More and a number of other essays and reviews on this thinker. And he has taught at the University of Dallas for a number of years. Gerard we’re glad to have you. Next, Stephen Smith who is Dean of the Faculty and the Temple Family Chair in English literature at Hillsdale College along with being the co-editor with Gerard of The Essential Works of Thomas More. He’s also the author of The Fire of Life: Wonder and Education in Late Shakespeare. Welcome gentlemen. Both of you.

Gerard Wegemer:

Thank you.

Stephen Smith:

Happy to be here.

Richard Reinsch:

Excellent. So thinking about this book The Essential Works of Thomas More, many of our listeners will know Thomas More through A Man For All Seasons which many say is an incomplete account or a maybe not actually true account of Thomas More, but very entertaining and dramatic. Sketch for us, Gerard. Who was Thomas More?

Gerard Wegemer:

So Thomas More is most famous for The Utopia and for holding the highest office in England under Henry the VIII. He was a poet, philosopher, historian, lawyer, judge, and a statesman who died for the rule of law and conscience and the proper autonomy of church and state. He was also, as a lawyer, a turning point in the history of liberty.

Richard Reinsch:

Talk about that.

Gerard Wegemer:

Well, More understood as a lawyer and a judge, a very experienced lawyer and judge, that liberty was justice through the rule of law ordered towards the good of the people. He as a young man learned Greek so he could understand these issues of jurisprudence from Plato, Aristotle, Cicero, and Augustine and Aquinas. He studied these in the original language so he could understand all the elements and the complexity of it achieving some measure of justice in an imperfect world.

Richard Reinsch:

I want to come back to that later, particularly his humanist learning and his scholarship in that regard. This volume is absolutely enormous and as I was saying to both of you before we started, I thought I understood Thomas More fairly well. I realized there’s a lot that I don’t, that I need to learn. Stephen, what does this volume reveal to us about the thought of Thomas More?

Stephen Smith:

I share your experience of the book as one of the makers of it, with Gerry, I think I speak for both of us in saying the labor of making this, bringing this book into published form, challenged us at every turn, that More was more comprehensive, more challenging, addressed more subjects and wrote in more forms. It’s hard to put into words what the experience of making a book like this is. The reader encountering it would encounter the versatile and challenging and comprehensive wit of this genius, Thomas More. The book has all of his essential Latin and English writings, he wrote in both Latin and English. It has both his poetry and his prose. A lot of people don’t know that More wrote poetry and wrote at a very high level. It has as many of his letters as we could fit in it. It has complete chronologies and timelines, appendices giving the earliest biographical writings on More from the 16th century. Really if listeners out there want to get a kind of turbo and great view of the book, they should just go to www.essentialmore.org, the supporting website, which is a beautiful supporting website and probably the best introduction to the book that I could recommend.

But really when we made the book, Richard, what we were doing was aiming at a single service, providing the readers with everything they need to encounter and study the comprehensive Thomas More. I think your experience of More is like many, which is we know of him through A Man for All Seasons, we know something of the historic and legal drama, but my goodness look at all these writings, to the tune of 1500 double spaces, double columned pages in all these different forms, on literature, on philosophy, on law, theology, poetry. It’s an extraordinary achievement and he’s the first major writer of the English Renaissance and we want everyone to know that.

Richard Reinsch:

Thinking more specifically, I want to come to you Gerry, on just the legal question that Thomas More confronted, and indeed much greater than a legal question, I think probably a regime question. What specifically is he confronted with and what does he do in response just for the clarity of our listeners?

Gerard Wegemer:

Well that’s where the entire career of More is important and necessary, to see how even as a young man he was grappling with the issues that deeply affect the life of peace and justice in England. So England is just come out of a civil war when More is seven years old. They are threatened to go into another civil war periodically.

Richard Reinsch:

Would this have been the War of the Roses?

Gerard Wegemer:

That’s correct. That’s correct. In fact he will write a history of Richard III, which is about the end of that tremendous war. He’s immersed as a historian in the cultural and the historical issues that face every leader of government. This is where he feels himself inadequate as a young man, and goes back to study the classics and to study medieval history and to study law. He lectures on law twice at two different law schools before he becomes a judge and a lawyer for the city of London, and then eventually under certain conditions, accepts, after a conversation about conscience with Henry VIII, to be an advisor to him, which he does very successfully for 12 years until tensions arise about constitutional issues of church and state.

Richard Reinsch:

So you’re saying because of the tumult he experienced in England as a young man, this drives him in to scholarship. This drives him into humanist learning.

Gerard Wegemer:

Yes. He’s a person who deeply is immersed in the life of London, but he’s also immersed in the best way as an intellectual in the fundamental issues that any lawyer or judge has to deal with. It’s why in our tradition, lawyers and judges have received the highest and best education available in each of their countries. Because justice is a very fraught issue with dangers and limitations and requires extraordinary prudence to know, “What can we do under these actual circumstances?”

Richard Reinsch:

Thinking about, just for a minute, More is confronted with Henry VIII who declares himself head of the church of England, which he reforms, reshapes, according to his will, and More must give his assent to that, and he refuses to and therefor is executed. Is that sort of a simple understanding of what’s happened?

Gerard Wegemer:

Yes, and along the way, clear manipulation of Parliament under Cromwell’s strategic genius. But also manipulation of convocation, the church’s legislative bodies. Two people remembered that Warham, who’s the head of the church, completely dissociates himself publicly and confronts Henry VIII in Parliament. From everything that they passed under his pressure, Henry visits Parliament personally three times and asks for a division of house. So he knows who’s on his side and who’s not, and Cromwell is going to bash into Parliament that is going to do the will of himself and the king. That’s why More, his trial and the execution, prays that God give Henry good council and refers to the Parliament such as it is.

Richard Reinsch:

Thinking about this time in England, there isn’t much resistance from my understanding, Thomas More, there’s a bishop, John Fisher, those are the only ones I can find. Is this the sort of natural human tendency towards weakness in the face of overwhelming power and fear for one’s own security and future? Or is there a lot of other things going on?

Gerard Wegemer:

That’s where there’s a lot of research that has yet to be done, and records that need to be looked at again. But what you recounted is the usual story. But there was considerable resistance and there was an anticipation that what was promised would actually be fulfilled. This is where More’s life is a drama. This is where Chesterton would talk about More as being the turning point in the history of liberty. Liberty is very hard to achieve and it requires citizens who are educated and prepared, not just intellectually, but also as citizens equipped to confront the difficulties that people who want to achieve power and money at any price will always exert. There are certain perennial issues in everyone’s life.

Richard Reinsch:

Stephen, just sort of switching gears here, you noted the collection of poetry in the volume earlier. What does the poetry reveal about More’s mind and what he loves and presents in the poetry?

Stephen Smith:

To mention before, most people don’t think of More as the poet, but not only was he a poet, but was scoffingly referred to one. But his poetry is in English and in Latin and Dr. Samuel Johnson who did that great dictionary of the English language, he gave a large sample of Thomas More’s work as poetry and some of his other writings because they were considered models of pure and elegant style. He was known for his eloquence.

In the poetry in particular he wrote a poem called “The Pageant of Life,” which imagined human life from birth to eternity, and he wrote poems on fortune and poverty. Late in the Tower of London he wrote a poem called “Lewis the Lost Lover,” which is a little ditty about this guy Lewis who rejects eye flattering fortune when it comes to him offering him help. He has all these really wonderful English poems, but perhaps with the most interest and the least well known, his Latin poetry, his epigrams. Two great critics of these poems wrote that they display More’s logical energy, muscular realism, and penetrating intelligence. These Latin poems were paired and published with Utopia. When you go and you pick up a copy of Utopia at the book store, at the library, you don’t ever see all of these Latin poems with it. One of the things we hope to do eventually is to put an edition out that puts them back together again because the Latin poetry really sheds light on Utopia in a number of startling ways. Just to give you a sense of what the Latin poetry addresses, it addresses human friendship, it addresses comedy, but a lot of the poetry on political life and political philosophy is maybe the most interesting.

He has a poem called “What’s the Best Form of Government?” Is it rule by one, or rule by a senate? He has a poem entitled “The Consent of the People” both bestows and withdraws sovereignty. He has poems about good kings, poems about tyranny, so this poetry is an important part of his legacy that’s really not well known and not studied enough, and these epigrams in particular show as much of his mind as anything he wrote. His humor as well. One of my favorite ones is kind of silly, but it’s just a short poem that goes like this: “If an untrimmed beard makes a philosopher, why could not a bearded goat be a Plato?” This is the humor of More is very, he was so serious about Henry VIII and tyranny and decapitation but this is a soul who is famous for his good humor and his good cheer and his wit. It comes out in this poetry as well.

In Richard III, for instance, he points out in the Latin edition that it’s Parliament that has the absolute political authority in England, not the king. Now he doesn’t say, “Not the king,” but More is clearly writing for ages and part of the way of overcoming poverty and civil war is to have more mature and robust political institutions. More’s the first person to write a speech in Parliament as Speaker of the House defending the need for free speech and he makes this address to Henry himself.

Richard Reinsch:

It seems just as I read the poetry, he seemed to be concerned with the end state of man and with sort of a robust soul in approaching the problems of life, the difficulties of life. In my mind, help me understand the type of soul he was, and the largest question he would confront at the end of his life.

Stephen Smith:

I think he’s searching for a perspective on human life. For that “Pageant of Life” one of the hardest things to come by is a reliable and clear and trustworthy perspective on our human drama. We so often elude that altogether and can’t see it all. That’s why in the history of Richard III, More cries out against the blindness of our human nature.

Richard Reinsch:

Thinking along these lines about human nature, how did his thinking about human nature shape what he thought about politics? Do we have him preferring, from The Utopia, a republican form of government, and sort of a begrudging acceptance of monarchy? That makes him a very interesting thinker within England, to say the least.

Stephen Smith:

That poem, “What is the Best For of Government?” It does contrast a sure council with blind fortune when comparing an elected senate and hereditary monarch. In a similar way, Utopia introduces to England the vocabulary of Cicero in terms of the elements of republican self government. This is the dimension that is rarely referred to in that important book. On the other hand, More is extraordinarily discreet. After all, the chief spokesman in Utopia is called Raphael Hythloday, speaker of nonsense. More is not proposing any of this. It’s Raphael who’s pointing out all the serious difficulties of hereditary monarchy. Also the poverty that occurs when you don’t think about the good of the people. More never uses the word subject in his literary writings. It is always citizens and the people. He has a deep, deep assessment of England’s whole history.

In Richard III, for instance, he points out in the Latin edition that it’s Parliament that has the absolute political authority in England, not the king. Now he doesn’t say, “Not the king,” but More is clearly writing for ages and part of the way of overcoming poverty and civil war is to have more mature and robust political institutions. More’s the first person to write a speech in Parliament as Speaker of the House defending the need for free speech and he makes this address to Henry himself. In the 1523 Parliament Henry grants free speech because of More, although he will never do it again.

Richard Reinsch:

So More as a young man confronts the King of England and was briefly thrown into jail, isn’t he?

Stephen Smith:

This is where More goes back to the sources. He even writes in his letter to Oxford, in some of these humanist writings, that it’s necessary to learn these original languages because translations are so inept. These are complex issues and we need subtle writers and subtle minds. Another aspect of his poetry is you see that even from his teens how serious and committed he is to improving his writing and his thinking. Over 100 of his 300 poems are translations and imitations of Greek poems. He’s trying to understand from within the many arts that a lawyer and judge need and one of them is the art of language and being able to speak to a people in a way that is persuasive and moving to that particular group of people.

Richard Reinsch:

Talk about, Stephen if you would, I just want to switch gears here for a minute, because I want to keep on covering, I want to keep this legal track, law track, but also with a humanist track. Thomas More and Erasmus, their friendship and what does it mean?

Stephen Smith:

This is an incredible relationship that lasted much of More’s professional life. We actually have a letter that survived from Erasmus that described his friend Thomas More in detail and it’s one of the best introductions you could have, I think, to Thomas More and to Erasmus and to what they valued as humanists. I won’t get bogged down in all the details of the letter but one of the famous things Erasmus says is that Thomas More was born for friendship and that if you needed a perfect example of friendship and action, you could see it in More. That letter identifies so many things that are important to More but the friendship that is the emphasis there. Both Erasmus’s adages begins with friends share all things in common. In general the subject of human friendship is at the heart of More’s project, that the human being needs friends. He has epigrams about this, a statesman exercises something like civic friendship, there should be civic friendship between citizens, but that emphasis on friendship is crystal clear and it’s really the key to this relationship.

Stephen Smith:

After More died, there’s a beautiful line from Erasmus in August, More died in July, so in August Erasmus wrote someone and said, “When More died, I seem to have died myself. We were a single soul.” This close relationship between these two great humanists. The key thing I think for us is their common commitment to an understanding of friendship and for listeners, some of the great sources on friendship that More knew and that we can return to ourselves, are Aristotle’s ethics, Cicero on friendship, and there are scriptural texts on friendship. Aquinas has written on friendship. It’s one of the most important parts of his legacy. When he was A Man for All Seasons, he had these different titles, but I really like that, “born for friendship.” I’m sure Gerry has more to say about Erasmus.

Richard Reinsch:

Yeah, please do Gerry.

Gerard Wegemer:

One of the things we included in this book was the play written in Queen Elizabeth’s time called Sir Thomas More. It’s by five different playwrights. Of course it was never performed. The first time that More is introduced in this play to Erasmus, the noble and poet Surrey says this about More: “This little island holds not a truer friend unto the arts, nor doth his greatness add a fainted flourish to his worthy parts. He is great in study, that’s the statesman’s grace, that gains more reverence than the outward place. That study is the general watch of England and it the Prince’s safety and the peace that shines upon our commonwealth are forged by loyal industry.” Now the words that the playwright uses are fascinating. “Friend,” “Statesman,” “Study,” as a way of achieving commonwealth, the common good and peace. But it’s forged by loyal industry. That’s another term that is associated by anyone who knows More well. It’s part of his mystery. Here is a genius who works harder than anybody else.

Richard Reinsch:

Thinking about Humanism, we keep using that term, the Humanists are about the study of classical literature, philosophy, politics, poetry, to the displacement, or ignoring the Christian contribution and Christian tradition. But that wasn’t More and Erasmus. How do they understand their Humanism?

Stephen Smith:

Well they shared that common Renaissance spirit of wanting to return to the sources, to those great sources of wisdom in Latin and Greek writings, but they certainly didn’t see those as, or didn’t put their Christianity aside when they did so. These things can go two ways, you can look at the integration that they achieved between Christianity and the best of classical wisdom, but you can also look at it in terms of that spirit of going back to these key sources, ad fontes. In famous letters that we include from More to Oxford University in which he actually addresses secular learning on the one hand and the liberal arts and theology on the other. He says in this letter to Oxford University, which I would probably put on the short list for listeners to look up, he says, “Secular learning prepares the soul for virtue, and it fosters prudence in human affairs, a thing that’s not useless to theologians.”

Richard Reinsch:

That’s very true.

Stephen Smith:

I thought that, to me, a real important sentence. They understood learning as having this preparatory role, preparing the soul for virtue, and in particular, histories and literature fostering prudence in human affairs. It’s not so much an either or, in terms of the classical Christian or Humanism but the both and that’s the one sentence that comes to mind from that letter to Oxford University.

Gerard Wegemer:

Another letter to put on the short list is the letter to Gunnell, that’s the tutor to More’s children, and in that he insists that if we put virtue in the first place and learning in the second-now he had a daughter who’s a genius like himself, but he clearly understood Aristotle’s point that as a person is, so does the person judge. The character makes an enormous difference on what you see, and if you’re able to see what is actually there. This is where harmony that was traditionally understood between the classical and the Christian became so important for More and Erasmus. When Erasmus goes to England, there he’s actually convinced by More in the circle to take up and master Greek himself. He will spend the next several years doing that and that’s where More challenges him to dispute translated content and More chooses a classical author that’s not usually on people’s short list. That comic philosopher Lucian.

More tells us why he chooses Lucian and he says that Lucian has this capacity because of his humor to probe more deeply that anyone else without upsetting the readers’ equanimity, calmness of soul. Lucian can get people to think without stirring up those emotions that impede thinking. This is a worldly wisdom that can be lost. This is what Erasmus and More were trying to recapture. This is the fullness of human life in which there is no opposition between their best nature and of revelation.

Richard Reinsch:

How would he have related revelation and nature to one another, Thomas More?

Gerard Wegemer:

I think most by his example. As a young man, he quotes, and he quotes this throughout his life, the biblical passage that God loves a cheerful giver. This explains, for instance, but scandalizes people at his death, when More mocks his own death, making jokes on the scaffold and on his way up. How could a person mock at his own death? Well, God loves a cheerful giver. We see this in More at the very end.

Richard Reinsch:

So he would understand himself, he is giving his life for the truth and he should do so cheerfully.

Gerard Wegemer:

And also for the country. That here again he gives his life for the rule of law, liberty, and the common good. You actually have an example of an extraordinarily free person, even in prison, even going to his death. This is what makes his death so shocking to those who are trying to intimidate and to bend him to their will. They had no power over this person. Here was a person with true liberty.

Richard Reinsch:

True freedom. Talk about the theme then, of tyranny and Thomas More’s writings. Either one of you, maybe we’ll start with Gerry and then move with you Stephen.

Gerard Wegemer:

It’s surprising that More’s very first published work, which no one knows about, you can find anybody wanting to do the full span of More’s writing, is on the nature of journey and the grave problems that republic faces when a tyrant takes over. That is included in his book of translations on Lucian that he proposes to Erasmus. They both address this topic. Then of course, his most famous book on tyranny is Richard III. But he has at least 10 poems on this topic which he appends to The Utopia. Of course, Richard III is the work that profoundly influences Shakespeare, and Shakespeare bases his first four places on More’s Richard III.

Richard Reinsch:

So Stephen, you thinking about, your thoughts on tyranny and More’s writings and what he thinks is the depth of tyranny.

Stephen Smith:

You know in that letter I mentioned that Erasmus wrote on Thomas More, he not only said he was born for friendship, but he told us what his friend loved and hated. He loved equality, actually, and he hated tyranny in particular. One of the things that comes out of that letter is not just born for friendship, but this particular interest in tyranny. To Gerry’s point about his first published writing being on tyrannicide and then history of Richard III addressing Richard’s rise, how it happened, how England failed to prevent his tyranny, and in the poem what you have is a kind of glimpse into something that’s at the core of More’s understanding that this is a possibility in politics and if we’re going to be educating citizens and educating leaders, we need them to understand this phenomenon, understand this possibility.

How does a tyrant come into being? What is a tyrant? And then of course, why do cultures fail to resist them? How do they take root? How do they maintain themselves, how do they succeed? This interest in tyranny links More back to, of course, earlier thinkers like Cicero and Aristotle and Plato on the subject. So much of his early writing is revealing and educating on this crucial subject.

One of the poems, for example, says, it’s kind of a funny poem about death and tyrants. More presents death as the only tyrannicide when you really get down to it, that tyrants can’t live forever. Shucks. Death ends up conquering them. But then Richard III, this spectacular, incredible English and Latin text on Richard’s rise. Why did England fail? They were of course dominated by fear. The narrator points out several times, they also didn’t have enough wit to resist tyranny. They didn’t understand what a tyrant was willing to do to secure his rule. It’s a powerful text and Gerry mentioned a Shakespeare connection as well. Shakespeare’s breakthrough tragedy is History of Richard III and More is his major source. I like to think of the young Shakespeare who is so keenly interested in England, so much aware of the problem with civil war in that country and culture. I imagine that young man, that young brilliant dramatist, sitting at the foot of Thomas More and reading his history. Wow. The things that happen in that play and afterwards in Shakespeare are legendary.

Gerard Wegemer:

I think he’s his best student, frankly.

Stephen Smith:

And tyranny also has a personal dimension. So yes, well understand political tyranny, but many of More’s epigrams and poems show how ridiculous each person is by being a tyrant to those around them. We all can by tyrants. This is where, again, More’s comprehensiveness as a thinker that you need citizen education if you’re going to have a free country. You need human beings who aren’t slaves to their own passions, who are slaves to ideologies that they haven’t thought about and made their own and we find through conversation with good friends. The tyranny issue, one of the most important things in classical literature, Xenophon’s famous book on tyranny, one couldn’t be a liberally educated person unless one understood the perennial possibility of tyranny in a country and tyranny in oneself.

Richard Reinsch:

That should lead us to shudder then about our own country’s fate, given the overall lack of civic education and the overall lack of awareness of how passions destroy freedom and how ideologies destroy freedom. Thinking here, Brad Birzer recently said on Law & Liberty that those who love the liberal arts the most suffer the most. He referenced several figures, Socrates, Cicero, but also Thomas More. As I’m listening to you two gentleman describe his thought and his humanism, it’s almost as if were he not to have done what he did in regard to Henry VIII, he would have repudiated his entire life and what he had been about.

More does talk about the duty of integrity and the duty of protecting one’s integrity. Of the harmony between what one says and thinks and what one does, and that is the greatest challenge to every human being.

Gerard Wegemer:

One thing, again, More is convinced that there is such a thing as providence. This is one reason why one has to reflect on his own calm of mind even in the Tower. Also on the short list of things to read to get to know More as More would be his two Tower writings. One is the Dialogue on Comfort. It is a Socratic dialogue, which deals with how to overcome a passion that’s taken control of the soul. The passion of course is fear at this point and it’s a really depth study of how difficult it is to rule oneself. It’s a conversation between and old person on his deathbed who’s gone through terrors throughout his life and the young person who’s just about to face the worst terrors possible and imaginable, is overcome by fears of what’s going to happen. We wouldn’t have that conversation, we wouldn’t have that book if More were not imprisoned. The second is his Sadness of Christ, which is his last work, and it’s probably his most accessible work. It’s short, he has to write it in a hurry. He knows he’s only got a few weeks to live. But it gives his last lessons on what one must do to be a free person.

Richard Reinsch:

Which is?

Gerard Wegemer:

Understand your soul and have a good friend to help you see your own self contradictions. Also to form what he calls a right imagination, not one dominated by fears and false imaginings. It actually shows the importance of Socratic conversation, that is, Socrates is most famous for raising questions about the nature of virtue and getting people to come to know themselves at least in a beginning way. Self knowledge is the beginning of wisdom, but you can’t really know yourself unless you’ve been put in dire situations you don’t expect. You might be surprised at how fearful or imprudent or rash or cowardly you can actually be. But once you know that, well then this is where one becomes open to put virtue in the first place and learning in the second. This is part of the interest of More’s writings on education, but the masterpiece is going to be his Dialogue on Comfort. It’s a book longer than The Republic, but is a book that is designed to be over nature of the soul and how one can train oneself to overcome fears. It’s interesting if you read the prison letters, More confesses to his daughter that he’d always considered himself a fearful person. Now that’s not the persona anyone sees, but he had overcome that. He says in one of his letters that he scandalizes himself before being imprisoned about his fear.

Richard Reinsch:

Thinking about More though, his conscience, he would have had clearly this conception of conscience being a window of his soul that God spoke to. I’ve read both of those that you referenced and it’s clear to me that his courage, conviction, strength, comes through his belief that he’s participating in God’s will.

Gerard Wegemer:

That’s very well put. This is where the playwrights are so perceptive by singling out More’s commitment to study. Finding out the truth and then habituating themself to live in the truth. More does talk about the duty of integrity and the duty of protecting one’s integrity. Of the harmony between what one says and thinks and what one does, and that is the greatest challenge to every human being.

Richard Reinsch:

Did More ever comment on through the overall political condition of England at this time as he reflected on what had happened and how it had come to pass that basically, something like a complete change in its laws and constitution was worked by the king, Henry VIII?

Gerard Wegemer:

Stephen can comment on this also, but two elements come right to mind for me is his comment just before going into the Tower and his last work he’s writing on before going into the Tower where institutionally, kings had changed the process of selecting bishops. Where they had done it sometimes for pleasure, sometimes for favor, and sometimes for money too. Institutionally this is the great problem that England faced. Half of the House of Lords were habits and bishops whose work often was more for the king than for any spiritual project. More clearly identifies that as an institutional problem but no surprise, Beckett, the long centuries controversy of what the church-state role is going to be in terms of what are actually tremendously powerful cultural courses. Emperors wanted the church on their side because the church serves the people and good people in the church know the people. That’s one, and the second is that the bishops themselves, that’s on the side of the state, the bishops themselves did not reform themselves. They had the laws on the books. They knew what they should do. But they didn’t do it.

Richard Reinsch:

Stephen, your thoughts on this?

Stephen Smith:

I think that on that last point, in The Sadness of Christ, this is a nice link between Sadness of Christ and Utopia, More describes how there is a shameful ship captain, a cowardly captain, who relinquishes the ship in the storm and hides away in some cranny in the ships hold and just sort of consigns the ship to the waves. That does seem to be a critique like you’re suggesting, Gerard, where it’s like in The History of Richard III as well where we can never underestimate the failure of will, of sheer fortitude, and courage. In that famous passage in Sadness of Christ, which links back to the text in Utopia about never giving up the ship in a storm, there was a storm of the first order in these years and I think what More indicates in that last writing is many, many, gave up the ship in the storm and hid away in the ship’s hold out of fear, out of the desire to preserve their life, to their own benefit. Any number of motives like that, but it was really a failure of captains.

Richard Reinsch:

What becomes of Thomas More’s place in English life after this? How is he regarded? He loses and of course England will become a protestant empire after that. Is there sort of a look back within English intellectual life at his greatness or is he sort of, they don’t know what to do with him?

Stephen Smith:

Well he’s very good at inspiring wonder in onlookers. Gerry mentioned the historian Hall who said, “I don’t know whether to call him a wise foolish man, or a foolish wise man when I consider how he went to his death.” In the 16th century at least, the answer is mixed verdict, but there does seem to be an admiration, even wonder over his wit and then either happiness that he stood with the church or lament that in that matter he just went the wrong way, depending on the historian or the writer. That capacity to inspire wonder in people is really at the heart of Thomas More. Who was he, how did he prepare himself and educate himself, how did he play the part he played on the English stage unto death? It’s really wonder inspiring and it makes you want to learn and to study him. Later in the 16th century he’s still known in London as the best friend that the poor ever had, for example, so you had this whole complicated legacy. I know one reason we wanted to put this book out there, to gather these works together, to make them available, is to not only help people wonder over Thomas More again but really to study him and to learn from his life and writings.

I would direct the attention to that conscience that is the whole fruit of learning according to More. If you at the end of your education don’t have a rightly functioning conscience, and if you haven’t learned the need for the courage to follow, you’ve gained the whole world but you’ve gained nothing.

Richard Reinsch:

Gerry, your thoughts here?

Gerard Wegemer:

Well the 16th century play Sir Thomas More is completely favorable to Thomas More and despite five London playwrights who had completely different religious and political convictions, they’re the most unusual group you would expect to be together. But even for A Man for All Seasons, when that came out in ’66, it was immediately translated into 10 languages. It became part of the reading list for English prep schools for the next 20 years. This model of conscience is something the world needs.

Richard Reinsch:

That’s very true. Thinking maybe we can end with this, and you both take this on, Gerry I’ll start with you, Thomas More, because you started talking at the beginning of our interview, More and his regard for liberty under law. How did he approach the duties of being a lawyer?

Gerard Wegemer:

Wit and good cheer. For 10 years he was elected every year as under sheriff, under 10 different sheriffs of London. This meant that he was the presiding legal officer at the court of the sheriff of London that heard all kinds of cases. More became famous for befriending the city, being someone who would give a fair hearing to everyone and often needed the money and recommend that they not pursue this because it wouldn’t work or that it would be less expensive not to go through the law courts. But he was seen as a person who would give honest council and who was genuinely committed to the good of the whole city. That’s where, again, you can see the benefits of his learning. He knew Cicero’s On Duty very, very well and two of the principles that Cicero gives on core justice is that you have to think in terms of the good of the whole of the body of politics. You can’t favor one part. This More understood clearly. So his book called Utopia, the actual title in Latin is De Rei Publicae Statu Respublica. Republic. Commonwealth. Good of the people. That horizon people need in terms of thinking about justice. That’s where he’s particularly important in our own time where we’ve become so divisive and uncivil and the lack of the sense of look we are all in this body of politic together, let’s do the best we can together.

Richard Reinsch:

Yeah. Stephen your thoughts on Thomas More as a lawyer?

Stephen Smith:

You know, on that short list reading, the letter to Gunnell, the one that’s addressed to his children’s teacher says, “I prefer virtue joined with learning to all the treasures of kings.” He also says, “The whole fruit of learning is a right conscience.” A rightly working conscience. I think that’s really at the heart of his legal success is that he indeed enjoyed the fruit of that particular fruit of learning. He not only understood his education as forming his conscience to work rightly, and to set up a lasting friend throughout the whole of life. He brought his education, his formation, his commitment to virtue, his right conscience into his work. He had the courage to follow the judgments of conscience right to that scaffold. To me, Thomas More, the lawyer Thomas More professional, it’s really Thomas More the man and I would direct the attention to that conscience that is the whole fruit of learning according to More. If you at the end of your education don’t have a rightly functioning conscience, and if you haven’t learned the need for the courage to follow, you’ve gained the whole world but you’ve gained nothing. That right conscience is what stands out in my mind and answer to your question. The lawyer is a man of conscience.

Gerard Wegemer:

And we see that in More’s very last words, he says “I die the king’s good servant and God’s first.” When he said those words, he was reminding Henry VIII of the two most important conversations they ever had, and they were both about conscience. Before he agreed to work for him as a councilor, and before he agreed to become Lord Chancellor of England. Henry said to him on both occasions, “Look first to God and your conscience and then to your king.” This is where for More, there’s no conflict between good law and conscience. Probably the most famous line of Man for All Seasons, the letter that Roper, his lawyer son in law writes about More, is that he would give even the devil his right, and he would follow the law, because law is the work of good reason and conscience is the judgment of good reason. That’s where you need lawyers and judges who actually do have a command of both-of the law and of the principles that undergird the law.

Richard Reinsch:

I think that’s very well said and I think that’s a wonderful way for us to end. Gerard Wegemer and Stephen Smith, thank you so much for discussing this volume you’ve edited for Yale University Press, The Essential Works of Thomas More.

Gerard Wegemer:

Thank you Richard.

Stephen Smith:

Thank you Richard.

Publius's Constitution, Now More than Ever Jul 28, 2020

Richard Reinsch:

Hello, I’m Richard Reinsch, and welcome to Liberty Law Talk. Today, we’re talking with Colleen Sheehan about Publius and how he contributes to our knowledge and thinking about American constitutionalism. Colleen Sheehan is a master teacher of the American founding. She’s also an excellent scholar of James Madison with two books on his thought, one James Madison and the Spirit of Republican Self-Government, and The Mind of James Madison. She’s the Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership. We’re glad to have her on the program today. Colleen, thank you so much for joining us.

Colleen Sheehan:

Thank you for having me Richard. Happy to be here.

Richard Reinsch:

Great. So the occasion of the interview is Publius, but you’re the co-editor with Jack Rakove of a new book just out, a collection of essays called The Cambridge Companion to the Federalist, which has 16 essays from leading scholars on the Federalist Papers and on Publius’ thought from a range of great contributors. You, Greg Weiner, Paul Rahe, Harvey Mansfield, and others. It’s a wonderful volume. As I was reading it, the first question that comes to mind, and maybe for our listeners, and it’s a simple question but a complicated question as you flesh out in the introduction, who exactly was Publius, and why do we need to understand him?

Colleen Sheehan:

Well, as you know, a lot of folks today probably think we don’t need to understand him. He’s just some dead white male, or maybe dead white three males, some trio of dead white males, that have outmoded ideas that have nothing to do with our nation today. And that’s, of course, one perspective on the American founding and America’s past that maybe what happened in the past in America should stay in the past, and that we are a new and better nation. That’s not my view. I suppose I wouldn’t have spent my time since about 16 years old studying these things if it were my view. I discovered the founders actually at a fairly young age, and thought that there was something more than history going on when I read Jefferson and Hamilton and Washington and Madison. These were people who actually thought that there was something about politics that was ennobling, or that at least it could be. It certainly hadn’t always been, but that it could be. And what I think Publius was up to was looking at the history of the world as a history of the struggle of human beings to live in freedom, to not be governed by somebody else for somebody else’s purposes.

Richard Reinsch:

There’s that famous opening in Federalist 1 that I thought we could talk about because I think it encapsulates their project, and that is … We should also talk about who Publius is, too. But the Federalist 1, can we found a republic on reflection and choice versus with accident and force, those two different contrasts. What would it mean to Publius to forego instituting this new constitution on reflection and choice, or failing to do so?

Colleen Sheehan:

Ah, well, I mean I think it means everything. We either do it on the basis of reflection and choice, or we don’t do it at all. When Hamilton says that in Federalist 1, that it seems to have been reserved for the people of this country to decide the important questions, whether societies of men are really capable, or not, of establishing good government around the basis of reflection and choice, or whether they’re forever destined to depend for their political constitutions on accident and force? It’s almost the opening salvo of the Federalist Papers. What that is is really the answer to what Publius says in Federalist 39, that only a republican form of government would be acceptable to the genius of the American people, to the principals of the American Revolution. Because, of course, the American Revolution, and the Declaration of Independence, declares that all just government, all legitimate governments, are based on the consent of the governed. And all governments not based on the consent of the governed are not legitimate, not truly popular, not truly republican governments. And so, it has to be on the basis of reflection and choice. You’ve got to try it, and you’ve got to get it right, or you’ve really not succeeded in anything that the American founding is about. So when Hamilton’s writing Federalist 1, he doesn’t know if it’s going to succeed right? This is the first Federalist paper, and they’re going to be many afterwards, 85 of course in total, written to the people of the state of New York, a state in which it was not at all clear that the federalists would beat the anti-federalists. And if they didn’t win in New York, it was likely that the constitution would fail, we would not have a new constitution. There might not, in a few more years, be anything called America. So it meant everything, Richard.

Richard Reinsch:

The reflection in choice, but one never gets a pure choice. What events have sort of forced them into this move? First, the Philadelphia Convention, and then this sort of attempt to have a theoretical exposition of the document that’s come out of that convention. But they did change. They are proposing a complete change to the Articles of Confederation, with some, we can go back and forth about the legality of what they’re doing, but they do believe it’s called for by circumstances. And some seem, the anti-federalists as they coined them, unwilling to go along with that. Maybe just talk a bit about the claim that the accident and force would come about if they’re not listened to and the anti-federalists are sort of allowing this experiment to be open to accident and force?

Colleen Sheehan:

Ah, wow what a great question. Yeah, it would be a kind of drifting. And so we wouldn’t deliberately form a new government, and the economic situation was so bad, inflation was so high. You know, the phrase, “Not worth Continental,” was pretty popular in those days. Widows and orphans of the schools or some war didn’t have enough money to live. We all know about Shays’ Rebellion, and they prevented the courts from sitting so that they couldn’t foreclose on the farmers’ mortgages. And then they’d be sent to debtor’s prison, and then their families would probably not make it. And so the situation was dire. And some of the anti-federalists tried to downplay it, but everyone knew that major changes were absolutely necessary. When Madison says later on in the Federalist Papers, really addressing the question that you just posed and one that the anti-federalists brought up quite a lot, that the convention was not authorized to make these kind of changes. It’s kind of an entirely different, new constitution, on a new basis because it’s not on the basis of state sovereignty anymore, it’s on the basis of popular sovereignty. And so it would be like the UN reorganizing itself so that it would be the sovereign nation of the world. It’s a pretty big change. And the anti-federalists tried to downplay how bad the situation is, but they know it’s bad. And so Madison says later on in the Federalist Papers that this is a question necessity forms, just have to give way when it’s an issue of necessity in politics.

Richard Reinsch:

And they’re also, by calling for state ratifying conventions, there is the element of popular sovereignty here. I mean you could criticize them on the rule of law, but it’s a question they’re willing to pose to the peoples’ representatives.

Colleen Sheehan:

Right. And so the constitution’s nothing but a dead letter until life is breathed into it by the ratification of the people of the Federal States of America. So all it is is a proposal coming out of the Philadelphia Convention on September 17, 1787. It’s a pretty important proposal, and it’s got the weight of people like George Washington behind it which means everything. But nonetheless, it doesn’t carry any force of law. It’s simply a proposal. And it has to be ratified by nine of the states until it can go into effect. And of course when it’s ratified by nine of the states, it’s only in effect in the states that ratify it because the authority comes from the people in federal states.

Sara Jay kept very nice notes about all of her dinner parties. And there was a dinner party about a week before the first Federalist Papers came out. And interestingly enough, it was all men, which is very unusual. But Hamilton, Jay, and Madison are all at that dinner. Now there are others there, and of course it’s a secret who Publius will be, and they know this is not something told to others, so presumably they don’t talk about this at dinner. But they must’ve huddled in a corner at some point, I mean how could they not have with their plans for this coming out?

Richard Reinsch:

Now you mentioned the New York Ratification Convention and the motive for the Federalist Papers, an immediate motive to influence their deliberations. That’s sort of a question, and it’s one I asked at the beginning, Publius is Alexander Hamilton, it’s James Madison, and to a lesser extent John Jay. How do they come together to do this and to sound, although we can find differences in their arguments throughout the Papers, people have pointed out contradictions to me, but at the same time they sound remarkably similar and on point? And these are three people, different people, different experiences, different ideas, and they come together to do this. Talk about that.

Colleen Sheehan:

Yeah, well it’s the brainchild of Alexander Hamilton, which makes a lot of sense of course. He’s from New York, not originally of course. He’s from a little, little tiny island. Only 30-something square miles in the Caribbean called Nevis, which is down by St. Kitts, but moved to the United States when he was a teenager, and actually at some point in his life says, “What, am I the only American here?,” when people are thinking of themselves of Virginians or New Yorkers or I guess Delawareans, is that a term? Hamilton always thought nationally, yet he lived in New York. Of course he intermarries with the famous Schuyler family of New York, we all know that now because his play and the Schuyler sisters, very prominent family from actually a place down by Albany called Schuylerville. And where I am right now in upstate New York on Lake Champlain, I look out my window and I see an island called Schuyler Island. Great fishing over there I hear from the folks around here who like to fish.

Anyway, so Hamilton had been at the convention with two other delegates from New York. And the other two delegates, John Lansing, and Robert Yates, were very good friends of then Governor of New York George Clinton. And these guys were big fish in the pond of the state of New York, and they did not want any major changes to the Articles of Confederation. They wanted New York to keep the power that New York had. And New York was successful. New York had New York City. New York had financial successes that were happening in the United States. But they could strong arm states like New Jersey and some of the smaller states, and they didn’t want to lose that power. So at the constitutional convention, Hamilton was always outvoted by Lansing and Yates. And when they go back home after the constitution-

Richard Reinsch:

And you voted by you state, you had one vote per state.

Colleen Sheehan:

That’s right. And so New York went with Lansing and Yates until actually Hamilton left and then they left, and so New York wasn’t even there for a while. But Hamilton returned at the end to sign the Constitution. So he starts the effort in New York to advocate for ratification of the Constitution with Lansing, Yates, George Clinton, and a group of very powerful people who became part of the anti-federalists cause on the other side. So he tries to enlist a number of people to help him, but he’s not successful with some of the folks he asks. Besides Jay, and originally Jay was supposed to do a lot more of the writing than he did. He became ill and ends up only writing five of the 85 papers. So ultimately Hamilton asks a Virginian, James Madison, who agrees to do it. Now interestingly enough Richard, just about a week before the publication of the first Federalist Paper in October of 1787, I went back and looked at this, John Jay’s wife was from New York down in Westchester County. Sara Jay kept very nice notes about all of her dinner parties. And there was a dinner party about a week before the first Federalist Papers came out. And interestingly enough, it was all men, which is very unusual. I mean this is not polite company, wouldn’t be considered polite company. But Hamilton, Jay, and Madison are all at that dinner. Now there are others there, and of course it’s a secret who Publius will be, and they know this is not something told to others, so presumably they don’t talk about this at dinner. But they must’ve huddled in a corner at some point, I mean how could they not have with their plans for this coming out? So wouldn’t you have liked to be a fly on the wall at that dinner party?

Richard Reinsch:

Yeah. I mean you think about coauthored pieces, how those sometimes get worked out rather quickly.

Colleen Sheehan:

In the beginning, they tried to communicate as much as they could sending sometimes essays to each other, and trying to get things done in advance. But as we all know who’ve been students, and especially those who’ve been graduate students, that ends pretty quickly. And things get ahead of you and you’re writing late at night to complete the deadline the next day, and that’s exactly what happened to them. So the actual original plan that Hamilton lays out in Federalist 1 isn’t precisely followed at all as time goes on. I mean Jay is unable to write some of the essays that he was originally slated to write. And just the pace that they were following to get these essays done and into print, it’s amazing that the work is as coherent actually as it is given the difficulty there. And especially in speaking with one voice. This is one of the questions that Jack Rakove and I ask in this volume. One note about Jack, Jack is an historian, and Jack is-

Richard Reinsch:

Jack Rakove, your co-editor?

Colleen Sheehan:

Jack Rakove yeah, from Stanford. He’s a Madison scholar, a founding scholar. He is a smart, witty, what a pleasure to work with him on this volume. It was a constant going back and not just about getting things done, but talking about the ideas and really, in our correspondence, I think the founding for us during that period of time was very much alive. But Jack and I have different views on a number of things, and one of them is whether we should call the author of the Federalist, Publius, or whether we shouldn’t do that because it’s really three separate people and we should always talk about them in terms of Madison, Hamilton, and Jay. Now I’m fine with it both ways. I like country and western. But Jack, as an historian, really didn’t like the idea of referencing them as Publius. And I said, “Well let’s not standardize this throughout the text. Let’s let folks do it how they want to approach it,” and Jack agreed to that. And so the volume reflects both, those who want to take the Federalist author at his word. I mean every essay is signed Publius. They deliberately chose to speak in one voice, even though they didn’t agree on everything themselves. They certainly did not agree on everything themselves. And there are things that … When Madison has to write about the Senate, it’s difficult for him. He and James Wilson almost wanted to go home on July 16th because they were so incredibly upset about the Great Compromise. They thought it was an anti-republican compromise. Madison could not have been more disappointed in that, yet he’s the one that writes about the Senate and has to try to defend that it’s based on equality of the states.

Madison says in one of the Federalist Papers, “Think about not from whom the advice comes, but whether the advice be good.” And so they really did set a very high standard for political discourse, even though it’s political discourse about a particular cause at a particular moment in history. Jefferson called the Federalist Papers, “The best commentary on the principles of government that was ever written.”

Richard Reinsch:

Some have said, and this I think leads to a broad question, the Federalist Papers, really what you need to read are the convention notes, and there are various versions of those. But that’s really where you learn about the constitution. And the state ratification debate notes, which we now have like a 14 volume edition out on each state’s ratification debate, including press coverage of the debates, contemporary press coverage. And the Federalist Papers are something else that’s been overemphasized, but I think that leads to a question, which is what does Publius add, contribute, to our thinking about the constitution that wasn’t there before?

Colleen Sheehan:

Well it’s the most comprehensive of all the writings during the ratification era by federalists or anti-federalists. As you know Richard because it’s published by Liberty Fund, Jerry McDowell and I put together a book called Friends of the Constitutions, Writings of the Other Federalists 1787-1788, there’s a whole slew of people who wrote to advocate ratification of the constitution. And there’s some very, very fine writing, foreign spectators, just fabulous material. I think that those essays are excellent, and James Wilson, and a number of others. But no one comes even close on the federalist or anti-federalist side to such a comprehensive examination of the principles and processes of the constitution. So what the Federalist Papers adds is people like Justice Story, and still today the Supreme Court not at all unusual to see the Federalist Papers cited in court opinions. It’s an in-depth, rich interpretation of not just the provisions of the constitution, but the meaning and purpose of the constitution. Now that is not to say that it’s pure philosophy, it’s not. It’s political philosophy, it’s very political. It has a political purpose, it’s for a particular cause. But as Publius says in one of the Federalist Papers, one of the reasons I think that they wrote anonymously, somebody asked me this just the other day, “Why did they write anonymously? Were they trying to hide something?” Well first of all of course it’s very typical in the 18th century for people to use pen names. But I think the other reason is that they don’t want to be identified as either partisan advocates for this, and for people to make a judgment just based on whether they like Madison or they like Hamilton or they don’t like them. This kind of idea that factions are often caused by attachment to leaders. You’re pro-Trump or you’re anti-Trump. If Trump is for it, you’re against it, things like that. They were avoiding that. Madison says in one of the Federalist Papers, “Think about not from whom the advice comes, but whether the advice be good.” And so they really did set a very high standard for political discourse, even though it’s political discourse about a particular cause at a particular moment in history. Jefferson called the Federalist Papers, “The best commentary on the principles of government that was ever written.” Pretty high praise.

Richard Reinsch:

I wanted to talk about this essay because to the extent people have read the Federalist Papers, they’ve encountered it maybe in a survey course, and it’s one of the central papers. Although, I’ve been taken by one essay in particular on this in your edited volume on the degree to which the Federalist Papers is about national security and having a strong union in order to protect the country. And I’ve tended to always go past that and go straight to the thinking about constitutional liberty and republicanism in the later essays. But the Federalist 10, famous essay, Madison finds a novel idea, perhaps extent of the republic will help prevent against the vices of minority or majority faction through the instrumentalities of the government. Was he wrong about that ultimately? Has he been proven wrong just through sheer size of government and the ease with which special interests can in fact work against the greater good?

Colleen Sheehan:

This is actually a question that I’ve been trying to myself give some good thought to lately. So I mean his idea, as you know well Richard, is that he sort of turned the small republic argument on its head, and had always thought that you can’t have popular government, government by the people, except in a small territory. Because if it gets large, large nations, and especially empires, are despotic. I mean look at China, look at Persia, look at what happens to Rome when Rome expands. And so there’s hardly … I mean no one disagrees with that until Madison says, “Well but wait. One of the things that a large republic can do is control the violence of factions.” But the only way Madison thinks we can do that is if this large republic is also a federal republic. There has to be small republics within the large republic, so that the tools of self government are still viable. And so federalism is not just a mere compromise for Madison. Federalism is absolutely critical to republicanism. That’s my read of Madison on this.

But this whole idea of states, what state does, is create time for deliberation. And Greg Weiner is the master of this, his book Madison’s Metronome, is all about this idea of time, and how time slows things down. Like what they used to say in the 18th century, “Save your breath for porridge.” Today we say, “Count to 10 before you respond.” That cooler heads will prevail, that reason can prevail over passion, if we can just slow things down. Now I actually think it’s more than just time that’s at work here, that space creates more than time, that what Madison had in mind was that something’s happening. I actually, in the article I wrote for this to Jack Rakove’s chagrin, I quoted Buffalo Springfield that, “Something’s happening here.” There’s something happening in this time of this slowing down. And the processes in place, that Madison envisions in place, have to do with the refinement and enlargement of public opinion during this time, and that there’s all of these mechanisms as well as extra-constitutional factors at work. Representation. Newspapers, the growth of newspapers across the country, has to do with communication and that communication is how we refine and sharpen, hone, moderate our selfish and narrow opinions. Basically it’s a form of civic education, right? This is what civic education is all about, it’s elevating the public view. Now what does that mean today? I think that this made a whole lot of sense in the 18th century. I still think theoretically it makes very good sense.

The problem with our day is that there are things that are equivalent to the contraction of the territory. When folks say today, “The world is a smaller place,” it’s not that the globe has shrunk, it’s that communication is such that ideas, opinions, even passionate ideas and prejudices, can spread rapidly and quickly. And so the rise of factions is once again a problem, especially because the internet in a way that of course it wasn’t in the 18th century. So even though we’re even a larger country now, in some ways we’re smaller, and this makes the possibility of rule by faction once again a problem in America in a way that hasn’t been quite so … I mean it’s always a problem Richard. The solution in Federalist 10 is not a fantasy yet because in the final analysis, if a majority is determined to be factions, the majority makes the law in the end. There’s no substitute for a republican people being dedicated to republican principles.

It’s not an edited book, a political edited book, about how we ought to conduct ourselves and our manners. But it’s all about the idea of what it means to be a free people, the processes that have to be in place to be a free people. And it’s also of course not the government’s job to make us good, or to make us happy. That’s our job.

Richard Reinsch:

As I listen to you talk about is the world shrinking, and that brings to mind that technology enables people to demand more from the government or to increase their inputs, and to be dissatisfied even with a Congress being able to handle them and wanting immediate redress of things. But that to me suggests there’s another problem here, and it’s a problem that Willmoore Kendall wrote about evaluating the Federalist Papers, which is how do the people remain virtuous. And he had a great essay, The Missing Federalist Paper, where he tries to argue essentially there’s a paper missing here on the nature of the virtuous republican people and how they deliberate. That there was perhaps too much presupposition in the Federalist Papers about republican liberty in that regard, that there’s not their engagement with virtue that needs to happen. What do you think of that?

Colleen Sheehan:

Well that of course has been one of the question that’s been predominant among scholars of the American founding for many years, and the dominant thesis about the founding is that they dispensed with the need for virtue in the citizenry. And instead, they created what might be called a modern commercial republic. This was Martin Diamond’s thesis, lots of folks, that you can have a nation of devils and you could still end up with the public good because of the kind of course/counter course, sort of politics, one vice counteracts another vice. And somehow in the end, you get a common denominator, but the low common denominator. There’s nothing elevated about it. So Martin Diamond called it low but solid. It’s mediocre. America celebrates mediocrity. I just don’t see that at all, I think that’s missing the forest for the trees in the Federalist Papers. Publius is not preaching about virtue.

Processes don’t create virtue. Madison says in Federalist 14 that what we’re doing is foraging not just a new course, but a new and more noble course. And in Federalist 39, he talks about the spirit and the genius of the American people. And then of course he talks about later on in Federalist 55, is there no virtue among us? Well if there’s not, no amount of check can do anything to make this experiment work. So I mean it really is an experiment in self government, the Federalist Papers. It’s not an edited book, a political edited book, about how we ought to conduct ourselves and our manners. But it’s all about the idea of what it means to be a free people, the processes that have to be in place to be a free people. And it’s also of course not the government’s job to make us good, or to make us happy. That’s our job. The government’s job, when Madison says in Federalist 10 that the first object of government, a lot of people mix this up and they think he said the first object of government is protection of property. It’s not at all what he said. He says it’s the protection of the faculties of man from which the rights of property originate. So it’s a protection of our exercise of freedom, the freedom of the mind, and it’s on that basis that we make choices, hopefully based on reflection in choice, that then creates a free country and a free people. It’s not the job of the constitution to tell us how to live our life. It’s not the job of the constitution to tell us how to live our life, it’s our job to make a constitution so that we can live our lives well.

Richard Reinsch:

So with Publius obviously we have these institutional mechanism. Maybe mechanisms isn’t the right word, but processes and procedures to both give government energy that it needs to govern, and also to restrain it, channel it, filter its power. There’s famous discussion in Federalist 63, the idea of auxiliary precautions are needed to protect constitutional liberty and the overall workings of the system, separation of powers, checks and balances, the executive veto. He doesn’t mention judicial review I don’t think, although that comes in later. There’s a later discussion of the judiciary. Are these auxiliary precautions still working? There’s a lot of smart people now talking about how this is just a misguided thing. And the discussion’s been going on for a while that of course people put their partisanship now above say defending the interests of the institution that they’re in. It’s far more important if you’re in the party in Congress that you go along with your president rather than say defend precedence that outlines separation of powers. Was this sort of another misguided notion, or is there something deeper going on?

Colleen Sheehan:

The idea of auxiliary precautions and checks and balances and things like that are are these things still viable today?

Richard Reinsch:

Are they outmoded? Yeah, bipartisanship, yeah.

Colleen Sheehan:

Yeah, great question. Let me back up here just a little bit. In Federalist 51, a paper devoted to these inventions of proving auxiliary precautions that Madison talks about if men were angels, no government would be necessary and so forth. When he talks about these auxiliary precautions by which he means essentially kind of four things in particular. Separation of powers, checks and balances. Within separation of powers, also bicameralism, that separation within the legislative branch. And then finally, the vertical kind of separation between states and nations in the form of federalism. And so he talks about the necessity of these auxiliary precautions, these inventions of prudence. But he also says, which is often forgotten in this essay but, “A dependence on the people is no doubt primary control on government. So what experience has taught mankind the necessity of auxiliary precautions. Still, the primary dependence is on the people.” In other words, on the people, their character, what they believe in, what they cherish, their morals, their mores.

But remember when these bureaucrats take place of the people’s’ representatives, they’re taking the place of the people. It’s a destruction of any possibility of self government. And what is tyranny except the rule of masters over those who must obey, and that’s what the administrative state in America has become.

And so that’s where Publius is always number one. There can’t, as Joe Allen has said so well, there can’t be a republic without republican citizens. And so that’s the forest that’s often missed for the trees by some folks I think reading the Federalist Papers. Of course separation of powers, checks and balances, none of these things are mentioned in the constitution. They’re woven in the processes, the way it’s setup, but the words aren’t there. Are these things outmoded today? Well the progressives think so. This starts with Woodrow Wilson, he really didn’t like Madison’s idea at all. These two Princetonians couldn’t be further apart in their views on government. And Wilson thought it just got in the way of good administrators getting things done. And if Wilson had his way, he basically had public opinion … He thought most people were pretty stupid and that they should be quiet. That’s not Madison’s view. Madison is absolutely … he really was a man of the people in the sense of promoting a reasonable public opinion and trying to find the processes to do that. I think those things are still, separation of powers, checks and balances, bicameralism, still as important and viable today, and necessary if not more necessary today, than they’ve ever been. Look, a lot of these ideas come out of Montesquieu’s Spirit of the Laws. Why is Montesquieu so concerned with these mechanisms and processes of government? Very simply, the prevention of tyranny. Liberty is not safe when all power is concentrated in the same hands or set of hands. And so this is just a truism in politics that these kinds of institutional arrangements are absolutely critical to the workings of a free government.

Richard Reinsch:

Question for you. How would Publius respond to the creation of our modern administrative state? How would he respond to … I mean you see in the conservative legal side there’s constant talk of the non-delegation, a doctrine that this is automatically unconstitutional. Progressive scholars would say, “No, there was actually a delegation near the founding.” But apart from all of that, just the administrative state holding these three powers in its hand seems to me, as I read the Federalist Papers, the definition of tyranny. And a lot of smart people writing about how to curtail this, a lot of smart people writing about reinvigorating Congress with its powers, and nothing really seems to happen.

Colleen Sheehan:

Yeah. I mean I think for Madison and Hamilton and Jay, Hamilton might not be quite as vehemently opposed as Madison, but even he would be opposed because these guys are not elected, and they are running the country. John Marini has done such a great job on this subject. Congress has advocated its responsibility to rule. I mean they are supposed to be making the law, which is the most important function of government. None of the others can do anything until there’s some kind of law to be enforced and interpreted. Yet they’re not doing it. They’re allowing these bureaucrats, these nameless, faceless, unelected people, to basically take the place of the people’s’ representatives. But remember when these bureaucrats take place of the people’s’ representatives, they’re taking the place of the people. It’s a destruction of any possibility of self government. And it is what is tyranny except the rule of masters over those who must obey, and that’s what the administrative state in America has become. When David talked about the veracity and kind of an iron cage, and Ralph Lerner wrote a piece once where he talked about, “Shaking the iron cage,” and don’t you feel that way sometimes? I mean who doesn’t in America today with the government is just one aspect of this? This mentally has seeped through our country. I mean it’s in universities. Everything has become the DMV, where nothing is possible to get done without lines that are enormously long with people standing behind the counter who don’t even ask can they help you half the time because they’re talking to someone else. I mean this whole business of people ruling your life, and it’s inefficient, and it’s tyrannical, and it’s meant to make us be some kind of unthinking, mindless, not citizens, just kind of creatures who wait to take the next order from the paternal state. Sorry, I get excited about this because I find this stifling, enervating. I think it’s one of the worst things, and it grows more and more. Universities, and especially state universities, are just absolutely … How can Amazon get you toothpaste within 18 hours, but we can’t get a check paid to somebody that we have come speak and give a lecture. That takes two to three months. Why is it so impossible to get these things done?

Richard Reinsch:

No, I’ve asked myself the same question at any number of institutions that I deal with. And even as we think about the lackluster response over basic medical goods and devices in response to the COVID crisis, that somehow it became impossible to find an N95 mask. That was because of the administrative state, most people didn’t realize that, and the licensing procedures of the Food & Drug Administration made that nearly impossible at first. And then of course you’re behind the ball and you need it to generate them. I’ll end with a question that I think about, and I think Publius sheds light on maybe how we should think about. It seems light factually it’s nearly impossible to deliberate about serious questions anymore, not only in Congress but in public. What would Publius make of that? And just given your discussion about time and delay and this idea in the Federalist Papers the cool and deliberate sense of the community, I mean this is sort of republicanism working well, but it doesn’t work well, this part now for us.

Colleen Sheehan:

Before I answer that one, I want to give one example of this whole mentality that goes along with the administrative state of things that can’t be done, it can’t be done. Imagine before the coronavirus. I was just talking with some friends, Zooming with them yesterday about this, and had anybody said at a university, “We all have to go online within the next week,” they would’ve said, “It’s impossible. It’ll take us seven years to figure that out. Absolutely impossible.” But every university within a matter of days managed it. We all just jumped in and did it. I learned Zoom. If I can learn Zoom, anybody can learn Zoom. I’m not very techy. And people just did it because necessity is the mother of invention. It’s amazing what people can do if they give it a shot. These things are not so impossible, and do not need so many committees and so much discussion all the time. So that’s one thing.

Why don’t we deal with serious questions anymore in America? Harvey Mansfield’s chapter in this book is about that, and certainly in terms of the academy and the social sciences, political science in particular. Political science deliberately refuses to deal with the important and serious questions because they can’t deal with any of the questions that have to do with value, which of course are all the important and interesting questions in politics. And so political science has just decided to be kind of a boring, meaningless discipline, and it’s no wonder that people who actually are in politics don’t read anything that political scientists write. I mean it has no relevance to political life.

I don’t think in a society though, Richard, that we have dispensed with the serious questions. I think they’re out there, and I think many citizens are talking about them. And that’s why there’s so much controversy in the country right now because there’s a disagreement about healthcare, about abortion, about marriage, the list goes on and on. These are all questions about justice and how we should live our life. What it means to be human, and what is the role of government vis-a-vis the individual in these kinds of decisions that we have to make as individuals and/or as a society? Politics won’t go away. These questions are there, they’re important. And I think ordinary citizens are dealing with them. It’s true that Congress tries to run away from a lot of these questions, but we have a presidential election. I mean it’s hidden behind a veil of COVID-19 right now, but I think the American people are demanding that those who would be the leader of the United States take up these questions, take a stand on them, and say why they believe one way or another. Joe Biden has recently taken a very different position on the Hyde Amendment than he held previously, and there’s some people who celebrate, and some people who don’t. But either way, his feet are held to the fire on those kinds of questions, just like Trump’s feet have been and will continue to be held to the fire on what he says and he believes.

And what the future direction of the United States is, I think the biggest question for all of us is are we one people? Are we any longer one people? What does it mean to be an American? If Tocqueville came here today Richard, and went around America and observed in that brilliant way that he did back in the 19th century, who would he meet? Who would these people called Americans, what would they be like? What would he think of them?

Richard Reinsch:

Colleen Sheehan, thank you so much for your time today. We’ve been talking about Publius, America’s republican genius. Thank you so much.

Colleen Sheehan:

Thank you Richard, it was my pleasure.

Richard Reinsch:

This is Richard Reinsch, you’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

Rōnin Without Masters: A Never Trump Assessment Dec 21, 2020

Richard Reinsch:

Welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re joined by Steven Teles to discuss his new book, coauthored with Robert Saldin, Never Trump: Revolt of the Conservative Elites. Steven Teles is professor of political science at the Johns Hopkins University and a senior fellow at the Niskanen Center. He’s the author and editor of a number of books, including most recently The Captured Economy: How The Powerful Enrich Themselves, Slow Down Growth and Increase Inequality, with Brink Lindsey, and also Prison Break: Why Conservatives Turned Against Mass Incarceration, coauthored with David Dagan from Oxford. Steven, glad to welcome you to the program to discuss this new book.

Steven Teles:

Happy to be here, I should mention my coauthor in this book is Rob Saldin of the University of Montana.

Richard Reinsch:

Okay, excellent. Thinking about this book, what got you interested in writing about the Never Trump phenomenon?

Steven Teles:

I’ve made a little bit of my business over my now 25-year career of writing about various forms of conservatism, going all the way back to my first book on welfare policy. So, studying conservatives has not been a recent phenomenon, and I’ve largely focused on what you might think of as the elite stratum of conservatives. There’s lots of other political scientists who study conservatism as a mass phenomenon, or who study conservative social movements, but I really focus on what you might think of as the intellectual or professional cadre of conservatives. I studied with conservatives way back when at the University of Virginia, where my advisors were Martha Derthick and Jim Ceaser and Steve Rhodes. So, I’ve been at this for a while, and when the election happened, I obviously paid close attention to the conservatives who had opposed Trump, a lot of whom were very disproportionately in that group of intellectual and professional conservatives who I make it my business to study. And it turned out that Rob Saldin, who I’d known who was also a PhD at the University of Virginia, was also nosing around this subject, and we decided to dive into it together. And so, we partially studied this in a way that you don’t usually get to in political science, in realtime. We started this pretty early in 2017 doing interviews, and I just thought that people who were left behind by a lot of the rest of their party, and yet seemed to be sticking to their guns, was a interestingly counterintuitive phenomenon, and I usually start out not with a theoretical question but with a puzzling phenomenon in the world, with the assumption that I’ll figure out what it is about theoretically later on. And so, that’s where I started.

Richard Reinsch:

I want to get into the principles and reasons and motivations which you set forth in the book, to understand the Never Trumpers. But before we do that, a question I have for you, and you just mentioned this. One of the great parts of the book are the interviews that you have with these leading thinkers, writers, political operatives, lawyers, et cetera. But do you have a sense in 2020 of what they make of their efforts now? Was it worth it? Regrets? Are they proud of what they’ve done? Where are they four years later?

Steven Teles:

Yeah, there are very few of the people we interviewed for this book who really turned back on what they did in 2016 and after. Again, the people I’ve talked to, most of them say that they were proud of it, that they think that nothing that’s happened subsequently has altered their view of Donald Trump, and that many of them often express this in terms of, they simply thought this was the honorable thing to do. Now, again, one problem with interviews is it’s always a little hard to know how much of it is post-talk rationalization, but I do think that one fact that we really underestimate in politics is… often because we have cynical, and especially in political science, we have public choice theories that are basically just applied cynicism, we tend to underestimate people’s conceptions of honor. But I think especially among the national security conservatives who really were the sort of leading edge of Never Trumpism, that honor is a really powerful and important part of the way that they make sense of the world. And they found Donald Trump a dishonorable person, and they, I think… You can look at all of the Machiavellianism that you might project on them, but I think simply, a lot of them thought that it would be dishonorable to, as they often use the term, to “bend the knee” to Trump in a way that they thought many other conservatives did.

Richard Reinsch:

I want to get to the principles question. You’ve kind of touched on that, but I want to ask it. You asked this question on page three, I’ll ask it to you: why did these men and women, who had not long ago been party stalwarts, take the historically dramatic step of actively opposing their own nominee, and then continuing to hound him in office?

Steven Teles:

Again, one thing to note is that there are different people here who come in different shades, and that some of those differences are actually quite important. I do think there’s one set of Never Trump conservatives who you might think of as the people who are associated with the ancien régime, right?

Richard Reinsch:

Yeah.

Steven Teles:

They dislike Trump because he represented a rejection of what they understood to be conservatism, and they liked the old conservatism and didn’t like this new populism that Trump was trying to substitute, and in particular we argue in the book that they believe they were authorized to try to stop Trump. Especially when you think about the public intellectuals, they had a conception of their role in the party that was really about preserving it against what they took to be dissident or unclean versions of conservatism. And for many of them, they had been at that work for quite a long time, so there’s some interesting interview material here with Jonah Goldberg, and Jonah had been having fights with people on the alt-right for a long time. And so, I think when Trump came around, he partially processed Trump through the same fight he’d been having with the alt-right for years. And so, I do think that many of these people thought that they had a particular role in the party, which was to preserve it as a conservative movement party. I think there were other people who stood up against Trump and continued to do so, partially for religious reasons, right?

I don’t think it’s an accident that so many Never Trumpers were Jews and Mormons; here’s some very vivid interview material in the book along those lines that… where other conservatives could imagine Trump as someone to negotiate with, or cut a deal with, or that they didn’t love him but they would have to make the most of him, many Jews and Mormons processed him through a very different filter, which we call a catastrophic imagination, an ability to imagine things getting far, far worse. And so, they saw in Trump more than just what was on the surface, and I think reacted to him in a much more intense way than many other conservatives who eventually made their peace with him.

Richard Reinsch:

What do you make of… I mean, just interesting, the Jews and Mormons… evangelical Christians widely known supported Trump. The vote share that he received was incredible. But also, devout Roman Catholics seem to have had not as much of a reticence supporting him, and I’ve read stories of Cabinet members and those in high places serving Trump in the White House, quite religious along those two lines. What do you make of that?

Steven Teles:

Yeah. I mean, I do think especially with evangelicals and to some degree with Catholics, and I don’t want to say I’m an expert on the Catholic side of this, but I do think… again, when I mentioned the catastrophic imagination before, in a way, there were sort of two catastrophic imaginations going on in this campaign. We have a long discussion of the famous “Flight 93” article.

Richard Reinsch:

Yeah. I remember it well.

Steven Teles:

Yeah, which Michael Anton wrote, which again was this very powerful metaphor of, this election was potentially the last election in which conservatives could still preserve their role in American society, and if they lost, then it was going to be essentially communal destruction with a Hillary Clinton presidency, right? They imagined that their institutions would eventually be regulated out of existence by liberals, and therefore, even if they had concerns about Trump personally, the option of accepting Hillary Clinton was sort of unimaginable. And again, I think Hillary also played her own… just personally had a particular resonance for this community in a way that it didn’t, for example, with Jews and Mormons. So, I do think many evangelicals had convinced themselves that this was not just the normal cycles of American politics, but that a Clinton win would be a more fundamental break in history, and therefore, they needed to find a way to get behind Trump. So, I do think that really was in the background for many Christians, and I think the other thing to say is the fundamental force of polarization is just very powerful. We have a binary political system and not supporting Trump meant supporting Clinton, and many conservatives, especially evangelicals, viewed her as indigestible pretty much to the same degree that they found Trump to be indigestible.

Richard Reinsch:

Yeah. No, also I think another part of this, too, is how Barack Obama chose to govern throughout most of his presidency regarding the opposition. And I think in particular, the last two years, his use of executive orders to get his way, apart from Congress, I think left a mark on the minds of many people regarding executive power. In the book, you kind of break out different aspects of those who identify as Never Trumpers by specialty, foreign policy, lawyers, political operatives, economists, public intellectuals. The first group you talk about are the foreign policy specialists, and I kept waiting… I mean, was there ever an awareness on the part of this group that maybe they, in fact, their consensus… which you note in the book, their foreign policy consensus, had in fact become the problem? That is to say, that they formed these groups to fight off Rand Paul, or to fight off Donald Trump, that actually, they should have been willing to more dialogue and talk to them, given that they may have been the group most responsible to make Trump possible?

Steven Teles:

No. I think… at least, I didn’t get… I mean, there was little-

Richard Reinsch:

I knew the answer to that question. I thought it…

Steven Teles:

There were references in some of the interviews to Elliot Cohen, who’s now the dean at the School of Advanced International Studies at Johns Hopkins, and was a very prominent Never Trumper and had served in the George W. Bush administration. He did say that a lot of the conservatives, the national security conservatives had been, in his quote, “sobered up” by the Iraq war. But I don’t think there was really the kind of fundamental reconsideration of foreign policy conservatism or… and I think a recognition that some of that sort of extends to foreign policy commitments to the United States, were related to support for Trump, and I do think there’s some evidence for that. So, I don’t think that was true. I mean, again, I think they very much thought that Rand Paul and that sort of species of foreign policy libertarianism, or isolationism if you want to put a different term on it, they really did think that that was the enemy. And they thought… And again, going back to that same idea, that they had a obligation, given their role in the party, to protect conservatism and protect the Republican Party against that. Just as many of these others conservatives saw themselves as authorized to perform a kind of guardian role against unclean versions of conservatism. I don’t think that they really re-thought that, or have done so now. I think many of them have more of that, “I didn’t leave the Republican Party. The Republican Party left me,” sort of attitude.

Richard Reinsch:

Assessing their efforts, when you talked to them, what exactly did they think was at stake? I mean, on one level, it’s sort of obvious, but at another level, as you note in the book, presidential candidates of both parties come to the foreign policy professionals, which you note are of all of the groups the most bipartisan, the most moderate in terms of domestic politics, the most willing to actually cross the aisle and work for another administration of another party. Do they, when they’re sort of looking at and seeing Trump arise, what are they thinking in terms of their overall consensus? What do they see at stake?

Steven Teles:

Well, I mean, again, to go back a little bit, one thing that really does characterize this group is what you might just think of as a fundamental anti-populist orientation to foreign policy, that they really do think that popular involvement in foreign policy is not a great thing. And in that sense, you might think of them as status. They believe that there is an American national interest, that it’s largely embodied in the continuing institutions of the American foreign policy apparatus, and that’s supported by this particular national security establishment that cuts across both parties. And that really is a fundamental belief that holds together a very large part of this establishment, and differentiates them from the centers on both the left and the right, who often do think that we need more popular involvement in foreign policy. So, they really do have a professionalized conception of this domain of public policy, and again, a lot of what holds the Republicans and Democrats together, even as they disagree about particular policy areas like our stance toward Iran, or how aggressive we should be toward China, they do think that that debate should be mainly dominated by them and not by the hoi-polloi.

Richard Reinsch:

Not by Congress. Nah, I’m just kidding. Thinking about your work on this group, what do you make of them as a whole? You note in the book, the foreign policy consensus group, they’re all sort of in one block, they inhabit a small network of institutions, they’re all in Washington, DC. Is there something peculiar about this group that sort of left them open to a Trump candidacy?

Steven Teles:

Yeah, well, I mean, again, one thing that did come across that we did try to make clear is… one of the main reasons why they were so aggressively against Trump is that Trump was so aggressively against them. As compared to any… most of the rest of the professional groups that make up this stratum of the Republican party, Trump was most directly willing to say that he was rejecting their role. We use the concept of jurisdiction, which comes from Andrew Abbott’s fantastic book on profession, and essentially, what Trump was doing was he was rejecting their jurisdiction over foreign policy. And Trump repeatedly said that these guys, in his colorful terms, were losers, that he was going to bring in a whole new group of people. And so, in part, they rejected Trump because Trump rejected them.

The other thing I would say is these people are quite distinct in their experience of the state. Almost all of them have had actual governing experience. One quote, I think it was from Phil Zelikow, I’d have to go check, is to say that the lives of people who do this kind of work are characterized by parades and funerals, that the ceremonial element of the state really matters to these people in a way that it’s just not as true for other groups. And I should say, I’m a child of government, although a different part of government, my parents were both civil servants, and procedure and routine and the actual rituals of the state matter to a particular set of people. In some ways, you can think of populism as a rejection of those sort of state rituals. So, I think I understand that group of people, and why Trump… and again, his very active and open attack on the ritualistic quality of how state actors are supposed to behave… for them, was so indigestible. And so, I think that’s one thing that really struck me. But again, that also means there are relatively insular groups. They’re very much defined by their relationships with each other, and their relationships to the state apparatus.

Richard Reinsch:

Okay. I wanted to just move on to the political operatives that you discuss in the book. They seem to be the group most willing to compromise their Never Trump credentials. You describe them at one point as samurai without masters. What calculations does a political operative face here with the rise of Donald Trump?

Steven Teles:

The political operatives are a complicated group, and I actually think, in a way, the lawyers might be the one that were most willing to compromise with Trump, right? Some of the most active Never Trumpers, which now are associated with The Lincoln Project, came from that group of political operatives like Stuart Stevens and Mike Murphy. So, there were a lot of those, and again, a lot of that group initially had very strong anti-Trump attitudes, and I think a lot of that was based on their theory of how the Republican party was going to be competitive in the future, that they… I think this is an important thing to understand about this group, that a lot of the core coalition partners in the Republican party have a conception of the Republican party that’s very much rooted in the people who already support the party.

That is, they think the Republican party are evangelicals and business and those core people who sit around the table, whereas political operatives, pollsters, often have a more entrepreneurial theory of the party. They think about the various different groups in the electorate, and who might be able to be moved over. And as they look at, especially in the aftermath of the 2012 campaign, when they looked at the map, they saw an increasingly shrinking core Republican electorate, and believed that the Republican party needed to reach out, especially to African-Americans and Hispanics, or that the odds for them winning would just keep going down. So, they had a much more demography-rooted theory of how Republicans had to get elected, and therefore-

Richard Reinsch:

But that also had support in George W. Bush’s… particularly his 2004 presidential run, where I think he got close to 45% of the Hispanic vote.

Steven Teles:

Yeah. So, again, a lot of these people had worked for George W. Bush, or around George W. Bush, and they mostly thought that George W. Bush was on the right track. And these were also the kind of political professionals who ended up working for the ill-fated Jeb Bush campaign, which was also based on that particular theory of the Republican party, that the Republican party, especially on immigration, needed to soften its approach because they believed there were lots of Hispanics who, on the basis of faith or other things, would be open to voting for Republicans, but that the immigration issue just stood too much in the way.

So, part of what one group of these political operatives saw is that they spent four or more years trying to get the Republican party oriented to a different kind of approach where the non-white electorate was concerned, and suddenly Trump was coming in and blowing all that up, right? Doing everything the opposite of what they had been trying to convince people they were supposed to be doing. And I think many of those kinds of people, again Stuart Stevens and Mike Murphy, those kind of people, are good examples of that. They were the parts of the political operatives who formed the hardest core of opposition to Trump. Now, again, there was a whole other set of political operatives who had a very different theory, what you might associate as the missing white voter theory of the Republican party, and they didn’t agree with that. And so, Trump in some ways was doing, often in ways they found distasteful, but he was following more of their playbook.

Either you make the choice to change your business model, and sell services to someone else, or sell them largely to go more into market research or something else, or you had to find a way to make your peace with Trump because he controlled the party apparatus.

Richard Reinsch:

Yeah. Well, you also talk about in the chapter the reaction to the so-called autopsy report, because the other, I think legitimate, criticism of that report was made by people like Yuval Levin, Ramesh Ponnuru, others that… It was more free markets, more immigration, don’t talk about social conservatism, and that would win more elections. Their theory was, “Well, it’s actually the shrinking middle class that doesn’t really see this making their lives better. There are new problems, new challenges to living in America, raising a family in America, and the government should actually find targeted ways to make their lives better.” And they had ideas about college education, the family… subsidy child leave policies, et cetera, and their theory was that was what the party needed to emphasize. In a way, though, many of them I think temperamentally were Never Trumpers, or not on a level of principle, and they couldn’t really wrap their minds around supporting Trump who, in a way, sort of touched that thread they were playing on.

Steven Teles:

Yeah. So, that view… this cuts across between that and the public intellectual chapters of the book. I think for me, the people who are most interesting are the ones who were sort of pulled in opposite directions, and I do think that people like the Reformicons that you mentioned had been engaging in a sort of ongoing battle with the people who were around the autopsy on… again, a very different theory, the autopsy people more or less treated standard conservative economics, and also foreign policy for that matter, as fine. They thought that there was a significant part of the non-white electorate who I think they often imagine is sort of middle-class, as aspiring, as entrepreneurial, who would vote for a Republican party if they just didn’t think that Republican party was exclusionary or even racist.

And I think that’s not inconsistent with where the sort of Koch network part of the Republican party was, and that was a very important part of the 2016 primary, is what some people call the sort of Koch primary. Where all of the candidates had to go around to these various Koch-supported events, and that money and the events and all that other things, created a lot of pressure to accept what you might think of as the full Koch package, which was very free market on economics, and much more open to more open immigration and other things on the other side. And in some ways, I think that does explain a fair amount of why Trump had a pretty open room to run in the primary, because that Koch primary had kind of squeezed out a lot of that Reformicon synthesis which imagined the Republican party as a more consistently working-class party, which had implications both for immigration but also for economics. And so, that’s why those Reformicons are in a way the most interesting group here, because they liked the direction in policy terms that Trump was pushing, and yet they also found him entirely morally bankrupt. I think that certainly is the kind of approach that comes across very clearly in the quotes in the book from Yuval Levin.

Richard Reinsch:

That resonated with me, because in November, late November of 2016, I wrote a piece for RealClearPolicy where I made this argument, that Trump was the Reformicon candidate. He’s the one they’ve been waiting on. I also analogized Theresa May to this, as well, in Great Britain. I remember talking to a significant reform conservative, and I could tell they understood that, but they didn’t want to go out in public and say it, or try and make these linkages, which I thought, that’s an interesting way to do politics. Maybe not the most effective way, but this is true, and their theory, America may be still sort of socially conservative; they don’t want to be lectured or hectored about anything, and somewhat economically liberal. Much more than, say, the Koch network has their thumb on, and a lot of people like Henry Olsen and others have sort of come out and written about this a lot… I mentioned at the beginning of this segment on the political operatives that they seem to be the most fluid. I was thinking here about the autopsy report itself, the principal authors, you mentioned Avi Fleischer, who was Press Secretary for George W. Bush for a time… Ari Fleischer, I’m sorry. Sean Spicer, we all know his performance, and then also Reince Priebus. And then, they sort of go over to Trump, and then you also have Never Trumpers setting up PACs to fight Trump. But then, most of them quickly peel off and go to Trump’s camp. You make that to be the business model, really, that political operatives face.

Steven Teles:

Yeah. Again, when you think about how… I’m not typically a highly materialist social scientist, but I do think these people’s business… politics really is a business, and there’s actually a great book by my colleague at Hopkins, Adam Sheingate, called Building A Business of Politics, about the growth of this particular segment of people for whom selling political services, whether it’s polling or turnout or whatever, really is their business. But they have a very small number of people they sell to. In a way, it’s a kind of monopoly model where it’s not like they’re selling it all to the RNC, but the RNC is often a very important filter through which people get jobs, and Trump took that over. So, either you make the choice to change your business model, and sell services to someone else, or sell them largely to go more into market research or something else, or you had to find a way to make your peace with Trump because he controlled the party apparatus.

Richard Reinsch:

I think also, for all of the groups you describe, my sense is… and I’m not in Washington, I’ve never worked in Washington, but there’s a sense that Trump’s going to lose. And then, I think it’s clear by… I’m trying to remember March or April of 2016, that he is going to be the Republican primary winner. That seems assured, even though you have… maybe you can talk about the machinations of Bill Kristol and others to try and recruit an alternative candidate rather late. But with that, Trump is going to win the Republican primary, and then it’s, “Well, he’s going to lose. We know he’s going to lose the general election.” At what point… maybe it’s election night, maybe that’s the point, but it begins to dawn on people that this was a choice that comes now with rather severe career consequences?

Steven Teles:

Yeah. I do think that it’s really hard to underestimate how much people really thought Trump was going to lose, right? And again, that’s a little hard to reconstruct now because we know he won, so it’s hard to get our minds back in that moment when everyone… when this was a consensus position that Trump was, in some ways, obviously absurd. I do think that was behind a lot of the political professionals, is that they thought everything they knew meant that Trump was going to lose, and lose very badly, and drag down a lot of other Republican candidates, and that their job… again, going back to the idea of jurisdiction, their job was to try to get across to people what the basic facts were about the electoral map. And I do think a lot of people made decisions that they might have made differently if that wasn’t the case.

One thing we mention is a lot of people had this idea that one reason to go out so clearly against Trump is that they would be in a good position to come in as kind of the clean team after the election, and go and fumigate the place, and clean up, and get back to sort of normal Republican politics… And the fact that this was so unexpected, I think, did mean that a lot of people had to very suddenly readjust where they were in the presence of this enormous, unexpected shock. And so, some people stuck to their guns and decided that they were going to stick to the Never Trump train, but a lot of people thought that Trump was going to get impeached and removed, potentially, and that that was going to sort of make the nightmare go away. But then, a lot of other people were suddenly faced with the decision that either they bent the knee, or they were going to be thrown out into the ether with no influence whatsoever. And I do think that those calculations, which I do think we have to be somewhat empathetic with, that this was such an unexpected situation, and a situation in which people really didn’t have any anger for rationality, for figuring out how to make sense of what you were supposed to do in a situation like this. And as a consequence, people had to make fairly binary choices fairly quickly.

Richard Reinsch:

Is there any sense, in your interviews with these political operatives, many of whose names I recognize and they’re successful and they’ve made money in this business, which I’m sure is not an easy business, any sense after the election of, “Wow, I really got it wrong, and I’ve got to rethink how I’m doing this”? Or, “Man, this was just such a fluke. Who knows?”

Steven Teles:

Yeah, I mean, a lot of the people we talked to did think about Trump in terms of… if you ran the same election over again, that the odds that he would draw the inside straight that he did, with so many very small wins in so many places that allowed him to win even though, again, it’s very important to remember that he quite substantially lost the popular vote… That was kind of a fluke, right? And I do think in general, people are not great at updating their mental models of the world, and that there were… in general, people tended to lean into where they were already.

So, the Reformicons took this as a lesson that they should have been paying more attention, too. There’s a great quote by David Frum who, I should say, gives very good quotes. He said that someone had actually approached him and said, “Look, Donald Trump is saying everything you were saying about immigration. Isn’t this great? Shouldn’t you get behind Trump?” And Frum said something to the effect of, “The reason I had been pushing for a more restrictionist immigration policy was precisely to keep us from getting somebody like Donald Trump.” So, I think a number of people leaned into their preexisting theory, rather than updating their priors.

Richard Reinsch:

Yeah, and I mentioned a third option is, “No, I’m sticking by my principles. I want the party to expand along the lines we had, and that’s what I’m going to work for.” Who knows? Thinking along the lines… you talk about public intellectuals. We’ve mentioned a few here. How do those who identify as Never Trumpers see their role, many of whom still do, I think… they seem to be the ones who’ve been most secure also in their careers… but there’s also the demise of The Weekly Standard… It’s hard for me to understand that apart from being sort of an attack on an institute, on a periodical that had stayed Never Trump largely. But what do you make of them and their principles and ideas?

Steven Teles:

Yeah, I mean, one thing… again, one of the trickiest things to do in social science is to balance material and ideational theories at once, and usually, people just go into one or two camps, and we did try and balance that here. But if you look at public intellectuals, they often do have a very different kind of business model, right? Theirs is a nonprofit business model, for the most part. Whether it’s an actual nonprofit or it’s one that a… National Review, I think, is still mostly a notional corporation, but it’s mainly a nonprofit. So, many of conservative public intellectuals work for institutions where they speak largely to a liberal audience, and that a lot of the way they think of their job is trying to demonstrate that conservatism is in fact a legitimate intellectual enterprise, that it’s not just a matter of racism or greed, but that they have really deep, fundamental principles that deserve respect. And Trump for them was obviously a very big problem, from that point of view. This is the old line that his business is making the subtext, text. Right?

Richard Reinsch:

Yeah.

Steven Teles:

Saying out loud the thing you’re supposed to say quietly, and that’s a big problem for them. And so, I think that certainly effected a lot of the ways that they responded to Trump, and the way that distinguished them from other parts of the party.

Richard Reinsch:

Also, we’re talking about people, many with academic training… reading a lot, you write a lot, you’re thinking deeply about ideas, and seems to me there’s just this awareness that Trump doesn’t really have any ideas other than the sort of very visceral statements like, “Ban Muslims,” that would seem to then resonate, and that sort of horrifies public intellectuals, because this is going to shape how people see conservatism and the Republican party.

Steven Teles:

Yeah, and again, I think the other thing to remember is, to go back to the guardian mentality we mentioned before, they really generally tend to tell a story of the conservative movement in which the role of conservative intellectuals is a really important part of that narrative. Right? Their story is about how the Republican party became a conservative party, and how it incorporated conservative ideas and intellectuals. So, intellectual consistency matters to them a lot more than it would to other parts of the conservative movement. So, it wasn’t as easy for them just to sort of switch and say, “Oh, but we’re all populists now,” when that was in some significant tension with what they thought their job was.

There’s a lot of discussion in the book about National Review, and National Review had sort of regularly played this role of… I think Jonah Goldberg describes it as a Texas Ranger sort of protecting the conservative movement against invasions from outside forces. And that’s really what they… when they saw Trump, they saw that as this kind of invasion of outside forces. And again, outside forces that they have been fighting for quite some time. When you think of the battle between National Review and Breitbart, they saw this thing of sort of mainstream conservatives and the Trumpism as just a reiteration of that same battle that they had been fighting going back to the Jon Burge Society, back to Pat Buchanan. When you think about that, that in one way the conservative movement’s story as itself is a story of these recurrent purges, and that they thought it was their job. Their job was to purge the unclean elements outside of the party.

Richard Reinsch:

It does seem to me in retrospect… and things have changed a lot in this world in the last four years, but it was hard to have a conversation if someone just wanted to dial back on immigration. Not as a anti-immigration measure, certainly not even having racial overturns, but just have a discussion about, “Well, should we have this immigration policy that we’ve operated with for the past 50 years? Should it be rethought?” Similarly, and much more dramatically in Europe, obviously, in European countries, but also in foreign policy and wars, that it was hard to have a conversation about that. A good one. And certain magazines were formed, like The American Conservative, to try to have them. But I just wonder, too, was this group, in seeing themselves as the purgers, just too cloistered, really, from a lot of elements or a lot of kinds of people who were open and thought of themselves as conservatives in some way?

Steven Teles:

Yeah. I mean, I do think that… again, we’ve mentioned the Reformicons, and I do think that group again, which was very important in National Review, had been trying to get the rest of the party to pay attention to this. And again, National Review had always been more restrictionist, and it always had a significant group of people… Again, one thing is there always had been a significant group of people who were also on the much less… I don’t know what the word for it, sanitary side of the immigration debate. And those were many of the people who got purged, right? Peter Brimelow, who eventually ends up becoming the leader of the VDARE, which was a very longstanding alt-right publication, had been in National Review and had actually been a very senior and important figure in National Review. But the point is that I think this debate was happening inside the Republican party and inside of the conservative movement, and I do think this is where the very significant core of that Koch network really limited how much that could filter down to working politicians, both because of the financial and network and other kinds of roles that Koch played. There was no similar large financial coalition partner who was behind the ideas of the Reformicons, right? Their base, such as it was, was a base in the larger conservative voting population, rather than the organized and sponsored networks of the Republican party.

Richard Reinsch:

Also in terms of influence, I’ve heard Jonah Goldberg say… he thought basically… a large percentage of Republican voters basically were on board with what they were saying. And then what they learned throughout their primary campaign was that they weren’t. In fact, really, their ideas didn’t go that deep at all. So, did you find a lot of that sort of thinking in these interviews, that, “We were really not that deep. Yeah, I mean, we’re important to each other and to other high-caliber thinkers, but beyond that, it gets thin”?

Steven Teles:

Yes, I do think that’s true, and you saw that, I think, in the national security side that the one thing that Trump… again, we can have all the criticisms we want of Trump, but Trump had a kind of sixth sense for who actually held power, right? Real power. The ability to actually hurt somebody. Which, again, is that how I think Trump thinks about the world. And that there was a lot of power that was held by national security conservatives, or these public intellectuals, because people had developed highly routinized relationships between those professional service providers and the Republican party… And again, in the national security context, we talk about how Republican politicians generally thought that, just as almost a kind of hardwired matter of how you ran for office, that you would go collect up a bunch of these people, they would advise you, they would write position papers for you.

And Trump saw that you didn’t actually have to do that. That these people had no way to hurt you if you didn’t do that. But I think it’s interesting that Trump so clearly thought that he had to defer to their expertise, and he went so far as to basically sign on to these lists of potential Supreme Court justices that were put together by conservative organizations, and that’s because I think he saw in social conservatives, evangelicals in particular, real power. These were core coalition partners, and if they didn’t get behind him, that they could really hurt him. And lawyers got in through their relationship with social conservatives. That was their source of real, raw power. But public intellectuals for the most part had power because people believed normatively that they were supposed to look to these sets of people for guidance, and policy, and authority. And Trump sort of saw that they didn’t really have that kind of power, that it was kind of a inner, subjective agreement that people would have a certain kind of authority, and once you decided that you didn’t believe it, then it would disappear. Now, I do think… in the book, we talk a lot about how there are consequences to not drawing on that professional authority where governance is concerned, that it just becomes very hard to staff an administration when most of your professional class is on the sidelines, and I think that’s actually had very strong consequences for the way that the administration has run itself.

Richard Reinsch:

Talk about the economists. Where are they in this?

Steven Teles:

The economists were an interesting group. We actually went kind of back and forth about whether to include them. One thing that’s worth mentioning here is that almost no economist endorsed Trump, especially those from the elite stratum of the Republican party, and that’s because maybe even more than the national security conservatives, Trump rejected root and branch their entire way of thinking about the world. That in its very sort of basic founding, the economics is based on the idea of exchange for mutual interest, a basically non-zero sum view of the world. And that’s apart from any of the technical economics or analysis that we often talk about, but that just general worldview, that the world is made up of lots of opportunities for exchange for mutual benefit, is not Trump’s worldview. Trump’s worldview was a worldview of winners and losers, right?

The mistake I think the Never Trumpers made is they didn’t immediately recognize that they were now a minority part of the Republican party, and needed to organize appropriately in creating distinct, factional organizations. Instead, a lot of their organizations were more along the lines of Defending Democracy, where they thought that what they needed to do was to create a kind of unified front of classical liberals of all parties, or something.

Richard Reinsch:

Yeah.

Steven Teles:

And that extends to his view of the economy, that international trade is simply a matter of winners and losers, kind of a mercantilist theory of the world, and that was really, I think, built on his grounding in New York real estate, where it’s only business to go to manipulate the rules for your advantage, to take advantage of the people on the other side of the exchange. And most economists found that just genuinely almost like the economic equivalent of atheism. Questioning what the fundamental semi-theological view of the world. On the other hand, one thing that came up in a lot of our interviews is economists generally tend to have a very dim view of the state, whereas national security conservatives really do think the ritual elements of government matter. Economists are much more likely to think of the state as simply a giant forum for exchange, and that’s rooted in public choice theory. And so I think, as a consequence, they were less fundamentally appalled by Trump as a person, with some exceptions; I think Greg Mankiw certainly was one… but for the most part, many of them were more likely to see Trump as the reductio ad absurdum of what they believed about government already.

Richard Reinsch:

Yeah. So, right now, what are the institutional embodiments of Never Trumping? What lives on, what goes away, what dies? I mean, I suppose The Bulwark has become a significant online journal; Checks and Balances, but they don’t seem to be doing much; what else is out there?

Steven Teles:

Yeah. I do think, though, in the conclusion of the book, we raise the question of what becomes of these people, and there are a number of scenarios. I do think that it was a mistake in a way for Never Trumpers to respond organizationally the way they did. I think many of them… again, in this shock that came in the aftermath of the election, did treat Trump being elected as a kind of terrible trick that fate had played upon them, and maybe the earth could get put back on its axis in which they would be the dominant source of ideas and professional expertise for the party as a whole. And we argue that that was really a mistake, because it assumed that the Republican party could get put back together again as a more or less homogenous, fusionist party. And we say that the future, and the way the future of both parties is going to be much more deeply factional, where the parties are going to be organized into well-structured, deeply institutionalized, different factions that will negotiate with one another even as they’re competing against the other.

The mistake I think the Never Trumpers made is they didn’t immediately recognize that they were now a minority part of the Republican party, and needed to organize appropriately in creating distinct, factional organizations. Instead, a lot of their organizations were more along the lines of Defending Democracy, where they thought that what they needed to do was to create a kind of unified front of classical liberals of all parties, or something. And as a consequence, very few of those factional institutions of what we call in the book the liberal conservative faction of the Republican party have been built… I do think in the aftermath, if Trump loses quite badly in 2020, there will be much more of a market for that, and I do think a lot of the funder base of the Republican party has been frozen in terms of supporting stuff like that, because many of them are worried that Trump would retaliate against them, and not without reason. So, I do think that their future is to be the intellectual vanguard of a minority but pivotal faction of the Republican party.

Richard Reinsch:

Steven Teles, with that, I think that’s a good way to end. Thank you so much for coming on to discuss your book, Never Trump: The Revolt of the Conservative Elites. Thank you.

Steven Teles:

Thank you for having me.

Richard Reinsch:

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at lawliberty.org.

A Revolutionary Moment? Jun 26, 2020

Richard Reinsch:

Today we have Daniel Mahoney to discuss with us all things liberalism. Daniel Mahoney holds the Augustine Chair in Distinguished Scholarship at Assumption College. He’s the author of many books, essays, and reviews, including most recently The Idol of Our Age: How the Religion of Humanity Subverts Christianity. He’s also the author of The Other Solzhenitsyn, and currently is working on a book called The Statesman as Thinker: Ten Portraits of Greatness, Courage, and Moderation. Dan Mahoney, you are one of the most trenchant, wise voices in conservative political thought out there. We’re glad to welcome you back to Liberty Law Talk.

Daniel Mahoney:

Oh, my great pleasure, Richard.

Richard Reinsch:

Dan, a situation that has bothered me, it’s bothered you. It’s a very recent controversy amongst many other recent controversies that keep piling on is the fallout inside the editorial board of The New York Times, a newspaper that bills itself as the leading newspaper in our country. The end of last week and the beginning of this week, the second week of June, there was intense controversy over an op-ed written by Arkansas Senator Tom Cotton that was published in the initial days of the protests and the riots where he called for the military to be deployed, and the content of that op-ed, as many will now know, led to an internal revolt, particularly among younger editors and staffers at The New York Times who said that this piece constituted violence, particularly against their minority friends, and was unacceptable, and should not have been published. This has now led to the resignation of the editor of the editorial page, James Bennett. Ross Douthat today Friday, June 12th, his column takes his colleagues to task, and he says they are now engaged in something that supersedes liberalism, and is a psychology of anger. It’s a psychology of paralysis, crisis over identities, and seeks to use words really as weapons, not as an attempt to understand truth or political reason. Your thoughts on what, if anything, this crisis might mean for American liberalism.

Daniel Mahoney:

Well, I think for a long time now American liberalism has been post-liberal or anti-liberal in a very aggressive way. We can talk more about whether the American political order rightly understood is simply a liberal order. I don’t think it’s just a liberal order, but it has a very important liberal component, and that has to do with respect for dialogue, respect for persons, respect for fundamental liberties, a proper prejudice against censorship, against the idea… not that there’s truth, but that any person simply possesses the absolute truth, and has the right to impose that on everyone else, et cetera, et cetera. I think, and perhaps going back to the ’60s where we saw the rise of anti anti-communism, and then a series of cultural issues, a tendency to write off half of the American population as horrible or homophobic, or to make it out like pro-life Americans are anti-woman. These kind of currents have been around for a long time, but in the last 10 days or two weeks we’ve seen a tremendous radicalization of a large part of the left. These are categories as Ross Douthat properly says that are far beyond the liberal order, and that are filled with anger. By the way, I would add these are not voices that defend human dignity because they have replaced one absolutely unacceptable position that some people, some races are superior to another. By the way, very few Americans ever defended that proposition, even when racism was rampant in American society. They’ve replaced it with a different kind of Manichaeism. They are absolutely certain who the victims are. They are permanent victims. They are absolutely certain who the oppressors are, and they demonize the oppressors, who are whole groups of people and not persons who share mutual accountability, and they justify the silencing, and perhaps much more to the future of those who have been demonized. What we are witnessing at The New York Times, and our universities, among the wider intellectual clerisy is a totalitarian logic, not totalitarian yet in practice or fully totalitarian, but it’s heading in that direction. It’s not even a particularly soft totalitarianism. It is the justification of silencing many people of goodwill who do not accept a… It’s the tyranny of ideological clichés. I’m afraid that increasingly are present and unless people resist and show intellectual and civic courage it’s most certainly in our future. The episode of The New York Times is what Charles Péguy called a cas éminent, an eminent case, an eminent case that reveals the new liberal logic at work or proto totalitarian logic at work.

Richard Reinsch:

When you say totalitarian logic, this position that one group is ontologically a victim, and can do no wrong. Another group is ontologically an oppressor, and can do no right. Where does that lead?

Daniel Mahoney:

Well, it’s a fully totalitarian logic. As you know, I have written widely on Alexander Solzhenitsyn, perhaps the greatest human being of the 20th century, and Solzhenitsyn insisted over and over again that the line between good and evil runs through every human heart, not through races or classes, nations or regimes, and we need to judge human beings as persons. When we condemn whole groups as intrinsically evil, as you were saying ontologically evil, evil in their being, and others as victims who… and by the way, the victimization part is just as bad as the demonization part because as somebody like Frederick Douglass pointed out or Booker T. Washington in a very different way, Black Americans, like all human beings and all Americans, need a certain degree of pride, of self-respect, and self-help. When they are told they lack agency, when we’re all told we lack agency, that we’re simply prisoners of fate, that we are either ontologically innocent or guilty, we’ve destroyed the freedom, the agency, the mutual accountability at the heart of human dignity and republican self-governance. When I see our civil institutions, when I see our intellectual clerisy bowing before a Black Lives Matter ideology, I’m not talking about the idea that all Black Lives Matter. Of course they matter. All lives matter, but the ideology that accompanies that particular movement, which is not an anti-racist ideology. It’s an ideology of victimization, and demonization. It’s anti-Black. It’s anti-human. It’s fully totalitarian in its logic and effect.

Richard Reinsch:

How did it come to pass? I’m just sticking with this thread of The New York Times. A newspaper composed of we might say certainly a class with great credentials. I imagine most of the writers and editors are Ivy league educated. Certainly, we’ve known for decades this is not just the leading newspaper in America, but the leading source of liberal opinion. What made the liberalism of The New York Times susceptible to accepting the logic of these, quite frankly, millennial editors and staff writers that language is violence, and silence is complicity in it or something like that? How did that happen?

Daniel Mahoney:

Well, it happened because our universities… Gramsci’s long march through the institutions. This ideology that is eating away at our civility, our freedom, our mutual accountability it has been in the universities for a long time now. It colonized humanities departments. It became the default language. English departments don’t teach literature. They teach post colonialism, a kind of para-Marxism. Another version of that ideological manichaenism and ontological demonization we just spoke about. These people weren’t educated in the great books. They weren’t educated in the Western tradition. They weren’t educated in the values of civilized order or with liberty. They were educated in agitprop, and I think I said this many years ago that eventually the spirit of illiberalism, of hate, of ideology that has substantiated their selves at our colleges and universities, and our intellectual class would come to in effect some body politic, and I think that’s what happened. Why do an increasing number of millennials praise Marxist Leninist regimes, think communism is a beautiful idea? Why do they buy into a loathsome “culture of repudiation” to use the late, great Sir Roger Scruton phrase? I think they’ve never been exposed to an alternative. I think the agitprop begins early.

You go to school, and instead of being challenged by what Matthew Arnold called “the best that’s been thought and said.” For the most part, unless you know better, you are initiated in this language of victimization and demonization, and there’s a point I made in the Idol of Our Age that I think is more relevant than ever. I argued that our present situation is marked by a mixture of toxic relativism and toxic moralism. When you no longer have rational standards of judgment that are the basis of a regime of stability, then there is no restraints on moral indignation or anger because nothing, no judgment is ever judged before the tribunal of reason. Michael Polanyi called this a “moral inversion” that people are officially relativistic, but morality goes underground and comes back as moralistic indignation and ideological fanaticism. That’s exactly where we are. That pattern of anti-reason, of toxic moralism, toxic relativism, if it didn’t completely dominate the universities, it was the leading force, the leading presence, and now it’s invaded the body politic. Let me add one more thing. In speaking about why so many left liberals were taken in by communism or today, perhaps, by a certain softness for radical Islam, Polanyi says, “They confuse the homonyms where the communists talked about justice, peace, and equality.” They did not mean what Christians meant by justice, peace, and equality or conservatives and liberals mean by that. These were homonyms with a very, very different meaning. Liberation theologians, progressive, Christians have taken, lots of political pilgrims got taken. I think the same thing is going on now. I think a lot of people have goodwill. I’m not sure whether these younger militants are people of goodwill, but many of them are taken in by the homonyms. They think when they endorse anti-racism they’re endorsing anti-racism. We should endorse anti-racism, but on the ground of rational assertion of human dignity and liberty, not on the grounds of ideological demonization, but the rot, the sickness, has been around for a long time, but now it’s metastasized throughout the body politic.

Richard Reinsch:

The toxic relativism was to clear the way. You undermined. You dismissed, mocked, ignored, laughed at, I’ll say a stand-in, Jerusalem. You laughed at Athens. You dismiss the bedrock foundation of American constitutionalism as racist. You say our society is built on slavery. All of those things clear the way for something else to replace it. Do we have a coherent sense of what those in the streets right now in June are trying to erect in its place? It seems to me there are a lot of demands. We see corporate America scurrying to try to placate them, try in many cases to enlist themselves in their cause, or to be seen as such. Is there a coherent package yet, or is that to come once they think they’ve got one, if not both, political parties subservient to what they want?

Daniel Mahoney:

No. There is no coherent project, but it’s a project of intellectual political and moral destruction. That’s why I mentioned Solzhenitsyn. When you see educated Russian society, members, middle class educated people, rich people, regime officials, intellectuals mouthing the slogans of nihilists, a radical culture of repudiation, as you said, you attack our religious traditions rooted in this rich tradition of logos, and ethical affirmation in scripture, and the larger religious traditions. If you reject the metaphysical truths or the practical reason inherent in Athens in our philosophical traditions, if you assault the West as an essentially culpable civilization. One of my favorite lines is from W.B. Yeats, “Come fix the accusing eye on me. I thirst for accusations.” Well, if the West was just the only truly self critical civilization in history, is ontologically condemnable, we’re talking about nihilism. We’re talking about nothingness. So they have no positive program, except self loathing. Well, if these rituals we’re looking at… Again, we haven’t reached the point of blood or official tyranny and, hopefully, we’ll never reach it, but the structure of it is so similar to that self-loathing one saw in Paris in ’68 or Dostoyevsky’s novel, or the Chinese Cultural Revolution. Somehow the idea that negation is liberating. This is so anti-political because it cannot give rise to rapport. It can only destroy, and I don’t know how this kind of indignation goes on forever. It destroys agency. It destroys dignity. It destroys the pride necessary for common life, but while it lasts, it’s a force of pure destructiveness.

Do you remember Eric Voegelin’s definition of ideology that it’s the forcible imposition of a second reality on the real world? I think that’s what we’re seeing now.

Richard Reinsch:

How does a tough-minded liberalism begin to respond?

Daniel Mahoney:

Well, a tough-minded liberalism is also a tough-minded conservatism. I wrote a book a few years ago called The Conservative Foundation For the Liberal Order. Pure liberalism has always been a problem; freedom without ends and purposes, progress without tradition. Michael Polanyi once said, “The goals of Tom Payne can only work if they’re wedded to the ideas of Edmund Burke, tradition, continuity, order, civilization.” So a liberal order, first and foremost, can only survive and be worthy of surviving if it repudiates the culture of repudiation. If it renews itself with respect for our principles of our order, which are not racist. I was appalled the other day to see a piece of Public Discourse, an otherwise fine piece by Marco Rubio, saying the American Founders believed that Blacks were three-fifths of a human being, the old canard. It was the anti-slavery North that wanted to count blacks as three-fifths for representation precisely because they didn’t want a slave-owning oligarchy to dominate the new constitutional order.

Richard Reinsch:

The men who introduced the three-fifths compromise were men from northern states who were opposed to slavery. I think it was Elbridge Gerry and James Wilson, if you read the debates. I’m not sure.

Daniel Mahoney:

Absolutely.

Richard Reinsch:

It’s incredible.

Daniel Mahoney:

By the way, you could not even find a South Carolinian in 1787 who said slavery was good, at least anyone at the Constitutional Convention or in the ratifying debates. That all developed as we know much later with people like George Fitzhugh, and John Calhoun. Yeah, but what’s going to happen is under the guise of anti-racism, a false anti-racism, a racist anti-racism, an ideological approach to things so that our past is going to be erased. For me to publicly make the argument, as Frederick Douglass did in 1852, that our constitution is a fundamentally anti-slavery document, to make the kinds of arguments that the great Abraham Lincoln, and I should also say the great Frederick Douglass, made in his Peoria Address of 1854, and the Cooper Union Address six years later, showing that in no sense was the Constitution pro-slavery. The Supreme Court was wrong in Dred Scott when they said, “The Declaration and Constitution are instruments of oppression.” They’re instruments of ordered liberty, of human dignity, and they were, as Martin Luther King still recognized in his famous speech in I have a dream in November 1963, it’s precisely because of going back to those promissory notes, the Declaration, the Constitution, the Gettysburg Address, that our political order is able to actualize our founding principles, which are principles of liberty and human dignity. I’m absolutely convinced that the new ideology will say, “I make the argument of Frederick Douglass, of Abraham Lincoln, of Martin Luther King.” I don’t mean me personally, but anyone who makes this argument, is ipso facto racist, or this is a form of violence. Do you remember Eric Voegelin’s definition of ideology that it’s the forcible imposition of a second reality on the real world? I think that’s what we’re seeing now.

Richard Reinsch:

Voegelin says you can’t ask questions.

Daniel Mahoney:

That’s right. The reason why in his probably most polemical book Science, Politics, and Agnosticism from 1959, Voegelin said that Heidegger, and Marx, Nietzsche were swindlers, he said in every case, whether it’s Nietzsche’s atheism or Marx’s atheism and revolutionism, or Heidegger’s turn to Hitler in ’33. I’ll give you an example. In part two of the Communist Manifesto, Marx is making his argument for the four abolitions, so property, family, religion, and nation, and he says, “I am not even going to respond to arguments made against my position in the name of natural right or natural justice.” He just dismisses any kind of moral or philosophical or political objection, and, of course, Marxism, which is one example of explaining that away, attributing nefarious motives to people who are simply philosophizing, searching for truth. So this is where we’re heading. We will not be able to ask questions, and we will not be able to dissent from answers that are not rooted in empiricism, and by empiricism I don’t mean positivism. I just mean the world around us, experience. We’re going to be forbidden to raise the questions or to provide dissenting answers.

Richard Reinsch:

We’ve been talking about this throughout the interview. It’s this position also of your thought is determined by who you are. You aren’t actually capable of reason, of logic, of conscience, of subjectivity. You are Dan Mahoney, middle-aged white man. You are therefore incapable of telling me what an anti-slavery regime is. You’re complicit within it.

Daniel Mahoney:

I noticed when I first started teaching in the ’80s that women who were the most influential political women in the world, Golda Meir, Margaret Thatcher, Jeanne Kirkpatrick, were not considered to be women by the hardcore feminists or their academic allies. To be a woman was an ideological category. Thomas Sowell, Glenn Loury, Shelby Steele, Robert Woodson, who by the way if there is a more noble voice for Black America, I can’t think of one, they’re not Black because they’re in some ideological category. By the way, a homosexual who is against gay marriage or a woman who is for the right to life, they don’t fit these preconceived ideological categories, so they simply are written out of the narrative. This is very, very dangerous for all sorts of reasons. It’s the attack on agency. That’s why I think this radical sociologism where people are wholly determined by race, class, and gender. You asked before where this came from. Let’s not read Shakespeare. Let’s say he is the project of the English patriarchy. He’s a white guy. “Hey, hey, ho, ho, Western culture has got to go,” as the marchers chanted as they destroyed the great books program at Stanford. How demeaning to all people, how demeaning to black America, how demeaning to free-thinking people. It just means that nobody can think. Nobody can reason. Everyone is a prisoner. By the way, why are these ideologues and activists now not prisoners of their own experiences, something they’re incapable of answering?

Civility really isn’t just, “I won’t shoot you and you won’t shoot me.” Civility is always grounded in some kind of mutual, moral consensus where we recognize the common world of reason, a common world of citizenship, a common world of mutual accountability. Without that, it’s war of all against all.

Richard Reinsch:

I think it is philosophically the move against nature. There is no nature. There is will. There’s the naming of things. There’s the determining things according to political categories, and that’s it. That, of course, immediately would shut off liberal education. What would be the point of that? Do we even have a conversation about truth, or what man could know about himself, what it means to be a human person? Why have conservative liberals, tough-minded liberals, sober liberals, whatever you want to call them, found themselves on the back foot? Did they do something wrong, not necessarily in the last two weeks, but 10 years ago, 30 years ago, 50 years ago? Your thoughts?

Daniel Mahoney:

Well, I don’t know. You probably have seen a couple of these essays that Joshua Mitchell, a very good political theorist at Georgetown, has written about the whole low culture. Josh’s argument is this is, as I said before, a toxic and angry moralism that is radically pagan in the modern sense of the term. I don’t mean Cicero and Aristotle. I mean, post Christian, anti-Christian. That means it has no room for humility, limit, or recognition of imperfection, and sense, and above all, no room for repentance or any penitential involvement. The cancel culture really says, “If you said something, it doesn’t have to be really unacceptable. It just has to be perceived today with these ever-changing quasi totalitarian standards as unacceptable.” You are written out of the human race, like the great Soviet encyclopedia of the ’30s where people would get notices saying, “Cut out the picture of so and so, or cut out this article. These people no longer exist.” Orwell has a few things to say about that in 1984. This lack of mercy, this hardening of hearts, this treating of people as if they’re not persons worthy of consideration, it all flows from the animating categories rejecting nature, personhood, and agency. A decision has been made that a person no longer belongs to the human race.

Richard Reinsch:

Yeah.

Daniel Mahoney:

By the way, I don’t want to be hyperbolic, but I think that’s more or less the spirit that animates the reckless anger of people in The New York Times newsroom or the editor at The Philadelphia Enquirer is a liberal, and pointing out that burning down buildings, and people’s homes, and livelihood is a form of violence. They matter, too, and to be dismissed for that?

Richard Reinsch:

The editor of The Philadelphia Enquirer fired for approving of the headline “Buildings Matter, Too”.

Daniel Mahoney:

Absolutely. By the way, you may have seen the headline about the progressive newspaper, one of the Carolinas, when the mob was attacking it. They said, “We’re with you. We’re with you.” It reminds me of a scene in Eugenia Ginzburg’s first great memoir about the gulag. She was a Soviet communist, but she ended up in the camps anyway. She talks about a refugee from Mussolini’s Italy who is arrested for no good reason, and he is about to be shot, and he’s yelling, “Io sono comunista!” I’m a communist!

Well, it doesn’t matter. These editors are woken up. It’s the radicalization that took two or three years in the French Revolution happening at least in a symbolic way overnight, and I think these institutions are hopeless. Now, thank God we’ve got a great independent newspaper like The Wall Street Journal.

Richard Reinsch:

They’ve been indispensable in this.

Daniel Mahoney:

Yeah, and thank God people can criticize Fox News all they want. It adds to the sum total of pluralism, and by the way, we talk about liberalism. One thing tough-minded liberals and tough-minded conservatives can agree on, all of us committed to the liberal order, in the fullest sense of the term is that pluralism is an essential good. Not a relativistic pluralism that says, “Who’s to say what’s right or wrong?” The great John Courtney Murray put it, “Where civility operates.” Civility really isn’t just, “I won’t shoot you and you won’t shoot me.” Civility is always grounded in some kind of mutual, moral consensus where we recognize the common world of reason, a common world of citizenship, a common world of mutual accountability. Without that, it’s war of all against all. I think these intellectuals accepted that premise, but it’s really kind of amazing. They accept nihilistic premises, but they think in the end justice will arise. That’s absurd.

Richard Reinsch:

You’ve written a lot about, you’ve thought about the French political thinker Raymond Aron, who had wonderful thoughts about the events in May, 1968 in Paris where they almost topple the government, and were finally stopped by General de Gaulle. Are there things we can learn from him, even though he’s 50 years ago in France for our present situation?

Daniel Mahoney:

Oh, well. Aron his wonderful book La Révolution Introuvable, the Elusive Revolution, he reproduces many of his columns from Le Figaro from May, June, July 1968. He was a one-man voice of truth. When everyone was going mad, Aron says, “Everyone played a role in ’68.” He said that, “A lot of people did a good job acting like the Jacobins, or Robespierre, upper-middle class students.” Aron says, “It pains me to see these demi-educated students praising Che Guevara, while in fact, an authentically great man like Charles de Gaulle,” and Aron had his differences with de Gaulle, but Aron says, “Well, I sort of played the role of Tocqueville, what Tocqueville had played in 1848.” The sort of voice of reason against this insane radicalization all around him, and Aron really saw it as this tyranny of ideological clichés. One of the most famous is it is forbidden to forbid. Boy, that manages to be totalitarian and nihilistic all at once, and Aron was a conservative-minded liberal. He stood up to the totalitarian intellectuals in the ’50s with his great books The Opium of the Intellectuals. He stood up for the liberal university, and for the French Republic in ’68, and he made many, many enemies. He even set up a committee to stop terrorism in the universities. So he was a man of utmost courage, and he just could not understand why people who lived in a free and prosperous society were committed to destroying it. I think he thought it was a kind of intellectual contagion, a kind of madness that simply needed to… I think Aron’s example is really good because without Aron, I think ’68 might have had a different… Without Aron or de Gaulle, ’68 may have had a different outcome because so many people had given into this ideological madness, and still in France. I mean, La Révolution Introuvable was re-released last year, but every five, 10 years when there’s a celebration of May ’68, it is hagiographical. You know?

These Maoists and terrorists, and people who intimidated, and they’re celebrated.

Richard Reinsch:

Well, they moved through the institutions, and write the scripts now.

Daniel Mahoney:

They do. They do, and my French friends always say that ’68 is the turning point when a kind of liberalism rooted in the larger arc of Western civilization really… They didn’t establish their Maoist utopia, but they institutionalized the culture of repudiation, and post structuralism, deconstructionalism, anti-Western narrative. That’s the leading import from France in the last 60 years. It’s part of our problem, too. So there’s direct connection between May ’68 and what’s going on now.

Richard Reinsch:

What makes liberal political orders weak or are they? Why is that the case? We think about an array of voices writing now on the right, even in America, also, wishing for the end of liberalism or equating liberalism with the things that are happening now, not making any distinctions. What do we make of that?

Daniel Mahoney:

Well, I think liberalism has been prone to radicalization and self-subversion. When mutual respect and civility become a debilitating relativism… Deborah Lipstadt the great critic of Holocaust Revisionism pointed out in one poll 25% of students said, “Holocaust Revisionism ought to be given a hearing because they’re afraid to say any intrinsic ideas are right and wrong,” and that goes… Things like this, liberalism, sometimes has a hard time standing up to its enemies, and so many liberal intellectuals or left-of-liberal intellectuals apologized for totalitarianism in the 20th Century, saw communism as more democratic than democracy, so there are problems, but those problems cannot be addressed by some mindless anti-bourgeois repudiation of the American founding. Even this talk about a radicalization doesn’t mean that the radicalization is inevitable or can’t be resisted.

But we need Churchillian fortitude. We need people who stand up, are courageous, who are not worried about “The herd of independent minds.” So we have a lot of conformity around now. It takes some risk.

Bob Reilly in his new book America On Trial he talks about there were American founders all the way back in the 1790s, especially Hamilton, and Adams, but also George Washington. They knew the French Revolution had nothing to do with us. They didn’t like the unreason, the false reason, the murder, and the pillaging, and the anti-Christianity. I think if we’re going to defend liberalism, we need to save it from the people who love it too much. That’s the same with my friend, Pierre Manent, that to love democracy well is to love it moderately, by which it doesn’t mean we love our political order moderately. It means this pure democracy or pure liberalism where all the contents of life: authoritative institutions can be wrecked, including the family, including religion. We’ve already wrecked the universities. Without authority, without order, without the moral capital that the Founders largely presuppose, but sometimes have earned. They all believed in rational, moral sense. They weren’t relativists. They were not enemies of the Christian religion. I think the liberalism we need to defend is it needs a place for statesmanship, for Lincoln, and Churchill, and de Gaulle. It needs a place for intellectual authority. You can’t be afraid of truth, but I’ll tell you. No good comes from condemning the American founding as part of the problem. I think as you put very nicely in your review in National Review of Bob Riley’s book, you end up agreeing with Justice Kennedy in his famous claim that American liberty is some kind of juvenile existentialism. It has no end. It’s just about anything. David French is the other extreme. He says, “The Constitution is founded on neutral principles.” No, not neutral principles, but not the syllabus of errors. We need a constitutionalism that defends liberty and human dignity, and rejects the culture of repudiation. It’s so clear to me. I don’t understand these binary distinctions between integralism and the woke rejection of the Founding.

Richard Reinsch:

I think what we’re dancing around here, too, is the weakness of a liberal republic is does it transfer and teach its tradition to the next generation? I don’t think we’ve done that for two, maybe three generations. Inevitably, that vacuum gets filled with a new account of truth, a new account of meaning, and to me when I read, say, the Catholic right is doing this, or we look at, say, The New York Times editorial board, that’s really what we’re witnessing here is a new account of truth filling a spiritual void.

Daniel Mahoney:

I agree. By the way, I have some sympathy for these Catholic traditionalists who their political and historical judgment is wrong, but they are responding to the regnant nihilism, and-

Richard Reinsch:

I agree with that.

Daniel Mahoney:

… again, they’re making the terrible mistake of conflating the principle of our political order with the present madness, and I think that’s wrong for a thousand reasons, but the renewal is going to have to involve, to use a fancy word, a dialectical reflection where we repudiate this faux liberalism and leftism, while reaffirming the deepest resources of our tradition, and the problem with this kind of position, the position of Brownson or Tocqueville or us is that it can’t be argued in two or three easy steps. It involves liberal education, civic education. Why did conservatives, why did people with good sense, why did political moderates, why did we allow the elementary and high schools to be colonized by people who teach young people that our civilization is evil, and our founding order is corrupt from the beginning? How do we expect this economic determinism on the right that thinks, “Oh, as long as the stock market’s going up and we have economic growth, let the kids learn all the nonsense. Ideas don’t have consequences.” I think there was a blindness among too many people who do love this country thinking that all that nonsense, all those race, class, gender nonsense, that doesn’t have anything to do with the real world. Yes. It does. It’s an absolute subversion of the civic order in the real world, so-

Richard Reinsch:

Well, I think, too, it was lessons looking back. It’s a willingness to look the other way because you don’t want to roll up your sleeves, and really fight on these hard battles that you have to fight over.

Daniel Mahoney:

I think that’s exactly right.

Richard Reinsch:

It was politically incorrect. I think I look back at George W. Bush’s presidency. Of course, it was subsumed by war, but very little desire to take this on, and it seems to me that was a crucial point when a lot of things were lost. That’s just my judgment.

Daniel Mahoney:

Yeah. You know it’s funny. George W. Bush now is considered to be this humane alternative to Trump. He was as freely compared to Hitler and Nazism as Trump is.

Richard Reinsch:

He was hated, reviled.

Daniel Mahoney:

Yeah, and I’m disappointed when somebody like him, he issues a statement last week, praising the protestors in the street, but not a word about the violence, and the nihilism, and the group think. It’s cheap. There’s an easy phrase for it. It’s called cheap grace, easy redemption. You know?

But we need Churchillian fortitude. We need people who stand up, are courageous, who are not worried about “The herd of independent minds.” So we have a lot of conformity around now. It takes some risk. We don’t live in a totalitarian regime that’s going to send us to the gulag.

Richard Reinsch:

Well, you might lose your job, which can be very painful.

Daniel Mahoney:

But you might lose your job.

Richard Reinsch:

You might lose your reputation.

Daniel Mahoney:

Yeah.

Richard Reinsch:

My point about just to clarify President Bush, was, more specifically, the focus on No Child Left Behind. The nationalizing of a curriculum around one metric, which would just be sort of a utility of education, and what it can prepare you to do. What the left has really been focusing on, and it’s now become very clear they’ve succeeded is not that. It’s soulful education as they deem it. Even under the Common Core standard, that was the same thing, utility. We have to become much more forthright about, I would argue, the soul, and what’s the good, and what should be read and thought?

Daniel Mahoney:

We need a recovery of soulcraft in education. Yeah. I mean, it became far too common. I think you’re right about the Bush Administration. They pushed STEM. They pushed the utilitarian view of education. They pushed sort of the standards, rather than the content of education. The chickens have come home to roost, and all the while the left was redefining what it meant to be an American. They were faulting the fundaments of our civilization, but again, this didn’t matter. This is just ideas. A presidential candidate the last go around said, “Why do people study Greek philosophy? You’re not going to get a job with that.”

Richard Reinsch:

That, too, was Rubio.

Daniel Mahoney:

That was Rubio. Yes.

Richard Reinsch:

Yeah.

Daniel Mahoney:

Yes. I didn’t mention him on purpose because I didn’t want to pick on him twice, but-

Richard Reinsch:

Well, he needs it. All right.

Daniel Mahoney:

Yeah. He needs it, but what silly stuff. You know? Conservatives need to defend authentic liberal education or true liberals need to defend authentic liberal education, liberal enquiry, and not confuse it with the imposter that has taken over the humanities, and increasingly the social sciences in the universities. Again, I don’t know if that’s going to be possible because I do already sense a terrible hardening, kind of. This is not hyperbolic. It’s a new totalitarianism in the university. People are going to get fired.

Richard Reinsch:

Yeah. Well, my sense is there has to be a shake up. It could be federal government directed. We could see some red state legislatures really wake up. It could also just be market forces. I mean, my understanding from James Hankins, a piece that ran on Law & Liberty this week, is the finances and revenue for higher education are very thin, and many universities could actually close in the next few years because of that, so that, too, would be an opening, I think.

Daniel Mahoney:

Well, I have been pretty confident with the overall response to COVID, but nonetheless, it did great damage to our smaller colleges and universities, maybe just all educational systems, and I thought colleges and universities simply out of necessity would not be able to double down on the thought control, but events have a way of intervening. No. Hankins is right, but that doesn’t mean that what’s left of American higher education won’t end up being more liberal, more coercive, more mindless. Maybe we need new universities. I don’t mean just conservative universities, but the kind of thing Warren Treadgold has written about, major effort to establish places where liberal enquiry, and not ideology dominates. That’s going to depend on a renaissance of liberalism, a true liberalism, and because conservatives can’t do it themselves. They’re going to need allies, and we’ll see if perhaps this madness doesn’t give rise to a new sobriety, a kind of recovery of the old verities that have been forgot. That’s at least the hope.

Richard Reinsch:

My hope is new political coalitions form in defense of a certain liberalism, and the good that it has to offer, and those coalitions could look very different from the ones we have now, so we don’t know.

Daniel Mahoney:

You know we don’t know. De Gaulle once said, “The future lasts a long time.” I think we have every obligation to respond to the madness around us, and by responding to it we can contribute in our small way to making sure that it doesn’t become institutionalized or instantiated in truly awful and dangerous ways, but we don’t want to overreact in the sense of saying, “Everything is finished,” because it may very well be that the American people, many of them are looking around now and saying, “What the hell is going on? This is not justice. This is not the country I want to live in.” The salvation is not going to come from the intellectual clerisy. It’s going to come from sort of with the remnant of the deliberative sense of the American people of a kind of common sense that isn’t quite dead, yet.

Richard Reinsch:

Yeah. Dan, well said. Thank you for your time, and we’ll keep doing what we do.

Daniel Mahoney:

A great pleasure, thank you, Richard.

Richard Reinsch:

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk, available at Lawliberty.org.

Is the Future Postliberal? Jun 12, 2020

Richard Reinsch:
Hello and welcome to Liberty law talk. I’m your host, Richard Reinsch today. We’re talking with Fr. Robert Sirico, founder and president of the Acton Institute. The Acton Institute is in Grand Rapids, Michigan. Fr. Sirico is also a pastor at Sacred Heart Parish, also in Grand Rapids. Fr. Sirico widely commentates on political, social, religious, economic issues, so we’re glad to have him on the program. Thank you for being here.

Fr. Robert Sirico:
I’m delighted to be with you, Richard. Thanks for having me.

Richard Reinsch:
Fr. Sirico, question for you, as you watch the unrest, the violence, it almost seems like an insurrection inside major American cities, ranging from the looting that happened on Tuesday night in New York City and Midtown Manhattan, is the long line of elegant shops there, and if you’ve walked past, were universally broken into and looted Tuesday night. Police officers were standing by, nothing. They didn’t do anything. This has happened in dozens and dozens of American cities. What comes to your mind as you watch these scenes unfold?

Fr. Robert Sirico:
Well, I think I’m like a lot of Americans. There are a whole bunch of things that come to my mind, and I think where it begins is, of course, with the scar at the founding of the United States. The American founding was basically a set of ideas that are rooted in human liberty. They’re ideas derived from the natural law. They’re not inventions of Americans, but they are something encoded in all human beings. And that is the notion of liberty, of equal dignity, of all human beings. And somehow with our founding, and I understand the historical precedent that slavery was a part of human society for eons before the American experiment; but nonetheless, in this new experiment, we had it. And I think that has left a horrendous legacy, more cultural perhaps now than legal and structural. I know that’s a point of real debate with a lot of people, but I insist that it is cultural prejudice that people have, and I think that’s manifested in what happened to Mr. Floyd and a whole list of other people, particularly black men, but also other minorities. I think in order to understand the riots, you have to kind of back up and see that these actions on the part, not just the police but on the part of our culture, give some semblance of justification for the protest. They in no way give… and for the same reasons by the way, no way give justification for the kind of violence and looting and destruction of property that we have seen in the last few days. We have to hold both of these things in tension with each other and see the common base of them, that is the violation of human rights, human dignity, and the property that you hold. Having said all of that, and I know we are just in the midst of it right now, I am very suspicious that there is a disciplined, organized group of ideologues, probably many of whom are not African American, who are exploiting this circumstance. I think we’ve seen some evidence of that already emerging thanks to the iPhone culture that we live in. I should also just mention that even here in Grand Rapids, which is relatively harmonious community, this kind of violence and the Acton Institute was in the middle of a lot of impact. They tried to break our windows. They broke windows on either side of us. They weren’t able to because our windows are pretty sturdy. We’ve seen it even locally.

Richard Reinsch:
I’ve read about the violence in Grand Rapids as well. Indianapolis, where we are, faced a severe bit as well. Let me respond though. We had riots. As you recall, in 1968, I think went into 1969, in major American cities, this coming after the Civil Rights Act, the Voting Rights Act, the Great Society. These riots happened. The Watts riots in LA, where there were active attempts to bring, particularly young black men into the economy, teenagers even into the economy. Fifty years later, we’re kind of still here with this sort of… I mean your answer sort of surprised me in a way, because I guess my thinking is at what point is this no longer a reality in America given everything that’s been done or attempted to be done? And one of the things that I note that sticks out in my mind now, Minneapolis where this started, is a progressive city. It has an incredibly progressive leadership class. It has been run by Democrats for decades, all proclaiming that they’re going to do good things, and they’ve tried to do good things. And yet, this problem happened, the riots happened. Do you ever wonder that yourself? When is enough, enough?

Fr. Robert Sirico:
Well, I think this is a complex topic, just trying to tease out some of the elements of it. I think the origin to the civil rights movement, going back well before ’64, emblemized to my mind by the Letter from the Birmingham Jail, Dr. King’s letter from Birmingham Jail, the religious leadership of the civil rights group, the call at that time of human dignity, the commitment to peaceful protest. One of the most powerful of the demonstrations of that era was a boycott, an economic withdrawal of economic power against businesses, from thinking of the buses in Memphis and the withdrawal of economic power to show that we can remove our economic support. All of these were free actions of people protesting the prejudice. What happens after that? I think ’64, ’68, even before then really, is an institutionalization of a different vision of society. And the fact that many of the civil rights leaders themselves transformed into the acceptance of this notion, that is a more state-oriented resolution to social issues rather than a harmonious economic-free resolution of these issues. I think that institutionalization, that progressive approach, which then more sent to the Saul Alinsky, even more radical forms of leftist resolution to these things, this exacerbates the problem. It sets up class warfare, racial warfare as the solution. It becomes rather than a win-win game, it’s a win-lose game. And it’s political and not religious in its orientation, not moral, now it becomes political. And that transformation, I don’t think enough people have really thought about enough to see, how that has produced what we’re seeing here and now. There could have been an ongoing resolution to this that was impeded by the interventionist state.

Richard Reinsch:
I was reading yesterday 300 black men died violent deaths in the city of Chicago in 2019 at the hands of other… They had black assailants who killed them. Which dwarfs, by orders of magnitude, those who died at the hands of Chicago Police Department, and dwarfs by orders of magnitude, those who were even unarmed, and we don’t know the facts there. We don’t protest those deaths. We don’t even mention them. But George Floyd’s death, horrific as it is in the video, and I understand the media, but that becomes everything. We have these nationwide protests… There are protests in Canada. I’m reading there’s a protest in Amsterdam today that drew thousands of people. This all, to my mind, speaks of, but now we want to use a new language, 1619 Project, intersectionality, systemic racism. That’s a term I’ve heard dozens of times in two days. And it’s almost as if, and now we’re going to remake institutions like the police a traditional institution, hierarchical institution of its very nature into what we want it to be. That concerns me going forward. I mean, I’m very concerned right now about the unrest. But when the unrest ends, and now the progressive, political, bureaucratic legal class turns the wrench even more because of systemic racism.

Fr. Robert Sirico:
I agree with you completely that all of this is the result of that kind of status presumption. What I think is very important is that believers in the free society, conservatives if you will, classical liberals, begin with the acknowledgement of the reality of racism. It seems to me that that is a given. The reality of racism isn’t lessened by the fact that blacks die at higher rates at the hands of other blacks. It doesn’t take away from the reality, the broader reality of racism in society. In fact, it may be a part of that, the erosion of the culture, particularly the culture of the family, the absence of fathers in the homes that produce all of this kind of thing. But I think we need to be the leaders in calling for the proper resolution to this, rather than leaving it at the hands of progressive who are going to only exacerbate and extend this. Because there’s a great interest on the part of politicians to have this kind of friction and this kind of division, because then they can justify the programs, the political power. And look at how they have, in effect, seduced religious leaders into becoming politicians. I mean, Jesse Jackson and Al Sharpton, they are classic examples of men who begin as ministers and end up as politicians. This is civil society versus political society.

Richard Reinsch:
Question for you. 2020 has been an interesting year, not a year that any of us I think will recall fondly.

Fr. Robert Sirico:
Lord hope.

Richard Reinsch:
We start the year with an impeachment. We then end impeachment and we go right into the corona crisis. Now the corona crisis, as far as I can tell, has been placed on the back burner, and we’re in the midst of civil insurrection. And through it all, our country is extremely divided. In fact, it, at times, seems like we cannot even speak to one another, speak to those we disagree with. Impeachment, you might expect that. That’s going to be bitter no matter what. Not so much in a pandemic. You should think we would know. We would kind of coalesce around a set of policies and approaches. And then now you would think, okay, an insurrection, we’ll call it, in major American cities, you should know what to do. You put it down. And yet, we don’t seem to know what to do or agree on what to do. And we’re divided over that now. At what point is the question, are we just two different nations in a forced marriage? Is that a question that we should ask, entertain?

Fr. Robert Sirico:
Well, it is. More than ask it, we need to answer it. We need to understand why. And it goes back well before 2020. It goes back well before the impeachment. The impeachment, the response to the pandemic, and now the civil unrest, are all extensions of a division that really is the result of that win-lose mentality that I was talking about. That is the increased politicization of society. I mean, why in the world would the threat of contagion result in political divides? I mean, when we should just kind of come together.

Richard Reinsch:
Exactly, yeah.

Fr. Robert Sirico:
But it has because our institutions of healthcare, our institutions of civil government, our institutions of medical research and the production and all of the regulation that’s attached to things like the production of masks or sanitizers, all of this has been politicized, regulated down to the minute details. Of course, you’re going to have divisions because society itself that has been eroded and the political apparatus has taken over. We think that everything that needs to be done socially has to be done through the agency of the state. And this produces more and more division because it is, what I said earlier, a win-lose situation rather than the market which is a win-win situation, where you persuade people to engage with you economically, rather than force them, coerce them, regulate them to do so.

Richard Reinsch:
Yeah. Well, I suppose maybe a more positive way of looking at this is, those of us who do believe in markets or in a freer society are posing those arguments in a powerful way such that we’re having this divide. I think in a way that there is still something in America kicking and pushing against this project that’s ongoing. It prompts a question. I know throughout your career, you’ve had involvement with American liberalism. How do you see it changing? How has it stayed the same since it really emerged as the new left in the late 1960s? What do you see as its goals now?

Fr. Robert Sirico:
I think that they have made great strides in society. I think the movements that I was involved with, and when I was involved with them, were marginal at the time. It wasn’t a step up in social status to be involved in the left-wing movements that I was associated with. It is now. They’re well-funded, well-organized. They have people well-placed throughout government. But I think-

Richard Reinsch:
Corporations even.

Fr. Robert Sirico:
… And corporations have been in quite… I mean, you have this-

Richard Reinsch:
Competing.

Fr. Robert Sirico:
Phenomenon of “woke capitalism”.

Richard Reinsch:
Yeah.

Fr. Robert Sirico:
Yes. I mean, it’s all over the place. My solution to that is education. It’s helping people to understand that these well-intended…. Because I do believe that a lot of these people, even the kids on the street, I’m not talking about the media logs who are there to intentionally create pilots who come armed and ready for it, but the kids who want to be supportive, these white kids from the suburbs who come in and break windows. That if you get into their heart, and now maybe this was a pastor speaking, they don’t want to see people discriminated against. They don’t want to see people marginalized, disrespected, but they haven’t been prepared intellectually to understand how you bring about harmony in society. They think the only way to do it is to rip everything down. That’s the easiest in the world to do. To rip things down is easy. To create… The other thing, let me say, I alluded to the violence in Grand Rapids. One of the things I don’t think has been highlighted at all in Grand Rapids at least. The riots took place last Saturday night, as we were speaking. Sunday morning, I knew that this was going on right around the Acton Institute building. Before I celebrated mass, I went downtown and surveyed the downtown area and wanted to see the Acton building, to see what had happened. As I said, the Action building really wasn’t hit very much. But you know what I saw on the streets? Hundreds, hundreds of people sweeping things up, bringing coffee, bringing pizza, taking shards of glass and throwing them in canisters and dumpsters and stuff; and that was spontaneous, that wasn’t organized. It was just a cultural sense of this city. We will function. We will clean up the mess you guys have made. And that’s the culture that we have to build once again. That’s what made America great. That’s what makes any civilization great is this unified culture where people are winning and winning together.

Richard Reinsch:
Yeah, it seems as well, there’s now a very aggressive attempt. Although, this has been a part of progressivism going back to its fathers in the late 19th and early 20th century. Woodrow Wilson obviously comes to mind. And what I mean here is this attempt to remove us or to disestablish the American founding on its own terms and to give it new terms, or evolutionary terms, progressive terms. And that now has reached to a very popular pitch in the 1619 Project. We’ve run, I mean a lot of publications like Law & Liberty have had authors comment on it. It’s been universally panned by well-regarded historians, Gordon Wood, James McPherson at Princeton. I mean, they’ve really just pulled this apart. Economists have pulled it apart and some of its claims. But the root argument is we’re built on slavery and we’re built on racism, and our economy grew so fast because of slavery. Now, this is just part of the American Project is oppression. This is sort of becoming a mainstream view, and it just sort of sparks to my mind the question of this is its own virus. And we can do our patient work at Liberty Fund at the Acton Institute, other institutions come to mind. But now, major cities are taking the 1619 Project and putting it directly into their curriculum. Of course, they have declining student enrollment, but there it is. And it’s sort of, to my mind, sparks a question. There’s great disagreement and anger at the American founding. We also see it on the right. And you and I both know about essays that have been written in a journal called First Things, founded by Father Neuhaus, actually to defend American democratic capitalism. Now, the journal seems to be turning against it or has turned against it.

Richard Reinsch:
Very significant thinkers, an endowed chair at Harvard Law, Adrian Vermeule, I can name a lot of people here, also turning against the American founding and also really against markets as well, wanting a strong administrative state, a corporate estate. This is also going on on the right, but it’s not as impactful yet. Your thoughts here on kind of what all this means and what to make of it?

Fr. Robert Sirico:
Well, I think it’s good that you’ve linked those two tendencies, these currents in American society. Because I do think, philosophically, they share a certain overlapping DNA, if you will, and it requires a certain historical amnesia to maintain their arguments. Because what we know about American slavery is that it was eroding because surprise, surprise slave labor is not as effective as free labor.

Richard Reinsch:
Yes, yes.

Fr. Robert Sirico:
It’s not as productive. It’s not as dependable or reliable. Aside from the moral arguments against slavery, the economic argument against slavery is that it impedes creativity, it represses spontaneity and the resolution of problems. Slaves don’t want to work. They’re not insightful. They’re not going to be insightful and risk. The mentality of slavery, it’s not the same thing. I don’t want to make up a moral equivalent. But if you want to make a cultural observation, the modern cultural manifestation of slavery is in the bureaucracy. People who feel like they’re drones and they’re not the entrepreneurial culture. I think this pointing at the American founding as though slavery was intrinsic to it is false. And I’m not an academic historian, I’ll leave the details to those capable folks, but what I can observe just overall is people who are going to reject the emphasis on freedom, and again, I say there was a scar because there was this contradiction. And it was the contradiction between the status mentality and the entrepreneurial mentality right at the founding. To resurrect that and to announce the founding as such because of the status mentality in the name of the status mentality is an absurdity and a very dangerous one. It is particularly galling to see what’s happening to First Things for the reason that you said with Father Neuhaus.

Richard Reinsch:
Talk about his… Because I think a lot of people, particularly these younger writers I’m seeing in their 20s, they don’t know what he was trying to do. They see it all through… He was a neo-con, and he was just a neo-con out for war and democracy promotion. And they forget the original vision.

Fr. Robert Sirico:
Right. Well, Father Neuhaus and I would have had disagreements on some of those kinds of issues, but the real-

Richard Reinsch:
But it wasn’t what he was all about. I mean, that just sort of-

Fr. Robert Sirico:
… No. I didn’t even know that it was fundamentally what he was…

Richard Reinsch:
Yeah, it was just, that’s what you hear. That’s what you hear in this sort of dismissal of that project now. And it-

Fr. Robert Sirico:
That was not what attracted me to pursue things and my friendship with Father Neuhaus. But what he was trying to do was to show the compatibility between the American founding and the Christian ideal of the free and virtuous society. When you read him, when you read Novak, when you read Weigel, what you find are continuous references to the thought of thinkers like John Courtney Murray, who was the preeminent peritus at the Second Vatican Council. This would have been-

Richard Reinsch:
’65.

Fr. Robert Sirico:
A peritus… A theological advisor who made the case in his book, We Hold These Truths. That the American founding was, in many ways, derived from natural law and compatible, rightly understood, compatible with at least Catholic social teaching. And then of course, Neuhaus brought the vibrant ecumenical and interfaith elements into that. That’s what First Things was about, and to uphold the priority of the cultural, which is what I was talking about when we’re talking about civil rights.

Richard Reinsch:
Yeah. The question, I mean, and I’ve read First Things from 1998 and 1999, all the way until a couple of years ago. Now I read it occasionally, but I used to read it cover to cover. The position now being advanced is pretty critical of markets. I rarely read… I don’t think I’ve read anything from the editor of First Things that praises the free market. It’s always criticism. And I-

Fr. Robert Sirico:
Just what has occurred to me, and I’m going to go out on the limb here because I don’t remember all the names of the personalities, but you remember First Things was founded out of the collapse of a previous journal that Neuhaus had been editing.

Richard Reinsch:
Yes.

Fr. Robert Sirico:
And that was taken over because there was some institutional-

Richard Reinsch:
Disagreement.

Fr. Robert Sirico:
… ownership by a group of people that were the Southern Agrarians, much more like this group that has taken over First Things now, than Neuhaus himself. Neuhaus was against that. And I think you’re finding this element, this modern element of the integralists once again. It’s another coup. And I had never said that publicly or really even thought about that. But as we’re talking, it occurs to me that that’s what happened back then that the founding in 1989. I remember it very well.

Richard Reinsch:
No. In fact-

Fr. Robert Sirico:
Neuhaus was locked out of his offices.

Richard Reinsch:
Yeah. No, I’ve heard that story. Yeah, that they showed up and they were locked out, and their equipment was on the street, I think.

Fr. Robert Sirico:
Right. And he turned on a dime. He turned on a dime. They reconstituted this now as First Things, and the other magazine journal just withered away, which is what’s happening now to this First Things. It’s living off of the fumes of the past.

Richard Reinsch:
The current editor of Chronicles, which is published by, I want to say the Rockford Foundation or the Rockford Institute was-

Fr. Robert Sirico:
That was the group. That was the group.

Richard Reinsch:
… That published the journal that Neuhaus left. But the current editor of Chronicles has basically said, “Things have come full circle,” in a recent piece. And I thought that was right on and that that’s sort of what you’re saying. The point here too, a woke capitalism is working here. I think there’s a lot of just… There’s a sense that the breakdown, the arguments that are around these groups of thinkers, that breakdowns in the family, breakdowns in community, all of which somehow could be explained. And it’s almost a fideistic notion. If we just reintroduce industrial jobs back into America, that’ll give us middle-class incomes and people will get married again and have children. And then with that will come religious participation and vibrant neighborhoods. This is really to skip a lot of steps and to ignore the nature of markets. And then as I’ve written, it actually doesn’t even make a lot of sense with the data. I mean, the data doesn’t even support this, apart from just the logic of free markets. But my sense here though is, what is motivating this underneath is just, it’s really largely a turn against American ideas and practices that have guided us since our founding. There’s a desire for something else.

Fr. Robert Sirico:
Well, there is. I don’t know exactly what it is the desire for, but it’s something other than what the family and the culture that protects the family and the institution of private property is all about it. It was Marx and Engels… Actually it was Engels who kind of collected a lot of Marx’s writing to produce a book called The Origin of the Family, Private Property and the State, in which they were denouncing these things. It’s the state that was against these institutions, not the market. The private property regime was the protector of the family, and can be once again.

Richard Reinsch:
Thinking now as you see American politics and economics, I struggle sometimes staying positive, what are you looking to or what gives you hope? And I know one answer to that question. But as you see these things moving forward, what comes to my mind is there really are no new ideas. We seem to be just fumbling around in sort of a loop of ideas, movements that have spanned for decades. And at some point, I think we say, we’re not creating anything in our society. We’re not building. Maybe we should change what we’re doing. We should rethink our entire approach here so we can recover our civilization. The alternative being collapse.

Fr. Robert Sirico:
Well, I do think we need the radical change in our society. The question is, what is that change? And it seems to me that if we’re going to confront the realities that are ahead of us, once we get through this period of the fear of the contagion, which is exacerbated by the centralization of government in the response to it. When we get past that, we need to ask ourselves, what is going to adapt our culture to the challenge, the ethical challenge, that’s going to be presented to us in, for instance, artificial intelligence? This technology is not going away, and this technology is not evil in itself. What we need to do is see the human person as the priority and the director of the technology. And the technology doesn’t alter nature. It simply is going to be directed by us or this kind of searching around that you’ve described, this wandering in the wilderness, so to speak. And that could become deadly dangerous. Now, if you were asking for a word of hope, it’s that those solutions that are being proposed across the board, both on the right and on the left, that center on the state is the solution to the problem will fail. There is no doubt in my mind that they will fail. They’ve always failed historically. Sparta was not as rich as Athens. North Korea is not as rich as South Korea, not as vibrant. By rich, I don’t even mean just financially, I mean, culturally. And that will stagnate. And as it stagnates, people will look for answers. And I think we can propose what the American founding derived from a more ancient understanding of human nature in society, which is the natural law.

Richard Reinsch:
Fr. Robert Sirico, thank you so much for joining us. We appreciate your time.

Fr. Robert Sirico:
Great to be with you. Thank you, Richard.

Bureaucracy, Regulation, and the Unmanly Contempt for the Constitution Jun 04, 2020

Editor’s note: This podcast was originally published on January 16, 2019.

Richard Reinsch
Today we’re talking with John Marini about his new book, Unmasking the Administrative State. John Marini is professor of political science at the University of Nevada, Reno. He is a Senior Fellow of the Claremont Institute in California, and is the author and editor of a number of books on the administrative state, including The Politics of Budget Control, The Imperial Congress, and The Progressive Revolution and Politics and Political Science. John Marini, glad to have you on the program.

John Marini:
Thank you, Richard. Happy to be here.

Richard Reinsch:
So John, I think I’ve been hearing you talk about the administrative state and reading your work about the administrative state for over a decade. So this book is, in some sense, a recapitulation of what I’ve learned from you but also I think some new thoughts and ideas as well. The title of your book is interesting, Unmasking the Administrative State. How does one unmask it? Is it not evident in Washington? We mock it, we refer to it derisively, we know its operations, and yet, it needs to be unmasked. How do we do that?

John Marini:
Well, I think the reason it’s difficult to see is because it’s so pervasive, it permeates almost every aspect of our lives. And so, the administrative state is not merely a thing, the bureaucracy, it’s a form of authority as well. It’s rational authority and it permeates not only the public sector but the large private corporations as well in the way in which organized intelligence establishes knowledge about what it is that needs to be done.And of course in the private sector, the economic sector, those structures and the bureaucratic structures that operate essentially in the same way as the public structures, when those two come together, in other words, when the private and the public sector become enmeshed in the way in which the modern administrative state has worked itself out over the last several decades, it’s very difficult to establish what is genuinely public and what is private. What is a thing that should be political and what should be a responsibility of the private world, the civil society, the institutions that were social institutions that established how it is that human beings accommodated themselves to the social problems of families, communities, associations. All of those were ways that are not political ways but ways that have established a kind of moral conditioning of human beings within those social structures.

And the administrative state has undermined the authority of those social structures all the way down to the family. So it’s to-

It’s not merely that the administrative state is these particular agencies, this part of the government that is unelected. It has permeated the social, the political. It has centralized almost every interest that exists in human life from the cultural, the religious, the scientific, the educational. All of these things now are part of the modern, rational state I think is a better term. I think Hegel’s a regional term for it. is a better way of describing what we’re up against than the administrative state. Because administration is just one part of what is done.

Richard Reinsch:
Talk about Hegel’s term and what he was trying to encapsulate with it.

John Marini:
Well, in terms of Hegel’s understanding of the modern rational state, it was going to be the rule of organized intelligence, of organized knowledge. It was the view, his view was, of course, that the rational was going to replace the natural. The end of history really meant the end of politics and the end of those things that had established the enmities that existed that prevented human beings from having and exercising what is essentially a common will, a will that establishes the moral authority of a regime.

And of course, from the point of view of the state itself, the state is a rational organization, but it is also a moral organism. He called it an organism because it’s a growing thing. What it is… It adapts human beings to time or change or progress. So you could say is that the rational state is an organism for the administration of progress. The knowledge that’s necessary to establish the solutions to the problems that human beings face was not yet manufactured in Hegel’s time. He said that he had what he thought was civil service, in other words, the knowledge workers, that class that would accommodate and provide, establish the organized intelligence to conduct the public affairs. He named that at the civil service. The term bureaucracy was not yet in use even in Germany really fully, certainly not in the way in which it has come to be understood.

From Hegel’s point of view, the rule of organized knowledge means then that there are those whose purpose is to provide the knowledge on behalf of the State, and therefore must be paid by the state, and that they will seek knowledge and not power. In other words, just to give a juxtapose, say the Hegelian view with James Madison’s view of administration. Madison would never admit that it’s possible for human beings as individuals to separate their self-interest from the other elements that animates human beings desire for power or ambition or whatever. So, Madison would have been skeptical that any people, any part of a government should be given the autonomy and the power to seek solutions to problems that are unrelated to a check upon that power on behalf of political control.

Richard Reinsch:
It sounds like what you’re articulating is something that we say and sort of a common view that the experts, the scientific expertise that they have to, as you say, manufacture knowledge and find solutions, Hegel is articulating this at a fundamental level.

John Marini:
Yeah, he is, and what he’s doing and what took time before we developed let’s say a method by which that becomes institutionalized because Hegel established the ground of the necessity for an applied science, practical science of politics. But he didn’t provide a method of how to generate it. That came about within the next, well, almost, about the time when Hegel was dying, Auguste Comte in France was giving a series of lectures from about 1829 to about 1840 that established the method of the social sciences, that detail how it is that human beings can establish a method, an empirical method whereby they can generate meaningful knowledge that is not knowledge that’s associated with metaphysical or theological knowledge. And therefore, is genuine knowledge, in other words, not subjective knowledge.

That required of course, the separation of knowledge that is empirical or factual from the opinions that are primarily values. And of course, the only meaningful knowledge and the knowledge that is genuine or objective knowledge is going to be derived from the empirical method. And of course, Comte had established what he called the queen of the sciences for human beings. He called it first social physics, subsequently called it sociology, which was going to be really the science of society.

So, rather than politics being the highest sciences as in Aristotle, or in Madison or the founders, of course, what is going to be the directing science of course is the science of society itself, sociology. So, once Comte showed how it is that knowledge of the human mind goes through these various stages, first, the theological, then the metaphysical, and finally, the positive stage of understanding, positivism becomes the method of all knowledge generated in modernity, including the law. So, positivism ultimately establishes the authority of the law, which means that science has replaced both metaphysical knowledge or philosophic knowledge derived from theoretical metaphysics, and religious knowledge.

So, one could say, by the end of the 19th century, the authority of religion and philosophy waned and the authority of science waxed. It established the public meaning of everything that was going to be meaningful.

Richard Reinsch:
Let me ask you this. What you are articulating then is this rational control of society through expertise, through the ability to generate so called solutions to social problems, to the social questions. This replaces politics. Let me sort of bring it down maybe to more of a pragmatic American level. Is the administrative state, though, not really, is it not an inevitability within a modern society of so many interests, needs, desires. There has to be a way to meet those in some way through some sort of, rational body of people providing licenses, certifications, things like that. I mean, are these two, so, yeah.

John Marini:
I think that there were always ways. Administration is as old as government. Every kind of government in all times has the problem of establishing an administrative apparatus. The question of administration, of course, is what establishes its authority and what’s its relationship to politics? In the American founding, just read Federalist number 72 or read Federalist number 68, where Hamilton or, particularly Hamilton talks about administration. Administration is always understood in terms of what they would have considered the faculty of practical reason or prudence.

You’re asking a question that presupposes that technical knowledge is required for the things that we do. But why is that the case? You’ve always had social institutions in which those activities were always done in an orderly way. I’m not saying that we’re not required to use human reason, we’re just required to use practical reason rather than theoretical reason. The problem with the applied sciences that becomes the social sciences, those are a form of abstract theoretical reasoning that try to provide solutions to problems that are practical problems and are intelligible in a common-sensical way or a reasonable way prudentially.

What social science and what Comte did, and what the Hegelian thought has done, his philosophy of history has done, has destroyed the element of prudence in modern political life. What is the role of prudence? I don’t blame Hegel, I think Comte is really to blame for this. That’s another more theoretical question. Let me put it this way, because I think I always find, my students have a hard time understanding this too. They think that rationality, when they speak about rationality, they think of rationality oftentimes in the way that we would think about reason. The human capacity for reason or rationality is a natural human faculty, if we are to believe the philosophic tradition of the West.

And so, reason and intellection is a part of human nature. And of course, it’s something that human beings have and have always utilized ever since they were capable of intellecting and establishing ideas, whether metaphysically through a metaphysical reason or theoretical reason, or in terms of practical reason, that is trying to accommodate how it is that we understand the abstract ideas in terms of concrete situations, because the abstractions Of course, have to be accommodated or approximated, and they have to be understood. So, always you had a problem of accommodating ideas in a way that required practical reason or prudence.

I’ll give you one example. When Lincoln dealt with the problem of slavery during the Civil War, unlike the abolitionists who understood slavery in Comtean ways, in a Comtean way, as if that moral evil established the practical way of dealing with it. And Lincoln knew that was not the way you could possibly deal with slavery in America. And his prudential way of understanding slavery, of course, was trying to make the principle of equality intelligible, as the ground by which to condemn slavery and make that possible politically, which required of course getting the consent of the governed. So, Lincoln’s use of prudence is a perfect example of practical reason in operation that made it possible to actually deal with slavery in a way that had the abolitionist view that moral indignation that was established without the necessity of thinking about this politically and prudentially would probably never have been able to succeed in America.

I think that we have in the 20th century, turned over much of our judgment about politics to those who have purported knowledge that derives from abstractions, from theories that are-

… that are unrelated really to whether or not these things work practically. That’s why it’s so hard to ever find social science theories that the theorists themselves condemn as saying, well, no, it doesn’t work. Because the beauty of it is always in the theory. They always have an excuse as to why it doesn’t work. Well, we didn’t get enough money or this or that or whatever.

Richard Reinsch:
You say social science replaces practical reason. By social science, you mean that there is, those who espouse it say, there is a technique in this time, in these circumstances that could solve this problem, if we have the right people, the right amount of resources, etc, etc?

John Marini:
The social sciences establish a method by which to generate knowledge. That knowledge is the empirical method of establishing a hypothesis and testing it scientifically. The hypotheses that they create, of course, then, the truth of a proposition, the truth of the method is established in the way in which the hypothesis is established and whether or not it can be falsified or not. In other words, it’s the method itself that reveals the reality of what it is that one is trying to study.

The empirical method, in other words, says that the only genuine or meaningful knowledge is knowledge derived from this scientific method. It can’t be knowledge derived from the abstractions of philosophy or religion, which had for so many thousands of years tried to deal with these moral problems that they had understood as moral problems, and never were able to solve. Because when you think about what the social sciences in their origins purported to be able to do is to solve every human problem through the use of science in a manner in which it could never have been done through philosophy or religion.

Richard Reinsch:
You’re suggesting or arguing the way we should think about the administrative state in terms of [crosstalk 00:19:20] they can’t achieve?

John Marini:
Yeah. I think what you have to understand is, so much of our educated class that comes to become part of the administrative state, their knowledge is derived from a specialized area of study. And not from the practical activity of the things that actually, or the experience of the things that actually, that they have to deal with. Let’s take foreign policy. When somebody is dealing in the area of foreign policy and has a great deal of experience, practical experience in it, that’s a form of knowledge that’s very useful in understanding that problem. Yet you have, when you study that in the university, you’ll also get a way of thinking about these things, these things abstractly. It’s not developed through the experience of it, but through the way in which the theoretical character of the phenomenon is revealed as the reality of it.

My question about the modern administrative state is whether or not the method of science actually makes it possible to discern reality or whether it distorts reality. The goal I think of understanding something is to understand the reality of it. And the way in which humans normally understand reality is through the senses that they have, of which of course the sense that makes sense of the senses is the common sense.

What experience does is related to how the older view of prudence would suggest that if you want somebody to help you understand this problem, you should get somebody that has had a long experience of dealing with that particular problem. But you notice how many of the young people that go to Washington, all they have is the knowledge they got from their university education. And yet, their expectation is that they have some kind of genuine knowledge about politics. I ask the question, is that genuine knowledge? I don’t think it is to tell you the truth.

Richard Reinsch:
They’re going to make a life in the bureaucracy and the Securities Exchange Commission and the Treasury Department.

John Marini:
Of course, of course.

Richard Reinsch:
And they will develop the expertise and the knowledge and the impartiality to [inaudible 00:22:03]. Let me ask you this question, how does the administrative state shape government, federal government, but also, and you write about the book also, state government, and also sort of the very diverse and local interest of our country? And I’m thinking in particular, what type of Congress do we get? What type of politics do we get? How does the sort of administration change who we are as a country?

John Marini:
Well, I think what happens is once you centralize the policymaking process in Washington, what you do then, of course, the only error in which decision making is truly important is in Washington. In other words, before, say probably up until the mid 60s in America, you had a relatively dynamic state and local political process whereby other interests that were decentralized, interests that were accommodated at the state and local levels could be accommodated more effectively politically. Because what happens when you create an administrative state or a centralized administration, what happens is all of the important decisions are made at the center. And so, everybody is forced to organize itself as an interest, as a petitioner in a certain way.

And that’s true of both public and private forces in the country. So it’s not only the economic and the social and the scientific and the educational interests that mobilize and create lobbyists in Washington. It’s also the state governments, the mayors, the governors, all have their organizations that go to Washington and become lobbyists. The question that I was trying to get to in the earlier discussion is, so much of the way in which these questions are posed, the way the dilemmas of how to manufacture knowledge about these things, is no longer in the political realm. It’s put into the hands of those who supposedly have the expertise in terms of dealing with that particular situation.

Richard Reinsch:
Reading your book, it’s interesting, we hear particularly from conservatives, classical liberals, why doesn’t Congress do anything anymore? It seems to be this rather impotent helpless branch of government. One manifestation of this is the budget process, which has essentially been dead now for well over a decade and we have, as somebody said, we have government by resolution. They take one vote on one budgetary number to fund the entire federal government and you no longer have debates over how to fund certain departments and agencies. I suppose as I’m reading your book, and I’m thinking, Congress doesn’t do anything anymore because it no longer understands itself to be a national legislative body. And at the level of budgeting, and I think this is in part related to the administrative state, most of the budget is off the books, or not off the books, but, it’s on autopilot.

And so in a way, the administrative state and Congress is a part of this, it’s created it. And it sees itself as you write throughout the book, sees itself as a way to kind of curry favor, but no longer sees itself as a deliberative policymaking body. Maybe talk about that too because it seems to me [inaudible 00:26:00]

John Marini:
Well, I think what that means is that when you have that process that reveals itself in the necessity of having only a few leaders decide what it is in the budget that’s going to be retained as the final budget, what you’re really saying is that the budget has already been created by the bureaucracy. And what you’ve got at the end of the process is you’ve got just a few leaders. You’ve got the president and a few of his advisers. You got the senate majority leader and a few of us advisor, and the Speaker of the House and a few of their advisors as those who say, this has got to be what the final budget is. And then the members simply have to acquiesce or close to government debt.

What that means, though, is that the bureaucracy has established a budget, and without a great deal of oversight. You see, the problem with the republicans since the ’90s is that they’re not even very good at oversight anymore. And by centralizing, when they had control, they weren’t as good as the democrats were in the ’70s and ’80s at controlling the bureaucracy through the uses of congressional power because that required decentralizing the power of the legislative body and giving a good deal of power to committee and subcommittee chairs over certain elements of the bureaucracy.

When the Republicans took control in ’94, they wanted to try to get rid of the administrative state in a certain way or lessen its influence. Newt Gingrich thought he had to do that by centralizing power in the speaker. And that meant of course making the legislative branch something akin to a parliamentary system, except you had a president. And of course, in the way in which Congress and the President interacted in the ’90s, particularly with that closing of the government under Clinton, the republicans lost that battle.

But what the democrats learned and the Clinton administration revealed was that before in the ’60s and ’70s, Congress really dominated in terms of how the administrative state performed. But after the ’90s, what Clinton realized, when he said the era of big government is over, I think he meant it. What he really meant though was, now is the era of big administration from the executive side. The executive was always a foe in the earlier period. Nixon and Reagan were foes of the administrative state. The Congress was the defender of the administrative state. Once the executive realized that they could direct the administrative state from the executive branch through executive administrative orders and signing statements and all the various ways that you could use the administrative power of the presidency, of course, then the executive branch became a central player in the administrative process in a way in which it had not been prior.

And so, that too made it a lot more difficult. What Congress ended up doing, of course, was having to delegate more and more power to the executive branch. And in doing that, when the administrative state was expanding, in doing that, you have to give discretion to the executive, because you can’t administer these things directly from the legislative branch. The best you could do is what the democrats were doing in the ’70s and ’80s. And I don’t say I’m in favor of this, but I’m saying if you’re going to have an administrative state, it’s better that Congress have some control, and I mean Congress has a body have some control over the bureaucracy.

But you can see in our time, the bureaucrats don’t even fear Congress anymore. Just go back and look at some of those congressional hearings in the ’60s or ’70s or any earlier type, and see how the bureaucrats look at Congress and how they act before Congress compared to, say, any of the recent ones. They’re just completely arrogant and contemptuous of Congress. Maybe with the democrats in power, it might change a little bit in the house. I don’t know, but I doubt it.

Richard Reinsch:
You have this distinction too, you talk about administration versus lawmaking. And you say administration is inherently, must be partial, detailed, touch local interests, and that Congress naturally sort of would support that, and would bring these sorts of, all these types of interest to the administrative state. And as you were suggesting just now the executive was more inclined to think nationally. These things have sort of merged. But it also suggests too the administrative state truly by having the executive branch and the congressional branch, truly controls the country, I think.

John Marini:
I think the problem with the way in which Congress has given up it’s deliberative capability. I mean, when you talk about lawmaking, what you’re really talking about is deliberation that culminates in the accommodation of the various interests through the lawmaking process. So, deliberation culminates in lawmaking. But if Congress delegates its authority to specialized bodies, of course, the deliberation is replaced by supposedly expert administration.

The problem of politics, there’s no way of getting around the fundamental problem of politics, and that is how to establish a common good. Now the American Constitution does provide that each of the branches try to understand the common good, both from the perspective of the nation and from the perspective of their constitutional role. So, the Congress of course not only has a duty to look out for the common good of the country. It also has the constitutional duty to protect its own institutional prerogatives. So Congress functions on behalf of a good that is in a certain way intentioned with the good of the executive branch. But those two both have a duty of trying to establish a common good of all of the nation as a whole. All of this is impossible. It’s not possible to speak about or pursue or even articulate a common good anymore in American politics as far as I can tell, in the absence of war.

Richard Reinsch:
Also it seems, the administrative state also is able to, and you have this concept, use this term in the book, or maybe you’re quoting a political scientist, the idea of the unfinished law. The way I read that is, Congress knows it could not really secure passage of a law or a massive package of reforms if it were to spell out everything in advance. It sort of passes as this general law that, general meaning without details, and passes it over to the administrative state. But that in a way is a subversion of the governed, and things could never happen which, you saw this sort of, I thought that was interesting with Obamacare is, and Nancy Pelosi kind of famously alluded to this, we have to pass it to find out what’s in it.

John Marini:
Oh, of course. That was absolutely true.

Richard Reinsch:
Certain things came to light and people revolted, like, famously what Sarah Palin referred to as the death panel, which has never been implemented, as far as I’m concerned. The consumer protection, or what is it the, this board of physicians that was going to determine expenditures for the country. Things like that, it’s just sort of interesting to see what comes out of-

John Marini:
Well, the problem is, look, when you do that, the reason why they don’t pass laws, of course is you’re right, you can’t get an agreement in a body like the legislative body as to how to actually pass a general law that applies in a manner that would be acceptable to a majority of those in Congress. It’s very difficult to pass. General laws have to be laws that fall equally on everyone. What you do when you delegate authority, you’re really giving, you have to allow whoever is given the authority, the discretion then to determine how it is that the problem that you want solved is going to be solved. And what does really is it creates the conditions whereby those who are governed by these laws, become conspirators really with the people who are regulators. This was true all the way back from the very beginning, when they tried to do it with the railroads, with the Interstate Commerce Commission.

When you particularize an element of the policy arena, and you put several forces in a symbiotic relationship with one another, regulator or regulated, they have more in common with each other than they do with the whole. And so they learn to accommodate each other in a way that makes it impossible to establish a common good out of that kind of activity, the exact opposite of what you would want because what you’re doing is you’re establishing privilege. You’re creating privilege.

Richard Reinsch:
Players game the system. Repeat players learn how to game a system. The thinking here also, so this sort of all kind of leads to a question of, what could lead Congress to get its act together, to reassert itself, and the only answer I can come up with is a sea change in our politics. So let’s talk about Donald Trump, President Donald Trump. You wrote favorably of his candidacy, you’re one of the few. And you’ve written a lot of interesting things since his presidency. Talk about the relationship between the operation of the administrative state and Donald Trump and how, as I’ve read you it, it’s impossible to think about the rise of Donald Trump without the administrative state.

John Marini:
Well, I think it is partly because of the way in which he came on the scene. He came on the scene completely outside the political sphere, completely outside the policy arena sphere of anyone who would be a serious candidate for the presidency. In other words, if the knowledge that he had of it was not derived from the kind of knowledge that is typically thought to be useful knowledge in politics, he didn’t have a PhD or a law degree law or any of those degrees that usually prepare you for a political life.

What made me think about him in a different way was that his demeanor was the demeanor of a political man who understood politics common-sensically. In other words, he understood that his campaign not in terms of turning it over to those specialized in running campaigns. I mean, he used technical people when he had to. But the grand strategy of his appeal was pretty simple, and it was, it was tied to what he viewed the political purpose of an election is, to go to the people, present what it is you want. And when you went and tried to actually put that into effect.

So many of the elections of our time, certainly since Reagan, who was controversial because he did try to do that, but most of them, they run with a view, this is what you have to say to win. And then when you win, you ignore how it is that you won. You don’t have any obligation really to fulfill the promises that you make to the electorate. So in a way, you’ve made the electorate superfluous. All you do is you break the electorate down into groups, you establish ways of appealing to groups, you keep the country divided in terms of groups, and you never really have to establish any kind of ground that would link the governed to those who hold the office. When the people get the offices, they tend to do what they want, and they’re only useful in the sense that the organized interests have access to them.

I think we have to admit that America has done a very good job, and much of the rest of the world probably at accommodating the organized interests at the center. And maybe the next fight over the next decades will be whether this is a global center or whether it’s centers that are established in national capitals. But you could say that American organized interests are well served by the American government. They’re well served with access to Washington, they’re well served with being accommodated by every element of the American government, from the legislature to the executive branch, to the courts, to the bureaucracy.

It’s a government in which the established players have a good situation. And I think they don’t want that situation disturbed. They have been oblivious really to the reality of American politics over the last several decades. I think what really precipitated the the crisis that Donald Trump comes to try to address is the I think mismanagement of American politics after the end of the Cold War, because it became much more difficult then for them to even understand what their offices were on behalf of, because no American president or no American office holder could ever think about the world in the way in which they have done since the end of the Cold War as if the national offices, the obligation to the Constitution or the limits imposed by the nation state were almost completely ignored.

So, just what was radical in a certain way about Trump was his defense of the nation. It was in the defense of borders, all the defensive citizenship, all of those things that are attributes of the sovereignty of the people that had been, in a sense, just completely overlooked by the elites, and who have overlooked all of the social turmoil that resulted in the way in which we accommodated the end of the Cold War by allowing American companies to profit abroad from cheap labor and make huge fortunes in America without even using their capital on behalf of the good in America. Whatever you say about the robber barons or the so called wealthy of the 19th and early 20th century, they benefited their country as well as themselves, whereas you can see that the wealthy elite in America now don’t even have that necessity imposed on them, that their wealth be used on behalf of the good of their own country.

So all of these things were ways in which I think Trump knowingly or unknowingly seemed instinctively to be able to figure out that these are problems that can be solved and can be solved differently. Dogmas like-

Richard Reinsch:
I was going to say, it seems in an immediate sense too, Donald Trump most effectively responded, and part of this was sort of his brutal language but to the way that Barrack Obama used the administrative state. Not that presidents since its creation have not used it, but Barrack Obama seemed to be willing to play in almost a Carl Schmittian political way with the administrative state to punish opponents. I think of the contraceptive mandate, immigration, subverting welfare reform, all these sorts, the ways in which, there’s several more that come to mind, but it was almost like he was deliberately saying too his opponents, I’m going to rub your face and the fact that you lost to me. And that as we know psychologically, politically, did not go over well. But yet, what conservative politician was really responding to it?

John Marini:
Well, I don’t think any were, but I think the biggest problem that Trump had, and this is a problem that I have been also arguing about over the last 40 years, and that is, of course, who shapes public opinion in America. The elites that shape public opinion are the same elites that are the defenders of the administrative state. They are the professional classes, and the professional classes and the intellectuals really are those who establish what is authoritative public opinion.

And public opinion has, in a certain way, responded to the forces of political correctness that made it very difficult to try to appeal in the way in which Trump did without taking on the press, without taking on that media, that medium between the people and the office holders. Whoever directs how it is or what it is that’s permissible to talk about in election is already ruling the country, right? They’re already in charge of what you can say and how you can appeal. No president, no candidate for the office has been willing to take on that force.

Now, others presidents prior didn’t have to do it because it wasn’t as clear as it is in Trump’s time. But it was very clear that Nixon understood the importance of a hostile press. Reagan understood it. It wasn’t as uniformly hostile then to the things that somebody who’s opposed to the administrative state would be in our time. But it clearly was something that is very hard to know how to fight. How do you come into the political arena that has already established the authorities. These are the authorities, the elites that determine what is respectable in political or public life. And Trump comes along and he basically says none of this is respectable in my view.

And here’s a guy who has no political office. He comes to be understood and he’s identified not by his political persona, but by his persona, his private personal persona. And so, the objection to Trump that many had right at the beginning, which were private, have persisted because he’s not judged by politics in the way in which most of the people that behaved as Trump behaved in their private life, never had their politics judged by their private life, the other way around. Clinton’s private life was judged by the understanding of him politically. And yet, with Trump, it’s the opposite, right up to now. Even after two years of doing something, those people who judge Trump right from the beginning personally, privately, in terms of what they perceive as his character, still do it. They can’t disassociate that.

And yet, when you think about Trump or you think about how American politics established the way we understand somebody, if you think that every president, if you judge them by the partisan character of the election, just think of how Jefferson and Adams would be understood in the election of 1800 if that was how you did it. It’s very hard to judge political people by partisan election because everything that is, and so, one of the great difficulties is Trump is, how do you judge the guy? How do you judge him? We live in a time when character has very little meaning in the old sense of that term because character presupposes the ability to distinguish vices and virtues.

Richard Reinsch:
Well, and hence the authorities you were talking about. So how do you judge someone? How committed are you at fighting climate change? How committed are you-

John Marini:
Sure, sure, all of that.

Richard Reinsch:
How committed are you to this group of politics, identities, all this sort of business. And Trump makes none of the right moves in that regard. Trump could help himself though I think you would agree with me with tone on many occasions.

John Marini:
No, I agree.

Richard Reinsch:
Maybe to tie in your analysis globally, and you kind of alluded to that earlier, if we think about, I think today is the first day of the term of the new Brazilian President, Bolsonaro. You’ve got nationalist parties throughout Europe. There’s widespread concern of, as I’ve been reading about, we’ve gotten May European Parliament elections coming up and the nationalist parties are posed to do incredibly well. It is as if the knowledge class as it exists and our leading centers of power, our leading countries is no longer perceived given the deference it would receive because it doesn’t deliver anymore. It doesn’t deliver [inaudible 00:50:10]. This seems to be all coming true.

There’s already the suggestion, I mean, it’s being written that, you think about Brexit and the way in which I think it’s fair to say, those in authority in Britain tried to negotiate the Brexit they wanted, not what voters thought they were getting. And already, but it’s sort of like, so that’s been rejected I think, that negotiation May wanted. So now it seems to be, the prospect will be a no deal Brexit. And it seems to be increasingly Britain is coming to the view or enough of the Conservative Party is coming to the view, we’ll take our chances with that. To me, it’s all sort of a slow crisis in confidence, but we don’t know what the resolution will be.

John Marini:
Part of the problem of the administrative state is that it doesn’t necessarily seek solutions as much as it wants to manage problems. And of course, Burnham was right, this managerial revolution, when you look at our foreign policy, how hard it is for a president, let’s say like Trump, who wants to get troops out of Syria or Afghanistan, when those policies were made, whether 17 years ago when we decided, you never get to the point where you say, is this a success or is this a failure? Because when you manage a problem, you manage it through every phase of everything. You just keep managing it. That’s what you’re talking about, that class that claims to have this knowledge that allows them to manage a situation. People are doubting that that’s sound.

That is not sound policy after a while that you just keep hundreds and thousands of people and hundreds of bases around the world that America has just because we have this large class of people in all of these institutions, these institutions, these organizations, these rational structures who want to manage these problems. And of course, one would say, well, we’d be happy to have you to manage them if they have a successful conclusion. But at a certain point, you’ve got to draw the line and say these things do not work. I think it’s true, it’s going to be, here’s my fundamental, I think the great dilemma of constitutionalism versus the administrative state is that it’s impossible to have an administrative state or a managed state that is compatible with consent of the governed or political rules.

In other words, you can have a rational or administrative state, and that state can provide for the needs of the people in many ways and can accommodate those needs. But it can’t accommodate the possibility of people participating in their own self-rule. At a certain point, if people want to rule themselves, they’re going to have to deal with these kinds of questions that because the modern state, the global state or the nation state or the centralized state, the rational state, whatever you want to call it, has become so pervasive globally, that these problems are beginning to reveal themselves in a way in which it was very hard to detect say 40 or 50 years ago. When I started writing this, we didn’t even use the term administrative state. I use Tocqueville’s term, centralized administration. That’s how I tried to understand this phenomenon right when it was just starting to emerge as a problem because America’s administrative state is not that old. We’re the last country really because it doesn’t sit well with the Constitution.

Richard Reinsch:
Well, John, on those thoughts, we’ll bring it to an end. John Marini, thank you so much for discussing your book, Unmasking the Administrative State.

John Marini:
Okay, thank you, Richard.

Richard Reinsch:
This is your host, Richard Reinsch, and you have been listening to a podcast that can be found at Libertylawsite.org, where you can subscribe, comment, and find other episodes and links related to today’s conversation. Our email address is lal@libertyfund.org.

America in the Dock May 15, 2020

Richard Reinsch:
Welcome to Liberty Law Talk, I’m your host Richard Reinsch. Today, we’re talking with a special guest who’s returning to Liberty Law Talk, Robert Reilly. Robert Reilly is a man of many talents, many interests, he’s done a lot of wonderful things. He’s served in government for over two decades, special assistant to the President, and director of the Voice of America. He was senior advisor for information strategy to the Secretary of Defense, and he’s taught at the National Defense University. He’s the author of a number of books and essays, including the award-winning book, The Closing of the Muslim Mind. He is also a Viennese Waltzer. And, he told me one time in his earlier life, he was a stage actor. Was it a Shakespearean stage actor, I think?

So Robert, we are glad to welcome you. Last time, we discussed the end of ISIS. Now, we will talk about your new book, America on Trial: A Defense of the Founding. Welcome.

Robert Reilly:
Great, Richard. Thank you for doing this.

Richard Reinsch:
So Robert, thinking about the title of this book, America on Trial. America has been on trial throughout it’s history, it’s particularly been on trial the last 50 years with the new left, rejecting its claims, and recently with the 1619 Project, insisting that all of America is just a footnote to slavery, so this has been going on for quite a while.

Why, specifically, did you write this book? What are the charges you see being leveled against the American founding?

Robert Reilly:
Well, I wrote this book because the very people who should be defending the principles of the American founding are attacking it. And some of those people might be known as conservative Christians, Catholics, and so forth, who should be the new Michael Novaks, who should be praising the principles of the American founding within the context of Judaeo-Christian civilization, Greek philosophy, and its noble lineage.

I believe it’s the dimensions of the catastrophe today that lead people, almost desperately, in search of a cause of it. Who did this to us, who’s responsible for it? They’ve arrived at this peculiar notion that the American founding did it to us, that it was a poison pill with a time release formula.

They’re not doing that, and the reason I think they’re not is because they need to answer the question, whose responsible? Who put us in the degraded moral condition in which the United States exists today, with widespread pornography, a flood of drugs, the dissolution of the family, same sex marriage? Now, the transgender nonsense. But, where has this come from, and why have we so largely succumbed to it? To the point that we’ve had Supreme Court decisions saying some of these things are guaranteed by the Constitution?

Richard Reinsch:
Guaranteed by the word liberty, in the due process clause of the 14th Amendment, specifically.

Robert Reilly:
Well, and of course, by what Justice Anthony Kennedy called the autonomy of the individual, which is not something that is found in any of our founding documents, but fabricated by him. And then, of course for the legalization of same sex marriages.

Now, the critics of the American founding on the Christian right are, basically, agreeing with Justice Kennedy, saying he’s right, the American founding was the product of a radical enlightenment thinking about the autonomy of the individual, and the perfectibility of the human being. Both of which notions are inimical to Christianity as it was practiced at that time, in the 18th Century, and indeed, is inimical to it today.

I believe it’s the dimensions of the catastrophe today that lead people, almost desperately, in search of a cause of it. Who did this to us, who’s responsible for it? They’ve arrived at this peculiar notion that the American founding did it to us, that it was a poison pill with a time release formula. And, as we become less and less a Christian country, we conform more and more to these principles of radical enlightenment ideology.

Richard Reinsch:
What specifically is their claim, that in the American founding there are these principles of an unencumbered individualism? What do they cite, what do they list for that evidence?

Robert Reilly:
Well, that’s one of the interesting things. When I read their arguments in order to rebut them, they have very little to offer in textual evidence from the founding. The way they read the Declaration of Independence, and the way they read parts of the Federalist Papers are, I tried to show, completely wrongheaded. They misunderstand these texts, they get it wrong.

Now, why do they do that so consistently? It’s because they’re looking through the wrong prism, and therefore they see the wrong thing. The prism is, basically, Hobbes, it’s a Hobbesian founding, and it is in this way. They take John Locke to be the primary influence on the founding, and of course, Locke was a big influence, and was mentioned from the pulpit in the state legislatures with frequency, he was broadly read. Now, they contend that John Locke was simply Thomas Hobbes with a smiley face. He was just a nicer version of Hobbes, with the same Hobbesian principles obtained in him, and therefore, leeched into the American founding through John Locke, and that’s why we are approximating a Hobbesian state today

Richard Reinsch:
When you say Hobbes with a smiley face, can you describe that more for us?

Robert Reilly:
Well, it’s that they would say the idea of a contract to which man consents in the foundation of a similar political order is based on nothing other than his will.

Richard Reinsch:
Okay.

Robert Reilly:
That it makes the will primary in political order, and it is not geared to any natural law or natural right. Even though those terms are used, they’re evacuated of their meaning. If you just strip those away, you see what’s really there, which is the Primacy of the Will.

What I try to show in my book is that those statements of Locke are grounded in a great tradition. The first tradition in which it’s grounded most immediately is the thought of Thomas Hooker, and his laws of ecclesiastical policy. Hooker, as you know, was a powerful 16th Century thinker, he was a priest, and he was the first theologian of the Anglican church. What Hooker was facing was the radical Puritan thought at the time, which was against human laws, thought that the laws on England should be abolished, and we should be ruled only by the Bible.

By the way, when you translate the Primacy of the Will politically, you ineluctably get Hobbes’ Leviathan. That’s what Hobbes does, he shows us what that means in a political order of absolute power of the Leviathan. But, that’s not what you get from Locke, you get an entirely different kind of democratic Constitutional order, based on the equality of all men, representation, the requirement of consent, and the right to revolution, the right to tyrannicide. All of these things, of course, aren’t present in Hobbes.

Richard Reinsch:
You also make the point in the book … I mean, I can find certain disturbing passages in Locke, that I think are nominalist, or seem to be admitting of, let’s say, certain individualistic tendencies. But, you make the point, which I think is well taken, that the founders read and used Locke as statesmen, themselves. They used him in a political constitutional sense of independence and limited government, not in a full anthropological, theological, epistemological manner that is alleged by thinkers like Michael Hanby or Patrick Deneen.

Robert Reilly:
That’s right. This was not an adoption of Locke’s epistemology and his letter on human understanding, it’s his second discourse on government. They took from Locke his very powerful arguments against the divine right of kings, and the absolute state.

He wrote against this, quite powerfully, and did so by resuscitating both Aristotle and Thomas Aquinas, particularly the Medieval articulation of the limits of political power, and the equality of men has a right to consent in representation, et cetera., and the respective spiritual and political realms, which are not coterminous. It’s hearkening back to the two swords teaching, that you give to feast the things that are Caesar’s, and to God the things that are God’s, which had been instantiated so completely in the Middle Ages. So, Hooker saved those things, let’s say he saved the reformation from itself by using Aristotle and Aquinas against the radical Puritan thinking. Locke quoted Hooker more often than anyone, regarding these basic things.

Richard Reinsch:
You note in the book, too, you said on this constitutional thinking, saying constitutional in a capacious sense, across the centuries of unwritten tradition that forms the American founding. You situate Locke, Hooker, Robert Bellarmine, 16th Century Jesuit, Francisco Suarez, another 16th Century Jesuit. These are thinkers who are, in many ways, in touch with a tradition that stretches across the centuries, urging the King is under law, basic notions of political consent, ideas of right of revolution, potentially. You show that this actually forms, or is recovered by, the American founding. The American founding is not, as you say, Hobbes with a smiley face, or individualism run amok, it’s a part of a grand tradition.

Robert Reilly:
Yes, absolutely. You will find articulations of these basic principles in those thinkers, that they come right out of the American founding.

Richard Reinsch:
You listed them. You have pages where you list parts of the Declaration, and how they mirror things in the Virginia Declaration of Rights, and how they mirror what Bellarmine, and Suarez, and Hooker were saying earlier. I mean, I thought that was incredible.

Robert Reilly:
Yes. They sound like paraphrases of each other, don’t they?

Richard Reinsch:
Yes, definitely.

Robert Reilly:
Then, also let’s not forget Algernon Sidney, and his discourses on government. He, too, relied on Hooker a great deal, but he also acknowledged Suarez and Bellarmine. The reason he, more or less, had to do that is that the book defending the divine right of kings, written by Robert Filmer called Patriarcha, was basically addressed to the arguments made by Bellarmine and Suarez, and it was an attempt at refutation of them. Filmer was an honest enough writer that he would take large chunks out of Bellarmine and say, “Here’s what the schoolmen say, the scholastics. And, here’s what I say, and here’s what Suarez says.” He quotes Bellarmine the most, Suarez the second.

When Sydney’s writing his refutation of Patriarcha, he grudgingly acknowledges Bellarmine, a hard thing for a Protestant to say, “This Catholic Cardinal’s got it right.” And he says, “But Bellarmine really is doing nothing but expressing the commonsense of mankind.” Which is no slight on Bellarmine, because that’s what Bellarmine himself says he’s doing. Because they’re all appealing to the same tradition of natural law as against the supremacy, the absolute supremacy of the state, whether it’s articulated in a totally secular way, as it was with Locke, or in the Divine Right of Kings way, as it was by James the First, or Robert Filmer.

The thing is, the absolute state as it appeared in the 17th Century, was something new. It was totally alien to the entire Medieval mindset, as it denied all the basic constitutional principles which had been developed at that time. As you just mentioned a little earlier, Richard, indeed my book makes the case that the American founding is a return to those principles, it’s a restoration of them. So, you can’t see it just simply as a creature of the radical enlightenment, when it is grounded in this great tradition.

What are the ideas that make the American founding conceivable, and from where did they come? What ideas do you need to have to conceive of such a thing, a political enterprise such as the American founding? That’s what I tried to trace. It, of course, predates Locke by millennia.

Richard Reinsch:
You know, a lot of people, I think, would say you seem to be switching categories, or switching received wisdom here. Isn’t it the Medieval period that’s the problem, and the enlightenment is a solution? When we say there’s a recovery here, of Medieval principles, what are specifically … maybe we can talk a bit about those Medieval principles. And, are we talking about England, primarily?

Robert Reilly:
Well, England, no, no we’re not except later on.

Richard Reinsch:
But, that’s what’s going to be most important, immediately.

Robert Reilly:
Yeah, but England withstood some of the absolute trends and tendencies that took over on the continent, which were under Roman law, and England chose not to go with Roman law which is one reason why freedom was preserved there, to a greater extent.

Let me just give a little larger perspective of the book, Richard.

The question the book asks is, what are the ideas that make the American founding conceivable, and from where did they come? What ideas do you need to have to conceive of such a thing, a political enterprise such as the American founding? That’s what I tried to trace. It, of course, predates Locke by millennia.

As you know, I start in pre-philosophic man, to show what that looked like, and we go through the significance of the discovery of Greek philosophy, of universal truths and principles, the revolutionary revelation of Israel, of monotheism, of a transcendent God who creates ex nihilo, and makes man in his own image and likeness, extraordinary in the sea of polytheism that the Jewish people adhered to, this teaching that there is only one God. The significance of that, with Greek philosophy, as both came to be assimilated in Christianity, is extraordinary.

And, as I talked about Greek philosophy, as you know, including the pre-Socractics, they wondered … First of all, we observed that there is an order in creation, there’s an order in nature. It’s a rational order, and with our reason we seem able to apprehend it. Now, where did this rational order come from? The speculation is there must be a divine intelligence behind it, it must be a manifestation of a divine intelligence.

Richard Reinsch:
Plato reaches that verdict.

Robert Reilly:
Plato reaches that, but before him, Heraclitus does, too. Because I believe it’s Heraclitus or Anaximander who first uses the word logos to describe this divine intelligence that is responsible for the rational order in creation and for man’s reason. Logos, of course, as you know, the Greek word for reason, or speech. Or, that’s the way they spoke of it, which makes intelligible the gospel of Saint John, when he says, “In the beginning, was logos. In the beginning was the word, and the logos was with God, and the word was God, and all things are made through Him as logos.” Which means that now we know why we have a rational creation, because the creator is, Himself, this reason logos. With the added astonishment, can you imagine if Heraclitus, having speculated on logos, met Him coming through the door? Then, indeed is Christ, entering his creation.

But, this logos is not simply logos, the mystery of man, who we know is made in the image and likeness of God, the mystery of man is revealed in the infinite love of Christ. I would say our civilization is based on Genesis, that man is made in the image and likeness of God. That is the source of our conception of human rights.

Richard Reinsch:
Yeah. It’s difficult to argue how one would come to a conclusion of the equality of man as man, if there is nothing higher. When you think about Tocqueville’s statement, “that to understand equality it took God to come to Earth in the form of man.”

But, this also, as you point out, this revolution in thinking about who man is has incredible implications for law, and for government, and for how he would govern himself.

Robert Reilly:
Well, it does particularly when, through Christ, this revelation of God is love, and God’s redemptive love for each person. This exploded the ancient world, that man did not have access, as an individual person, to the divine. The only person who had such access was the divine, or semi-divine ruler. Your religious obligations were your civic obligations, the divine was only accessible through your polis, or your empire with the Pharaoh. Get as near to the Pharaoh as you can, because he’s the divine person through whom your supplications might be heard. But, you certainly, as a person, have no such access to the divine, and therefore, your religious duties are your civic duties. If anyone said there’s some kind of separation between religion and state in the ancient world, they’d have no idea what you were talking about.

The Christian revelation explodes that. Through man’s individual relationship with God, his eternal destiny and that transcendent God is reached, outside the state.

Richard Reinsch:
So, the state is now limited? The state does not reach to the highest ends of the soul, yeah.

Robert Reilly:
The state is not the vehicle for his salvation. This, of course, is the origin, then, of the separation of church and state, and rooted in Christ’s famous statement of giving to Caesar the things that are Caesar’s, and to God the things that are God’s.

Richard Reinsch:
I suppose, Aristotle had the idea, Plato’s . . . The highest idea, or the highest form of existence for the human person would be contemplation of the divine, but that was a pretty limited conception just to the philosopher, as a rare being, a rare creature.

Robert Reilly:
Yeah, it was a conundrum. Aristotle, who said, “Nature always acts for a purpose, for an end.” The end of man that Aristotle saw was, as you point at, at it’s highest, his contemplation of the divine, to become as much like the divine as man could. Only his contemplation of the divine-

Richard Reinsch:
Only contemplation.

Robert Reilly:
Could do that, but the condition, the condition for doing that was twofold, virtue and leisure. Therefore, Aristotle said, “Few, if any, can achieve this.” How can that be, if this is the end of man, and man is incapable of reaching it? Except for the very exceptional person. Well, Christianity had the answer for that, how the non-philosopher also reaches the transcendent through God’s grace and mercy, and will share in divine life as God offers it to him, so that everyone has access to this through grace.

Richard Reinsch:
And this begins, also, moving forward in the book, one’s existence can’t be defined by the government, so you start to see separate spheres of activity emerge, new categories of law recognized by the state, perhaps, but not defined exclusively by the state. You start to have associations emerge. Out of the canon law itself, new forms of law emerge.

Robert Reilly:
Yeah, it demotes the state forever. But, as you just pointed out, it’s one thing to say you’ve got these two spheres, or they’re called, in the Middle Ages, the two swords. The ecclesiastical, spiritual sword, and the secular sword of the political ruler. But, how do you instantiate that, how do you order a society around that? Because what it pre-supposes is dual sovereignty over the same persons, the spiritual sovereignty exercised by the church, and the political sovereignty by the ruler.

The Middle Ages is working out that problem, how the individual can live under this dual sovereignty, and it was a highly developed articulation of that. Of course, these two sovereign ties kept bumping into each other, it wasn’t always a peaceful association, but it generally worked out. Both sides recognized that these two spheres did exist. What this gave man, more freedom, he enjoyed a … What can we say? There was a larger amplitude for him to exercise his freedom because neither sovereignty could claim the whole man.

Well, let me just jump ahead to the development of canon law, because it was through canon law that all of the constitutional principles I have mentioned were developed. There was a lot of thinking about law and political order, occasioned by the rediscovery of the Justinian Code. The canonists began examining it, and they extracted certain Roman legal principles, used them but changed them dramatically. One of the most important of these, that became central to the Middle Ages, and the order of both in the church and the state, so much so that it continued to influence political order to the time of the American founding. The principle is “quod omnes tangit ab omnibus approbari. What touches all, must be approved by all.” It sounds like an early articulation of no taxation without representation, and indeed, that’s what it was.

Richard Reinsch:
That would have emerged in church corporations, monasteries, governing bodies in the church, and then migrated into government?

Robert Reilly:
That’s exactly how it happened. That there was, first of all, the principle of equality was broadly recognized in both spheres, the equality of all men who are rational, and therefore their consent in their rule is required. As you say, this took place in the Dominican order, other orders in church councils. In order for this to function, they had to have the right for representation, so various church chapters could send a representative to a council, and that representative spoke for that chapter, and what was decided would be binding, and so forth.

So, the requirement of consent, popular sovereignty, equality, representation, and the Dominicans had quite an impact in England, as it was observed how they rule themselves according to these principles. The canon didn’t simply work in ecclesiastical circles, they were also in the courts. I mean, the royal courts.

So, these principles leached from the church into the civic and political realm, and there you have the development of the early parliaments. Which, quoted again, that same quote on this tangent principle, what affects all must be agreed to, approved by all. So, the shires were able to select a representative to be sent to the Parliament when the King wanted new taxes, and they could approve it or not approve it. One thing that was clear through all of this, the Abbott or the King was not above the law. It had to adhere to the law, as did all others. The King was made a king by the law, he was not above the law, so he made the law with the approval of those who were ruled by it. This was the norm in the Middle Ages, it was the norm throughout Europe and in England.

Richard Reinsch:
So, what happens? How is that gift, we’ll say, how is it upheld, or not upheld as you argue in the book, as we move into modernity? Specifically in the 16th Century, you talk about some thinkers, one we’ve discussed, Hobbes. Machiavelli, also Luther as well, thinkers who seem to be articulating, reflecting ideas reverting back to the primacy of will, and more towards and unlimited notion of sovereignty.

But, as you also note throughout the book, I guess the theme in your book, too, is the primacy of reason versus the primacy of will, and how that unlocks a new anthropology thinking about man as a being of will, whose reason is shaped by his will or by his passions. Then, that unlocks, in turn, a different way of thinking about government.

Robert Reilly:
That’s exactly right. This change started taking place in the late Middle Ages. William of Ockham is one of the most prominent thinkers who proposed this nominalist and voluntarist way of thinking, that was the obverse of Thomas Aquinas, and the synthesis of faith and reason that he had achieved in his magnificent work.

The key to this is theological. As Aquinas said, it’s God’s divine is primary to the divine will. It’s the intellect that conceives, or knows, and it is the will that executes. The reason logos is primary, because it is reason in God’s essence, and will secondary or instrumental, is because it obeys the intellect.

Now, what William of Ockham does is he flips that relationship, he makes God’s will his primary, and the divine intellect his secondary. It is the will that decides, and there is nothing constraining the will, it can decide anything. The intellect is, then, just an executor, finding the best way for the will to reach its end, its decision, and it is unconstrained. William of Ockham was upset that this Pagan philosopher, Aristotle, who had infected Thomas Aquinas, was constraining the omnipotent God. And that Ockham was going to set Him free, you see, by removing these restraints. But, he had to do so at the price of reason and nature. Now that the will is primary and God can do anything, what happens to the essences of things

In other words, things have natures, as Aristotle and Aquinas said, that lets us know what they ought to be, what their telos, or end is. What makes a human being flourish, and become more human, and what doesn’t? What is good, and what is bad? Are things we know through our knowledge of the thing’s nature, of man’s nature? Ockham says that we can’t know any of this, because there are no essences anymore.

Richard Reinsch:
It’s a divine will, that’s how you know what you should do?

Robert Reilly:
All of these things are the object of God’s will, and the words you use for things, this is phenomenalism, the nomine, the Latin for name, they don’t relate to anything out there. There’s no correlation between the name you give things and what they are because you can’t really know what they are. There’s no order in nature, because there’s no nature. This is a terribly radical teaching, and you can see how it has this ontology of the will unmoors everything. God can do anything. As Ockham scandalously said, “God can make us hate Him, and there’s no gainsaying Him.” There is nothing right or wrong in itself, other than God says it’s right. He may change His mind tomorrow and say it’s wrong, and we have to follow Him.

So, all that we can know regarding morality, and morality is defined by whatever God wills, and He can will anything, we know only through revelation, we can’t know any of this stuff through reason. So, this is an enormous demotion of reason, and it is picked up, he influenced Martin Luther profoundly, because, Martin Luther also bifurcated.

Richard Reinsch:
I was going to say, you pick up with Luther on how this really shaped the way he thought about government, and also how this would reflect law, its command, and our obligations under it.

Robert Reilly:
That’s right, and you see in Luther, under Ockham’s influence, he explicitly denies popular sovereignty. The Medievals all thought no ruler rules by divine right, he’s just another human being. All authority comes from God, but God doesn’t …

Richard Reinsch:
Pass through the people, yeah.

Robert Reilly:
It’s mediated through the people who are sovereign. Luther explicitly denies popular sovereignty, he explicitly denies the requirement of consent representation, and he explicitly denies the right to revolution. So, this new theology of a voluntarist God, a God of pure will and power who, of course, is incomprehensible, such a God is not accessible to reason, you can’t know anything about His essence when that’s will, and it’s a will that is not under the control of anything and through anything, at any time.

The voluntarism in theology is reflected in voluntarism in man. The primacy of will, when you get down to the level of man, is reflected, then, in the absolute ruler.

James Wilson, who was probably the most profound natural law thinker in the American founding, quoting “quod omnes tangit ab omnibus approbari. What touches all must be approved by all.” So, he was a natural law thinker, quoted Cicero, Aristotle. Of course, he quoted Richard Hooker quite a bit, he admired him a great deal. So, they were returning to these natural law, natural life principles, all of which had been denied by both forms of state absolutism.

Richard Reinsch:
Which emerges in the 16th Century, and you quote Lord Acton.

Robert Reilly:
Yeah, 17th Century.

Richard Reinsch:

How did we steward these gifts? Not very well. And, you see the emergence of Divine Right of Kings. As you note, absolutism. Divine right of kings, as I read your book, that teaching is a very anti-political teaching. Things are not debated, compromised in the pursuit of a political good for a constituted people, things are handed down by a king, willfully.

Robert Reilly:
The king is above the law.

Richard Reinsch:
The king is above the law, so we can see how that is definitely a part of how that become part of modern political thinking in other forms as well, and king democracy as some would say. So, you talk about that, that absolutism rising. You argue that the Colonists see their part as a restoration, a reaction against that unbound thinking.

Robert Reilly:
You see a founder like James Wilson, who was probably the most profound natural law thinker in the American founding, quoting “quod omnes tangit ab omnibus approbari. What touches all must be approved by all.” So, he was a natural law thinker, quoted Cicero, Aristotle. Of course, he quoted Richard Hooker quite a bit, he admired him a great deal. So, they were returning to these natural law, natural life principles, all of which had been denied by both forms of state absolutism. The secular absolutism, offered by Thomas Hobbes, and the divine right absolutism, offered by Filmer and James the First.

John Adams “They, the Revolutionaries, begin by reminding the people of the elevated rank they hold in the universe as men, that all men by nature are equal, that kings are but the ministers of the people. That their authority is delegated to them by the people, for their good, and that they have a right to resume it, and place it in other hands, or keep it themselves, whenever it is made use of to oppress them. These are what are called revolution principles. They are the principles of Aristotle and Plato, of Livy and Cicero, and Sidney, Harrington, and Locke, the principles of nature and eternal reason, the principles on which the whole government over us now stands.”

You’ve got that opposition to them coming from the natural law tradition within the catholic church, with people like Suarez and Bellarmine, and you have the opposition coming from the Anglican, like Algernon Sidney, who has kept that same natural right tradition through Richard Hooker. And, through Aristotle, and the others.

Now, Sidney, as you know, was a hero in the American colonies, he was considered a martyr to Republicanism. His book, Discourses on Government, was considered a Bible in the American colonies. It was Thomas Jefferson who said, “This is the book to which we should all turn, and all the young of America should be educated on the principles of Republican government by Sidney’s book.” Of course, we have Hampton Sidney College, here in Virginia, which was …

Named after Sidney, that was created at the time of the American Revolution. So, you see the influence here of this lineage of these ideas, is very direct through Sidney.

Richard Reinsch:
On this, I wanted to read. You quote John Adams, and I think this really nicely encapsulates your point.

This is Adams, “They, the Revolutionaries, begin by reminding the people of the elevated rank they hold in the universe as men, that all men by nature are equal, that kings are but the ministers of the people. That their authority is delegated to them by the people, for their good, and that they have a right to resume it, and place it in other hands, or keep it themselves, whenever it is made use of to oppress them. These are what are called revolution principles. They are the principles of Aristotle and Plato, of Livy and Cicero, and Sidney, Harrington, and Locke, the principles of nature and eternal reason, the principles on which the whole government over us now stands.”

Robert Reilly:
There it is.

Richard Reinsch:
There it is.

Robert Reilly:
You can find that being said multiple times by multiple people in the Middle Ages. As we just talked about, Richard, there was not a straight line development of those principles in more refined constitutional forms directly to the American founding, because of the interruption of that, the break off of the absolutist forms.

Richard Reinsch:
But, this tradition, that Adams quotation, impressive list of thinkers, philosophers, contained there, that full tradition we’ve been trying to describe, trying, in some way, to give justice in 45 minutes, to this unbroken, unwritten tradition of thinking that the American founding stands on. You mentioned in the beginning, the book, you’re addressing is to certain thinkers, Catholic thinkers, some Protestants, turning against the American founding.

John Courtney Murray, in the middle of the 20th Century, thought that if we lost this natural law tradition, that the American proposition, as he termed it, would be eviscerated at one stroke. He always thought, though, that if people did turn against it, it would be those thinkers within the natural law tradition, primarily he thought Catholic theologians, and philosophers, and lawyers, who would uphold it. Yet now, many of them, turn against it. And, in many ways, mock it. I don’t know how else to read … You quote Patrick Deneen on four separate occasions, misquoting Publius and Federalist No. 10 to support his theory of an atomistic founding. I don’t know what else to make of it, other than a willful refusal to reject evidence in favor of some post-Liberal project.

Robert Reilly:
Well, as you know, I also quote Patrick Deneen in a passage in which he says that Václav Havel in Czechoslovakia did not seek a reformed form of communism, but the end of it. In other words, the end of this law, there wasn’t a better form of this law. He made that statement in parallel of what he thinks of the American founding.

Richard Reinsch:
That it’s also a lie?

Robert Reilly:
It is a lie, and there’s no better form of it, there’s no reformation of it. It must be replaced, and that’s what he calls for, he wants a different founding. He never exactly says what, it would be very interesting for him to articulate that.

As you know, I argue somewhat passionately, Richard, that this is a very damaging teaching, because it cuts off the source of recovery. The case I make is the dire moral straits in which we find ourselves today is not a result of the founding, but a denial of its principles. And, our path to recovery must include a return to those principles.

Now, to say that those principles themselves are corrupt, that we have nothing to return to, leaves us exactly where?

Richard Reinsch:
Nowhere.

Robert Reilly:
I wanted to tell you, my oldest son is a Marine Corp Officer, of rather recent vintage, but in his political philosophy course at a Catholic university, the professor taught something very along the lines of Patrick Deneen. So, he didn’t use Deneen’s writings, and he didn’t present it as one of a variety of views of the American founding, but he convinced the class that the founding was morally compromised, it was corrupt.

My son struggled back against this, but the majority of the students bought it. So, at the end, they said, “Okay Professor, you’ve convinced us, we agree the founding was corrupt. Well, what are we supposed to do now?”

Richard Reinsch:
I think this is why your book is so important. I think a lot of people aren’t even aware, really, of the history, philosophy, and legal history that you present in the book. I think they don’t understand that, and they really are cut off from the full tradition, that would not have been possible generations prior for educated political thinkers in America. You know, progressivism goes back over a century, and they’re willfully rejecting something, but they know they’re rejecting it.

I’ve often wondered, too, it’s just there’s moral disquiet, there’s a sense that things are wrong. And oh, plunk, here’s a reason why. I think your book could really strike a chord, in that regard.

Robert Reilly:
You know, if I could say, Richard, we’re probably near the end of our time here, but when people ask, okay, how did we change, or what happened here? In the book, I do quote one passage from President Barack Obama’s The Audacity of Hope, in which he says, “Implicit in the Constitution’s structure, and the very idea of ordered liberty, was a rejection of absolute truth. In fallibility of any idea or ideology, or theology, or ism, in any tyrannical consistency that might lock future generations into a single, unalterable course.” In other words, the truth does not set you free, the truth enslaves you.

Richard Reinsch:
Yes.

Robert Reilly:
He, here, rejects the fact that the American founding was based upon truths that are transcendent, through everywhere and at all times, for everyone.

Now, if that is so, we have something of immeasurable value that we need to rescue. If not, if Obama is right, then indeed, killing unborn children, taking drugs, pornography, same sex so-called marriage, it all fits within it, because there is no transcendent truth.

Richard Reinsch:
It also unlocks the door to authoritarianism. It unlocks the door, because there’s nothing really worth fighting for, at that point.

Robert Reilly:
It makes despotism dispositive.

Richard Reinsch:
Acceptable even.

Robert Reilly:
It leads to despotism, it leads to Leviathan. I would say, Thomas Hobbes is winning right now. But, we have the resources to fight back, but that requires a return to our founding principles, just as for our founders it required a return to the articulation of natural law and natural right principles, that were very ancient lineage. And, on which they based this great thing that they did.

Richard Reinsch:
I think that’s eloquently said, and a point we can end on, thank you so much. We’ve been talking with Robert Reilly, author of the new book, just published, America on Trial: A Defense of the Founding. Thank you so much.

How the Academics Made Progressivism All-American May 01, 2020

Richard Reinsch:

Today we’re talking with Brad Watson about his new book, Progressivism: The Strange History of a Radical Idea. Brad is a professor of politics at St. Vincent College. He’s the author and editor of many books. I’ll mention one that I’ve read. It came out in 2009, Living Constitution, Dying Faith. Brad is also a reformed Canadian patriot. He told me about some quality time he spent this past summer at the US/Canadian border. Not because of Trump’s fascist America but, I think, of incompetence of border officials. Brad’s also the Sage of Latrobe, Pennsylvania. It’s not Arnold Palmer, it’s Brad. Welcome to the program.

Brad Watson:

Well, thank you, Richard, for that introduction and thank you for having me.

Richard Reinsch:

So, thinking about progressivism and maybe, just for the benefit of our listeners, maybe catch us up to speed a bit on progressivism. Give us a working definition of what it is and what it aims to do.

Brad Watson:

The definition that I use in this book, just to kind of set the table for what I’m talking about, which is how historians over the course of the 20th century systematically distorted the idea of progressivism. Progressivism, as I define it, is the idea that the principled American constitutionalism of fixed natural rights and limited and dispersed powers has to be overturned and replaced by an organic evolutionary model of the Constitution that facilitates the authority of experts dedicated to the expansion of the public sphere, the expansion of political control and especially at the national level.

Liberalism has never really had an honest conversation with itself about this because the liberal historians who define the progressive narratives in the 20th century didn’t really come clean.

The progressives in the late part of the 19th century, early part of the 20th century, were very suspicious of the Founders’ Constitution as limiting the power of the state, all the things that progressives want to do. So the story of my book is really the story of the academic biases and blind spots of professional academics, especially historians, who simply do not tell this story either honestly or completely. They make this what I claim is a radical progressive idea, hostility to the Founders’ Constitution.

They try to domesticate it, to make it non-threatening and therefore, I think, forward to this book, friend Charles Kesler said liberalism has never really had an honest conversation with itself about this because the liberal historians who define the progressive narratives in the 20th century didn’t really come clean. Sometimes I think they were willfully blind to these things and sometimes inadvertently blind.

Richard Reinsch:

What composes progressivism? The critique you present, I think, is well known or that they are at odds with the American Founders with the limited Constitution. But what are they drawing from? Where are they getting this?

Brad Watson:

Yeah. The progressives in the early going drew from a number of intellectual currents that were floating around, really, in America, and in Europe to a certain extent almost immediately after the age of Lincoln. So I trace the origins of progressivism to two or three distinct strains of thoughts but sort of related strains of thought. One is social Darwinism. With the publication of Darwin’s Origin of Species, Darwinian concepts were just in the water, as it were, among the intellectual classes. Darwinism, of course, insists that evolution, change, growth, is always and everywhere good, a sign of strength. And stasis, or fixity, including the fixity of the Founders’ natural rights Constitution will get in the way of necessarily organic evolutionary growth.

Overlaid on top of that, where it was the philosophy of pragmatism, which was really a distinctly American philosophy, if there is a philosophy that owes its origins to Americans, it’s probably pragmatism. Which suggests that experimental methods and means are likely to prove the situation, anything that gets in the way of constant experimentation, again, and the fixed Constitution does that to a certain degree of political sphere.

Anything that gets in the way of that kind of experimentation is dangerous. And then, finally, some American progressives are influenced by categories of German idealism, a kind of worship of the state, the confidence that history is moving toward a concentrated, rational state and we shouldn’t get in the way of that inexorable political movement. All of these things cut against the old Founders’ Constitution view that certain things are fixed. The Constitution fixes the leaps and bounds of our common life together. And the way we effect change is through the consent of a republican people.

The progressives always want to displace the consent of the informed people with reported expertise, the people who understand the dynamic of history, the people in the tweed jackets who sit around academic offices and government offices, really understand where history is going. So social Darwinism, pragmatism, and German ideals put together form a potent intellectual cocktail which morphs into, by the early 20th century, into what we have come to see as intellectual progressivism and eventually that, of course, the father of modern liberalism, New Deal Liberalism, Great Society Liberalism.

Richard Reinsch:

Thinking about progressivism, I want to get more into your book on how the historians and other academics have told the history of progressivism. But you would be a part of the notion that progressivism is a foreign import to these shores, Germany being a primary place where it starts. And American academics go to German universities and learn things and those ideas are then brought back to America universities, most notably John Hopkins, the University of Wisconsin.

Brad Watson:

Right. Hopkins, Wisconsin. I talk about these places a little bit in my book, and some of the people who were there. In terms of it being a foreign import to American shores, yes and no. There are certainly strains of, as I say, there’s this German idealism among some of the progressives. But others I would say are picking up on more what I would characterize as indigenously American intellectual phenomena, such as pragmatism, social Darwinism. In some ways, social Darwinism had its most prominent adherence in the late 19th century in the United States. So you can’t simply ascribe it to a kind of foreign virus infecting America or something like that.

Richard Reinsch:

The German invasion.

Brad Watson:

The German invasion, right. I don’t want to overstate the German invasion. I know some people broadly on my side of things want to attribute all of this progressive phenomenon to the German invasion but there’s a good deal of, I think, indigenous roots to this, too.

Richard Reinsch:

On this point of the German invasion, I guess I ask that question because I agree with you. I think there’s an indigenous part of this. There’s also Americans writing much sooner than the later, than the last quarter of the 19th century. One that sticks out in my mind is Orestes Brownson, who was a major public figure, writer, in the 19th century in America who, in the 1820s, in the 1830s, is sort of channeling a lot of liberation theology, a lot of humanism. He’s a disciple of Kant at one point in his career and, I know, broadly articulates a progressive approach, a very muscular, progressive approach to government and sort of a rejection, in his writings, of how American government is understood at that time and the way he interprets the Declaration of Independence as being not necessarily about natural rights but about some sort of broad humanitarian emancipation.

So I agree with you there. I’m thinking the ideas do seem to come together in a very powerful way, though, with academic learning from Germans. So here’s my question. Why have they been… Or I don’t know if you agree with this. They seem to have been very successful in the academy, in American universities in the 20th century, and very successful politically. Not yet having remade our Constitution into their image but, at times it seems, getting closer and closer and closer.

Brad Watson:

Yes. The academy, I think we all know, has long been dominated by what many of us would call liberals or even radicals, in some cases. But, really, the origins of modern American academic disciplines, I’m thinking now about political science. I’m a political scientist. I’m thinking also about history, and in this book I’m dealing mostly with historians. I like to say I’m not a historian but I play one for the purposes of this book. I’m really dissecting and deconstructing the peripheral or progressive historian’s approach to things.

These disciplines were really founded, invented, the Modern American Political Science Association, the American Historical Association. These were founded in the late 19th or early 20th century as adjuncts of ways of channeling progressive ideologies, specifically into the American academies. So in a way it’s not accidental. The progressives were there at the foundation of modern American academic disciplines. The disciplines, primarily among the academic disciplines that really try to transmit the American story, history political science. So in a way it’s not something accidental that so many liberals inhabit these disciplines because the disciplines were set up precisely to channel progressive ideology, at least in the United States.

In Teddy Roosevelt you see this interesting mixture of progressive elements with, to a certain extent, the old language of American politics.

Richard Reinsch:

On the point of just the success of progressivism politically, one thought that I’ve had, and I’m interested to hear your thoughts, it arises in the, politically, as we’ve been discussing, turn of the 20th century, later part of the 19th, and then sort of explodes. Teddy Roosevelt referred to it as Hegel on horseback. Woodrow Wilson. And then we have the 1920s where the brakes get put on. Is there something quintessentially American about progressivism in the sense of a people who settle a continent, who set up commerce throughout the continent, who build railroads, who settle it, who have experienced amazing gains in wealth in industry and technology and the whole American settlement story?

Is it not then the case that you would then take, “And we can do this in government,” or, “We can improve government. We can make it stronger, more precise. We can make it do more.” What do you think of that?

Brad Watson:

Yeah. Well, I’ll say something about Teddy Roosevelt. It’s not quite as poetic as Hegel on horseback, but he’s really more of a kind of social Darwinist/pragmatist on horseback, I think, than Hegel. Now, Woodrow Wilson is a progressive successor. He’s more influenced by Hegel, I think. But in Teddy Roosevelt you see this interesting mixture of progressive elements with, to a certain extent, the old language of American politics, which I think you’re alluding to, which is a kind of sense of the possibilities, the fluidity of American society and the openness of the frontier, the striving that defines Americans.

So the question really becomes if these old categories are close or not to the new progressive categories. And I don’t think they are that close because progressivism as it comes down to us really embodies not just good old fashioned American striving or desire for economic improvement, advancement, the settlement of the frontier, whatever. But, really, a philosophy of history. A belief that history is unfolding inexorably and inevitably in a certain direction and it requires expert superintendents in order to get it there.

The older language of American politics had, I think, a more bottom-up flavor, a self-governing people striving for greatness, as it we’re, whereas the progressive vision is bound up with this philosophy of history and this top-down model. TR is interesting because he’s kind of a transitional figure between these two worlds, the old language of American politics and the new, whereas Woodrow Wilson is more explicitly the new language of the enlightened administration.

Richard Reinsch:

On the enlightened administration point, do we still believe in that? We have the sort of inertia of massive bureaucracy and administration and we have, as I ask you that question, no small amount of ink is spilled on, including in Law & Liberty, on the decline of self government, the decline of Congress. And yet do Americans really believe in rule by experts or the best and the brightest? Isn’t that a point of mockery now? Is that aspect of progressivism still alive?

Brad Watson:

Yeah. This is interesting. Functionally, of course, we’re stuck with this legacy of progressivism. But one of the interesting things about the United States, I think, compared to, frankly, most other advanced liberal democracies, which you’re aware I’m originally a native of Canada, as you mentioned. It seems to me there is less resistance among the people in most advanced liberal democracies to this idea of expert rule, top-down rule. They’re more complacent. But the Americans are less complacent. So that raises the question, what accounts for our, at least residual, distrust of expertise? I think, at least relative to other countries.

And I think part of the answer to that is simply the enduring power of the American Founders’ Constitution, the enduring power of republican ideas, the enduring power of American imagery linked to the Founders’ notions of a self-governing people who take responsibility for their own affairs. I think whether America has become a fully progressive nation, it kind of depends I think on where you’re coming from. When I first moved to the United States I used to say to some of my lamenting conservative friends who always think the American cup is half empty. Coming from Canada, I think it’s half full.

Americans are not quite as comfortable with this model of top-down government that some other people are. So there’s a battle for the American soul, I think, still going on. In broad terms you can describe it as the Founders’ America versus progressive America. We’ve moved a lot in the direction of progressive America, toward a vision of expert rule, but we’re not fully there yet. There’s a lot of Americans who still resent it or are still willing to fight against it. To some extent I think the Trump phenomenon is a reflection of this, right?

The peasants are out and they have their pitchforks. They’re as mad as hell and they’re not going to take it anymore, even if it’s a little bit inchoate in some instances. It’s there. It runs through and through, I think, American politics and always has. Although recently we’re told by our betters that we have to behave ourselves and, in some respect, our betters are now on the Supreme Court and we just have to accept whatever these experts hand down to us. A lot of Americans still don’t buy it, so it’s a complicated question.

Richard Reinsch:

Yeah, I know. And a part of that, too, I think is the institutions progressives have built increasingly don’t look so lovely and don’t seem to have-

Brad Watson:

Exactly. They’re not working.

Richard Reinsch:

Yeah, they’re not working very well. They don’t seem to have, I don’t know, inspiration, imagination, a hold on people. Particularly higher education, I think a lot about you’re obviously invested in greatly.

And even if we think about the most progressive states in this country, the moving van test, which way are the moving vans pointed. They’re pointed towards the benighted conservative red states. There’s where most economic growth and population growth is happening in this country, including for our left-wing millennials. They’re moving to these states, also, to find a job. So I think that all should be said. Now, tell the story or help us understand how academics wrote about the progressive emergence.

Brad Watson:

Yeah. I’m looking, as I said, mostly at historians in this book. Historians became, some of the big-wig historians that many people would be at least passingly familiar with, the Richard Hofstadters, the Arthur Schlesingers, people like that, big-wig historians of the 20th century, but many lesser lights, too, how they told the story of American progressivism. And pretty much systematically I conclude, after going through them all in this book, they downplay the hostility to the Founders’ Constitution, that the early progressives exhibited, or the Constitution is simply absent in some cases in their story. It seemed to be a quaintly irrelevant anachronism. They also downplay the kind of fervid, secular millenarianism, if you will, of some progressives. Some of the early progressives were actually Christians but they pointed Christianity towards-

Richard Reinsch:

Social justice.

Brad Watson:

… the social justice, as we would now call it, sort of immediate economic concerns. And to the extent that, in some of the early progressive theologians on the Protestant side, people like Walter Rauschenbusch, who I’m going to talk about on campus sites. People like Father John Ryan.

Richard Reinsch:

John Ryan.

Brad Watson:

It’s almost as if traditional Christianity, or Christianity concerned with individual sin and salvation, is replaced entirely by social Christians. That is to say, a Christian who is concerned about economic policy, in this case. The historians don’t tell this story. They don’t tell the story of the hostility of the progressives to the Founders’ Constitution or this, I like to think of it as a kind of secular millenarianism that goes along with modern progressivism. Modern progressives who’ve lost all connection to their Christian roots, nonetheless still have this sort of self-righteous edge to them, which I think in some ways they derive from the earlier more explicitly Christian fore bearers.

But the historians don’t tell this story at all. Progressivism is kind of hollowed out. It’s told as the phenomenon that is somehow organically compatible with American political categories. And, for some of the reasons that we’ve already discussed. America, they’re telling at least, has always been a kind of progressive nation. There’s nothing to see here. Move along. The progressives just tried some social reforms. Some of them succeeded. Some of them failed.

So progressivism comes across as a warm and fuzzy social movement to improve whatever labor laws, factory conditions, things the progressives were concerned about. What it doesn’t come across as is a coherent intellectual movement that is so fundamentally hostile to the notion of a fixed Constitution, fundamentally hostile to the Founders’ Constitution. And you can read book after book after book, somebody defining history of the 20th century, and believe me, I did this in writing this book, and is some cases see nary a mention of the Constitution or what the progressives themselves agreed on. I’m not trying to be polemical in this book, at all.

Richard Reinsch:

Do you attribute that to the discipline of history and how they understand what they’re doing? Do you attribute that to they themselves, many of these historians, didn’t take the American founding that seriously as its own coherent set of ideas and principles and/or, and maybe these are all running together, these guys are themselves progressives and, of course, don’t see anything there?

Brad Watson:

Yeah. A little bit of both. I open the book with the notion of confirmation bias, as I call it. That is the tendency of investigators to seek and elevate those things which confirm their pre-existing hypotheses. In modern psychology this is a real thing and I suggest that professional academics, especially historians, were nominally dedicated to objectivity, having to prove immune to confirmation bias or professional deformation, if you will, in their attempt to transmit the progressive idea. They are themselves progressives. They share some of the progressive assumptions about the inevitability of historical progress, the desirability of expert rule, suspicion of the peasants with pitchforks, the ordinary people for America.

So when they’re looking at and purporting to describe as professional historians, progressive phenomenon, they just see it as American as apple pie. They think so. So it’s partly the fact they are progressives. It’s also partly, as I suggested earlier, baked into the cake of the American historical profession. The formative orthodoxy of the early historians with the formation of professional associations, the AHA, was this belief in scientific history. That is to say, what evolutionary categories, Darwinian categories, the suspicion of transcendental principles of, with a suspicion on fixed truth. And I’m talking about discipline-wide now, with the foundation of the modern historical profession. Faith in progress.

Richard Reinsch:

That ideas are epiphenomenal to-

Brad Watson:

… historical forces.

Richard Reinsch:

Right. And you see in ideas are also relative or fixed to their time and place, to specific groups and people. So they really aren’t ideas.

Brad Watson:

Absolutely. And the historians and… historical profession, it tends to, like most of the intellectual classes of their day, emphasize the utility of statism, the chimerical status of natural rights in the face of what? Well, Darwinian and pragmatic criticisms, especially. The anachronistic nature of the Constitution that is rooted in natural rights, rights that don’t change with time. So both the historical profession and individual historians are thoroughly infected with these ideas. So when they look at the progressive phenomenon, they see themselves reflected. They see nothing hostile to the American constitutional order.

Richard Reinsch:

Do you see this primarily mid-century academics, and one can also see they themselves, Richard Hofstadter, which you open the book with a long quotation from him, where he basically calls himself a man of the progressive wing, writing about progressives. So they themselves certainly don’t want to highlight and just don’t see any dramatic change here between their ideas and the founding and all of that.

Does that hold true, though, with the new left scholars? Does that hold true as we move into getting into the beginning of the 21st century, to the extent their scholarship, progressivism. It seems to me they now want to play it up. And maybe a popular indication of that was Hillary Clinton saying, “I’m not a liberal. I’m a progressive,” and progressivism now being something worth building an intellectual defense around.

Contemporary liberals believe that we must live under a living constitution but, of course, to live under a living constitution, which lives and breathes and grows and changes with the winds of progressive elites, is to live under no constitution at all. The very nature of a living constitution is to not fix things, or put certain things beyond the bounds of ordinary political change.

Brad Watson:

Right. That’s a good question. I move chronologically in this book, sort of following the historical accountings of progressivism from the 1940s through the 1950s, then through the ’60s and ’70s. And the original new left scholars, those who were originally associated with that term, came on the scene in the 1960s. And they were operating in neo or fuzzy Marxist categories. And, like the more consensus historians, like Hofstadter, Schlesinger, they also claimed that progressivism was of a piece with the American historical tradition. Their sort of more Marxist analysis simply said that progressives were only trying to grease the wheels of capitalism, basically.

Again, there was nothing to see here but from a hard-left point of view, as it were, there’s nothing to see here. Everyone, including the progressive reformers, is trying to further economic expansionism, et cetera. Some of these more contemporary progressive, or new new-left, if you will, thinkers of the current century, they do try to reinvigorate the label of progressivism and hold it up as something to be proud of. Hillary Clinton certainly tried to do that.

Brad Watson:

And their understanding, though, I think, is, again, that progressivism essentially is America. The Constitution has always been, of necessity, must be a living constitution and the early progressives understood this, and later progressives like the Fells, merely make clear this truth against the fuddy-duddy conservative right that they hold up as straw men who want to make us live like we lived in the 18th century and all these nonsensical notions of what a fixed constitution is.

So the contemporary, there is some effort to revivify the label of progressive to make it useful to contemporary liberals. Liberalism fell out of fashion and Hillary Clinton I think got the idea that she’d call herself a progressive. That would be better than liberal somehow. But, really, contemporary liberalism is the natural outgrowth of early 20th century progressivism. Contemporary liberals believe that we must live under a living constitution but, of course, to live under a living constitution, which lives and breathes and grows and changes with the winds of progressive elites, is to live under no constitution at all. The very nature of a living constitution is to not fix things, or put certain things beyond the bounds of ordinary political change.

Richard Reinsch:

Let me go in a different direction a little bit but still kind of staying with the academy and the intellectuals. You think about progressivism, Teddy Roosevelt, Woodrow Wilson, FDR, and then moving up to LBJ and the great society, and then the new left. I guess I want to try and see or think about the connections there, and also academic connections because clearly that will remake the American academy in a major way. It takes a generation to do it. But the connections, though, have to be with the earlier progressivism. How do you see that happening?

Brad Watson:

Yeah. As we were discussing earlier, in many of the most important disciplines in humanities and social sciences in American universities you see the disciplines themselves orient towards the progressive project from the get-go. Obviously hiring over the last, oh, my gosh, I’m tempted to say 100 years in the American academy, but at least over the last 50 years, has been very much hiring from the left, by people in the disciplines that I’m most interested in, like political science, history-

Richard Reinsch:

Sociology.

Brad Watson:

… law, and sociology. Yeah. Believers in what? Growth, change, often evolutionary growth, pragmatic experimentation. The rejection of transcendent truths. And, in this sense, there is a broad compatibility of the direction of the contemporary American academy with progressive early 20th century progressive premises. The idea that, for example, within political science, that would want to teach the Constitution as a fixed document embodying truths, nature and nature is God, is really, really weird in most places. And I teach at a fairly traditional liberal arts college.

But when you get students out of high school, it is simply the belief that the Constitution, changes evolve over time. It’s like mother’s milk. Everybody, to the extent they’ve thought about it at all, believes this is obviously the case. You have to kind of spend some time explaining what the Constitution is, what a written constitution is and isn’t and if we’re going to have changes, obviously we are, then we should have the through consensual public mechanisms, legislation, not through pretending the Constitution guarantees every fashionable preference of the day.

But now this is everywhere. It’s in the high schools, it’s in higher education. You can blame a lot of this, I think frankly, on the progressives, on early 20th century progressivism. There are a million people to blame here but certainly the progressive intellectual movement has played a big role in defining the academic disciplines which, in turn, defined what high school teachers have been taught, what people through and through education circles have been taught. So that’s a great story to be told.

Richard Reinsch:

You made an interesting observation in the introduction that the rise of progressivism, paradoxically, even though they are always claiming to be exalting the individual, diminishes the realm of the private and diminishes the conscience. I wanted to talk about that and you spend a lot of time talking about religion. Mainly what has come to be called mainline Protestantism, but also Catholicism to a certain extent, as in a way, and I don’t know if this holds true with Catholicism in the period, but definitely with Protestantism, a falling away or I think it starts in the seminaries, a dismissal of what would be thought of as orthodox doctrines of Christianity.

Dismissing those, that’s not really the point of Christianity. It becomes something else. More immanent, more involved with things of the city, of equity, of distribution of wealth, things like that. But that filters out. It goes in the seminary. It then goes with those students as they go out in the pulpits. You’ve got the leading voices of Protestantism saying this. And then you get this great split in Protestantism in the early 20th century in America where you have more conservative churches form and they’re much smaller and they don’t have nearly the cultural influence.

Just sort of drawing a line with that observation, the diminishment of the realm of conscience. It’s almost like the evacuation that there’s any ground or metaphysical substance or good to freedom or to human action. Americans don’t articulate it like that, but I guess more and more I tend to think it’s what happens in Protestantism in the 19th century in America that really starts to shape the American mind. And now we have the complete loss of mainline Protestantism in America, basically, certainly as a contributor to public discussion. And then anything about what’s left and you have a diminished Christianity. I was just going to make that observation to see what you make of it.

Brad Watson:

Yeah. I think the early Christian progressives, Rauschenbusch, Father John Ryan, as I mentioned, they really lay the groundwork for the kind of nowadays explicitly secular but, frankly, very self-righteous elite progressivism of the day, which speaks in moralistic terms, minus God. So, as I look to say, the early Christian progressives seem to believe when the fullness of time was come, God sent the administrative state.

Progressive theorists embraced this notion that you get material and spiritual fulfillment through the good graces of the state, essentially. So the idea is of an organic political whole which makes us whole, which solves all human problems in the here and now.

Richard Reinsch:

Yeah, yeah. That was a great line. And you quote Teddy Roosevelt. I had not seen that quote in quite a while “Let us battle for the Lord, as in the day of Armageddon.” Something like that. That’s powerful.

Brad Watson:

Yeah. And that religious language ran everyone through progressive political gatherings.

Richard Reinsch:

It’s inverted, though. The symbols of Christianity are being inverted, yeah.

Brad Watson:

Let me address your question this way. When you start to think as the early Christian progressives do, and now the later secular ones do certainly, that all aspects of the state really should be understood to be the means to human welfare and, frankly, all aspects of moral and theological thought direct themselves to the immediacies of the here and now. The early progressives thought you could cleave to essentially the good judgment of Christian rulers. Vast amounts of discretion as to what constitutes the public welfare.

The main thing you have to overcome, whether it’s people’s attachments to the right to property and things like that that talk about the social good, the purposes of government come to be seen in very broad terms. The furtherance of general welfare in the light of God’s purposes. So what happens? Well, any notion of natural rights or fixed rights, including property rights, have to be done away with. Natural rights are seen as less natural, less fixed. Less protective of the irreducible spheres of human thought and activity, certainly than would have been acceptable to America’s founders.

Progressive theorists embraced this notion that you get material and spiritual fulfillment through the good graces of the state, essentially. So the idea is of an organic political whole which makes us whole, which solves all human problems in the here and now. So you get some extraordinary statements from these early Christian progressives about how Jesus was misinterpreted when he said the Kingdom was not of this world. The Kingdom really is of this world. You actually find Walter Rauschenbusch saying, he writes socialized love, as he calls it, is necessary in this world.

So what becomes important? Well, the idea of the realm of the private, even the realm of conscience is diminished because the only things that are measurable and manipulable by the experts are things that the state controls. So economic data start to replace theological teachings. During his teaching time at St. Paul seminary, Father John Ryan, for example, I discovered some interesting little things like this. He devoted more than a quarter of his course on moral theology to what? Economic history and political economy. That is moral theology for the early Christian progressives.

So the realm of conscience is diminished because the only things that are important are the things that are manipulable and controllable by the state. And we see the ramifications of this today in mandates on religious institutions. The only things that are of importance. I think these are all kind of outgrowth of this early millenarian progressivism which was rooted in progressive Christianity but has become secularized over the last 100 years. And, again, the historians forget about that, telling the story. They just don’t do it. They don’t see it.

Richard Reinsch:

Well, and the way in which, if you kind of diminish the idea, or do away with the idea, of their being natural rights or a pre-political aspect that the government should recognize and protect, you quickly then get to the view, well, whatever you have you don’t have it without the state.

Brad Watson:

Exactly.

Richard Reinsch:

You then reintroduce almost like a feudalistic notion of being a subject, of course, famously expressed by Barack Obama. “You didn’t build that.” That’s a core progressive notion that your wealth was made possible by the state, building the roads, educating your workers, all this, and refusing to see any value add from capital or entrepreneurialism or skill or daring or courage of someone starting a business. That doesn’t really matter.

So, yeah, you can see it even in that expression, as well. The diminishment of conscience also, everything is evolving obviously. Nothing’s fixed. You’ve kind of talked about that. So I guess my question for you now, thinking about progressivism in 2020. In many respects, we’re sort of dealing with a metastasizing program. We kind of said Americans no longer believe in rule by experts.

But the goals, I think, for the descendants of progressivism are now to completely wipe away any veneration for the founding, any notion of a core American nation culture. Samuel Huntington sort of touched on this in his… sort of did in his last book, Who Are We? That, in a sense, the promotion now is to sort of destabilize America as having any sort of coherent identity and goodness.

Brad Watson:

Yeah. I think that’s right. And there’s a parallelism between the early progressives and contemporary progressives or post-modern liberals, whatever you want to call them. The early progressives saw the Founders’ Constitution and the older notion of Christianity as standing in the way of what? Economic reform and political reform. So you have to overcome these things to move history to the next stage. Which was largely understood in economic policy terms. The contemporary progressives, or the post-modern progressives, are doing the same thing.

The Founders’ Constitution, and certainly the older notion of Christianity, stood in the way of what? Culture reform. Culture reformation. So economic radicalism, or economic growth, has now been replaced with culture radicalism or cultural growth and evolution toward the next stage. But it’s interesting how progressives of 100 years ago and progressives today, both see the Founders’ Constitution as getting in the way of this, which is why so much effort is expended by contemporary, liberal especially, in the academy trying to destabilize, trying to undermine people’s confidence in their political institutions, trying simply to dismiss the Founders’-

Richard Reinsch:

The 1619 Project.

Brad Watson:

The 1619 Project. The proximate goals, you might say, are different. One, to affect economic and political change, the other to affect radical cultural change. But both groups see, from a spread 100 years apart from each other, both groups see that the Founders’ Constitution gets in the way of this. The American Founders’ political philosophy gets in the way of this. Old fashioned Christianity gets in the way of these transformations. So you have to reconfigure these things.

And now, of course, it’s liberal Christianity, progressive Christianity, says you have to reconfigure old Christian categories, else be deemed a racist or a sexist or a homophobe. The same way early progressives said you have to reconfigure Christian categories or you’re mired in the past in terms of economic and social policies. But they see the same enemies, even though their objects have shifted. Which shows, again, the power of these things, I think. That is to say, the importance, the defining character of the Founders’ Constitution despite all the assaults against it. All the progressives understand it stands in the way of their radical project.

Richard Reinsch:

Brad, as you think about the American academy, which we’ve talked about on this interview, being so decisively shaped by progressivism and its ideas for how the state should regulate higher education, as you look ahead, as you look forward, how do you see things shaping up? Do you see any reform efforts happening? Or is, as I think, the best that could be done would be immediate deregulation and trying to return something like a market to higher education, apart from any thinking about curriculum or all that stuff.

Brad Watson:

Yeah. It’s very difficult to know what should be done. One of the things that is being undertaken, of course, people are forming, developing, promoting enclaves within the existing academic structure. Certainly we’ve done that at my institution, whether it’s a center for political thought or a politics program, and a number of places within the college where we’re trying to reinvigorate the study of what? The serious book. The great book of Western civilization, the great writings of the American political tradition.

And these things now exist at all kinds of institutions large and small. So people are working within the existing framework. But, I think it’s important, as you suggest, to think outside the existing framework, how to create a market in higher education, given the stranglehold, even if we agree that’s a good thing, given the stranglehold of regulatory agencies, especially accrediting agencies which operate under the color of right, the Federal Department of Education, things like this.

It’s bureaucratically almost impossible under the current conditions to imagine a real market for American higher education. So the first thing we do politically, I think, and republicans have talked about it for a long time, but we’ve got to destroy the Department of Education in its current configuration and the ridiculous bureaucratic accrediting agencies, which hand down increasing numbers of mandates that get imposed so forth and really prevent entry into anything like a real market for higher education. But this is a political problem. Ultimately it’s a problem of federal control of education, or largely a problem, at least the federal control of education. Which, in turn, is a progressive goal. Let the feds control everything, right?

Richard Reinsch:

Brad Watson, thank you so much for your time today. We’ve been talking with the author of Progressivism: the Strange History of a Radical Idea, published by Notre Dame Press. Thank you so much.

Brad Watson:

Richard, thanks so much for having me. I appreciate it.

Rumors of the Death of the American Dream Are Greatly Exaggerated Apr 15, 2020

Richard Reinsch:
Hello and welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Michael Strain, author of the new book, The American Dream Is Not Dead: (But Populism Could Kill It). Michael Strain is an economist. He is resident fellow at the American Enterprise Institute, where he is the Director of Economic Policy Studies. You will know him, as I do, as a long time contributor to public debates and discussions from an economics perspective. He’s a regular columnist at Bloomberg, and is someone that I have found very useful in thinking about all of these issues surrounding debates about wage growth, labor productivity, unemployment statistics, and just sort of the general matter of discussion these days on economic questions.

Richard Reinsch:
Michael, welcome to the program.

Michael Strain:
Thanks so much for having me on. It’s great to be here.

Richard Reinsch:
So thinking about your book, now, you address the American Dream, the question of the American Dream, from an economics perspective. How are you defining the American Dream and why is it not dead?

I focus on that economic component and I look at some very standard economic questions. “Are wages stagnant?” “Do workers see the fruits of their labor rewarded?” “Do the gains from the economy only accrue to the top?” “Has quality of life improved?” “Has household income gone up?” “Have the forces of creative destruction created economic opportunities for middle-class American?” “And is America still upwardly mobile?”

Michael Strain:
So I think about the American Dream of being an amorphous kind of thing that encapsulates many things. People think about strong communities, people think about home ownership, and people think about strong families and things of that nature. I think central to anyone’s definition of the American Dream is a large economic component. The idea that hard work will pay off, the idea that you can better your economic situation and see your wages and income go up, and especially the idea that your children will do better economically than you.

So in the book, I focus on that economic component and I look at some very standard economic questions. “Are wages stagnant?” “Do workers see the fruits of their labor rewarded?” “Do the gains from the economy only accrue to the top?” “Has quality of life improved?” “Has household income gone up?” “Have the forces of creative destruction created economic opportunities for middle-class American?” “And is America still upwardly mobile?” I define in part, the standard questions that people ask. “Do kids grow up to do better than their parents?” I look at all those.

And I walk away with the conclusion that the American Dream is alive and well. Now, that’s not to say that we should be satisfied. Of course, we can always have even faster wage growth, even faster income growth, even more upward mobility. And it’s not to deny any of the real challenges that are facing American workers in American households. Most notably the coronavirus spread, which materialized after the book was published. But at least to say that when you kind of look over the long sweep, when you look over a 30-year period, a three-decade period, you see substantial economic progress. The progress is not uninterrupted. There are of course challenges and setbacks that occur along the way, and right now we’re facing a serious challenge with coronavirus. But the long story is the story of economic progress.

Richard Reinsch:
I want to get into the book. Real quick, as an economist looking at the recent stimulus bill that was passed and how the federal government is managing the situation, do you see troubling long-term trends that could develop from this? Or is it as many would say, the government is reacting to this unprecedented crisis in a novel way, but things can hopefully be put back together again once it’s over?

Michael Strain:
Yeah, I think the government’s response has been about right. The scale of this crisis and the suddenness with which it hit the economy are unprecedented. Right now, there are something like 250 million Americans being told to stay at home, over three-quarters of the people who live in this country. Over 30 states have lock-down orders. Well over a dozen cities have lock-down orders, and Washington DC is locked down as well. Just this morning we learned that in the two week period that ended on March 28th, 10 million people filed for unemployment insurance benefits for the first time. That dwarfs by a factor of 10 any previous weekly increase in unemployment insurance claims.

Richard Reinsch:
Yeah, that’s a massive number.

Michael Strain:
It’s a massive number. I mean, obviously it’s very hard to forecast, but we could easily end up with annualized quarterly GDP growth of negative 30% or higher for the current quarter. We can end up with a 10% or 15% unemployment rate as peak. I mean, this could be a really, really bad economic situation. And so, I think Congress was right to act very quickly and aggressively, and I think the program they put together has a lot of really good components to it. The million dollar question is, of course, how aggressive will this virus be? And we don’t know. We don’t know that. If the virus, if it’s on a more aggressive side, we may need even more. If it’s on the less aggressive side, then we will be back open in the late spring or early summer and things may be relatively normal. And so I think it’s just very hard to know.

Richard Reinsch:
Do you see anything bothering you though? Things that I’ve read, the extent of Treasury having something like a $500 billion portfolio to loan out money to businesses. And then of course, it seems what I’ve read, a new step of Treasury taking ownership stakes and companies that were buying bonds, corporate bonds, commercial paper, things like that to float companies forward. I understand that, but sort of making our economy more centralized and more brittle long term.

Michael Strain:
I’m worried about the potential downsides of that $500 billion fund, for sure. I think that there will be some extraordinary and unusual things that the government is going to do. I don’t expect any of those things to be permanent. I mean, the government took an ownership stake in some companies 12 years ago with TARP. TARP ended up making money for the taxpayer, and the government no longer owns car companies or owns any stakes in car companies, or things of that nature. So I think everybody recognizes that extraordinary measures have been taken, but that they’re emergency measures that won’t last. Giving that much money to Treasury to allocate as it sees fit is something that raises an eyebrow, and we’ll see how they do with that. Hopefully everything with that works out reasonably well. That’s one part of the larger package. I mean, the total amount of money that’s been spent on this is $2 trillion, $2.2 trillion, something like that. And for that, $500 billion is kind of a minority part of the whole package.

Richard Reinsch:
Yeah. Thinking about your book then, or returning to the American Dream, you have an opening passage that I wanted to read and then I’ll ask you a question and get your comment. You say, “The American Dream is not dead. It is surprising that such a sentence would be so controversial, but it is. If you’re looking for bipartisan consensus, start here. Leading politicians and presidential candidates from both parties have voiced agreement on these points: America is no longer an upwardly mobile society.” And then a couple of lines down, “The game is rigged for everyone but those at the top.” Why is that sentiment so pervasive?

And I’ll say 2016, 2017, that’s actually how I came across your work. I started to think maybe my own thinking about the free market and the American story, that I had missed a lot of facts to have the political situation turn out the way it had. And so I was willing to question a lot of my prior beliefs and did a lot of my own research. And of course, it’s not something that’s gone away. It’s been a part of the Democratic primary contest, and it’s sort of become the lingua franca of a lot of particularly younger conservatives as they think about politics.

Michael Strain:
Yeah. I mean, I think it’s a combination of things. I think one factor, and I talk about this in the book, is that we do have real challenges. If you’re an adult male worker without a high school degree, you have a hard time. Now, that’s a very small share of the overall population, but that’s a serious concern to be sure. There are some towns that have been left behind by technological automation. Again, it’s a very small minority of towns. It’s even a minority of towns that back in the ’70s were manufacturing centers. But those problems do exist. The opioid epidemic was a real thing, is a real thing, excuse me. We have seen a very troubling increase in the number of suicides. And I could go on as well.

So there are real pockets of problems in American society and in the American economy. I think we focus so much on those pockets of problems that we miss the broader story. So what I wanted to do was zoom out to the 30,000 foot level and say, okay, yes, there are problems. There are challenges. There’s no question about it. Don’t want to deny those, don’t want to minimize them. But most people are not residents of a failing town. Most people are not 50 year old men without a high school diploma trying to make it in today’s labor market. I wanted to characterize what is the experience for typical Americans in typical situations. What does the economy look like at the 30,000 foot level for most people.

And so that’s the purpose of the book. I mean, there are other reasons too, I think, that this narrative is so common. One reason is that bad news sells, and if you’re an aspiring politician trying to get people to vote for you, you need a rallying cry. And often that rallying cry is more successful if it focuses on bad news rather than good news. Another reason I think this narrative is so prevalent, it’s the Great Recession. And the Great Recession was really, really bad. And millions and millions of workers and households were hit so hard financially and economically from the recession. And until three weeks ago we were, economically speaking, we had recovered from the Great Recession. But we had not like psychologically recovered from that. And I think it still lingered quite a bit in people’s minds. So there are a bunch of reasons of why I think the narrative is so prevalent. But, I also think the narrative is wrong, and that’s what I tried to demonstrate in my book.

Richard Reinsch:
You talk about isolated cases and maybe things that aren’t so representative. Many though point to just generally say, “Well, wages haven’t gone up for people in the 50th percentile, much less people in the 20th percentile, 30th percentile of income, their wages have been stagnant. That’s constant.” And I think I’ve heard that for going back since I was a college student, I remember people saying this or reading this, that’s not necessarily new, but it’s sort of the way we think about the economy now.

And this is sort of the support for increasing the minimum wage or having the government be more involved in healthcare, things like that. People on, not just on the left, but also traditionally conservative minded people like an Oren Cass have argued this should bring us back to an industrial policy because what’s missing are the evaporation of industrial jobs, only to free trade and some do automation, although it’s more automation than free trade. But, we should bring these things back and this would help get wages up. This would help get men back into the workforce. This would solidify families, small towns and these are, I think they would argue more general things, not just isolated things. How do you respond to that?

Michael Strain:
So, I question the premise. In the book I share a bit, if you look over the last 30 years at average wages for production and nonsupervisory workers. That is average wages for workers who are production workers in manufacturing and construction workers in construction or workers who aren’t managers in the services sector. That’s about 80% of all workers. You can think of those as workers, not bosses. Average wages for that group have gone up by a third over the last three decades. I show that median wages have gone up. I showed the wages at the 20th and 10th percentile have actually gone up faster than the median over the last three decades. I showed that income, which includes wages, but also includes other extremes of financial resources, has gone up even more over the past three decades.

So the first thing I would do is just dispute the premise. When you mentioned that you heard that when you were a college student, the data shows that average wages for a typical worker did stagnate or decline from say the early 1970s to the early 1990s. So if you were hearing this, as a lot of people were when Bill Clinton was running for President, the message was true at that time. And a lot of people are still kind of stuck there. So it’s not to say that there’s nothing to this story, but if you go back over 30 years, if you go back from 1990 to 2020, what you actually see is the stagnation story is just not right. It’s just not accurate. It was accurate for the ’70s and ’80s, it’s not accurate for 1990 to the present. And that I think is … it’s something that has just been missing from the debate.

Richard Reinsch:
Something that I’ve found, and I’d like to get your comment maybe just broadly on this, because I know you’ve encountered this in doing research as an economist. And I’m a non-economist, I’m a lawyer by training. But when I read studies of income growth, I am whipsawed by how many different conclusions people come to, or I say how many different, but different stories we might say of decline, of stagnation or of growth. I mean just help people, when people see these studies, measuring, comparing incomes, what’s generally your approach to thinking about that? What are people doing when we see consistently incomes decline?

And one of the things you talk about in the book is which deflator do you use? I’ve noticed Oren Cass, who someone who is claiming that wages have stagnated or declined, always uses CPI, but you make a claim, Scott Winship, another person who argues wages have increased, insist on using the PCE deflator, which seems to be a better way to account for how people actually navigate in the marketplace with prices. Could you talk about that some and just the difficulty of measuring income?

Michael Strain:
Yeah, it’s very difficult. I mean you have to, the first thing you have to do is define income. So what counts as income? Do you include wages? Yes. I think everybody agrees that you should include wages. What about non-wage benefits like health insurance, things of that nature? Do you include that? Do you make allowances for taxes? Do you subtract tax payments from people’s wages to compute their income? Do you add in government transfer payments? Some of those payments take the form of cash. Some of them don’t. Do you, for example, include Medicaid benefits in people’s wages? If you do, how do you value and how do you assign a dollar value to Medicaid benefits? So you have to define income. Then you have to define whose income. Are you talking about individual workers? Are you talking about households?

If you’re talking about households, how do you adjust for the fact that household size has changed so much? The third thing you have to do is account for inflation. As you mentioned, there are different ways of accounting for inflation over time. And another thing you have to do is figure out over what time period you’re interested in making the comparison. So I think you’re right that a lot of this debate among analysts comes down to this question of how do you account for price changes? That’s a difficult question to answer. What I’m trying to do in the book is move the debate away from a debate about how you measure price changes and toward a debate about what time period do you care about

Richard Reinsch:
Yeah.

Michael Strain:
If you want to say wages have been stagnant for decades. Okay. Define for decade, and define it with some precision.

Richard Reinsch:
You choose 1990. Why did you choose 1990 as the starting point for an income basis?

Michael Strain:
I choose 1990 because that was … I choose it for several reasons, but I choose 1990 because that’s three decades ago. Three decades is a long time,

Richard Reinsch:
In the life of a worker.

Michael Strain:
Yeah. In the life of a worker. When politicians and opinion leaders say wages have been stagnant for decades, I think a lot of people hear that message as referring to their own wage. When you go back 50 years, not a lot of people who are working today were working 50 years ago. I think 30 years is maybe even too far to go back. But, certainly I think you don’t want to start the comparison further back from 30 years ago. Another reason to start in 1990, is the reason I mentioned earlier, that there was this period of stagnation and decline in the ’70s and ’80s, and then since the early ’90s we’ve seen an increase.

And so, I think you don’t want to conflate those two different eras. You want to look at, if you want to go back 50 years, fine. I think you’ve got to say wages were stagnant or declining in the ’70s and ’80s, and then from 1990 to the present, wages have been increasing. I don’t think you want to conflate those two eras, because wages behave so differently during both of those eras.

Another reason to start in 1990 actually relates to the inflation question. The further back in time you go, the harder it is to account for price changes. So if you look at, you mentioned the CCI and the PCE. If you look at those two theories, and there’s a graph in the book that shows this, if you look at those two different ways of accounting for inflation, they actually agreed quite a bit over the last 15 years. They even agreed quite a bit over the last 30 years, whether or not you use the CPI or the PCE, you still find that wages have not stagnated for the past three decades. But the further back you go, when you try to make these comparisons starting in 1970 or 1973, the further back you go, the more it matters which price index you use. So, that’s just another reason not to try to go back too far.

Richard Reinsch:
I noticed in his response to you, you had two responses in the book. One from E. J. Dionne, the well known progressive columnist in the Washington Post, and also Henry Olsen, also now of the Washington Post. But, more of a conservative populist writer. Dionne points to your use of 1990 and says you’re cherry picking. And that the relevant comparison is the early 1970s. So I think, why does he want to insist on, I think he says 1973, what’s so magical about that year?

Michael Strain:
Well, look, I mean I think he’s just wrong. And you’re right, E. J. and Henry Olson offer response pieces that are in the book. And I think that’s great. Because it gives the reader the opportunity to see some really interesting and thoughtful counter-arguments to my argument right there in the book. And then I conclude the book by responding to both Henry and E. J. So I think that’s a great part of the book. And the editor, I’m sorry, the publisher wanted to put that in the book. And I think it’s really terrific.

People want to start in 1973 for a bunch of reasons. I mean, that’s when wages started to decline. The decline I mentioned that starts in the early ’70s and goes through the early ’90s, the stagnation and decline, that starts in ’73, that’s one reason. People are concerned about … a lot of people want to kind of link this to the rise of income inequality. And so you see people want to start in 1979. A lot of it, I think is just people think about the kind of post-war era, the ’50s and ’60s as ending, that era kind of ending in the early ’70s, so people start the comparison in ’73 for that reason as well. We had oil price shock. I mean, there are a bunch of reasons. And look, these are good reasons. But, for exactly the same reason that I think it makes sense for analysts in the 1990s, let’s start your calculation in 1973 rather than in 1950. I think it makes sense for analysts in 2020 to start the calculation in 1990 and not in 1973. I think we just shouldn’t be conflating information from these very different eras.

Richard Reinsch:
On just this point, you argue, and I think this is what people will read in the book and might think, no, that can’t be right. So you say people in the 20th percentile of wage earning, meaning 80% of the people make more money then, we’re in the 30th percentile, have over the last 30 years in America, have seen their wages grow. One question I had for you, yes, but if that involves a lot of transfer payments, which is something we can really hang our hat on?

Michael Strain:
Some of it involved transfer payments. That’s true. Not all of it. And I think you’re right, it’s counter to the narrative that you hear and I would encourage people to buy the book and look at the data. It’s right there.

Richard Reinsch:
I’ve had that question and one thing about transfer payments, of course that’s the decision collectively that’s been made as to how we’re going to allocate resources. And so one has to take that into account in measuring income. But I’ve always, I’ve just thought incomes have grown but so much of that is transfer payments. Have they really grown or by how much? And then thinking about how that builds into mores and how people think of their own independence as well.

Just the wages at the 10th percentile have increased by 36% over the last three decades. At the 20th percentile they’ve increased by 34%, and at the 30th percentile they’ve increased by 29%. So that’s not stagnant, that’s significant growth.

Michael Strain:
Just to be clear on that, you can look in the book at the statistics on market income. So that doesn’t include transfer payments. And you see that’s gone up quite a bit for households at the bottom of the income distribution as well. So your point is well taken, that we want to look at at income that people earn in the market and we also want to look at income that people receive from whatever source, whether that’s from income earned in the market or whether that’s from government transfers. And I think it makes sense to know what’s going on with both, but both have gone up, and that’s not the common narrative for sure. But if I can find the chart in the book, which I’m looking at right now, I’d be able to tell you how much.

Richard Reinsch:
And you also make the point as well, which people don’t realize how expensive their healthcare is for their employer. Of course their employer’s getting a tax break for providing it, but that also is a part of your income and you may not think about it, but it goes up generally every year. It has to be accounted for at some level when you think about compensation. Most people don’t think about it in that way.

Michael Strain:
That’s correct. So I found it here. I’m sorry it took me a minute, but wages, so not income, just the wages at the 10th percentile have increased by 36% over the last three decades. At the 20th percentile they’ve increased by 34%, and at the 30th percentile they’ve increased by 29%. So that’s not stagnant, that’s significant growth.

Richard Reinsch:
Question on labor share of productivity, you also see this: people argue has been stagnant or declining and the conclusion they draw from that is well capital or employers are cheating them or not sharing the rewards with them at some level and this is unjust and should require intervention by the government. E.J. Dionne makes that argument in his response to you. How do you respond to that?

Michael Strain:
I think it’s a more complicated issue than I think a lot of people make it out to be. If you actually look at what’s driving that particular industry, and there’s a lot of churn beneath the headline statistic, I think what matters more is what’s the relationship between productivity and pay. If you see productivity at the macroeconomic level go up, does that translate into worker’s pay going up? The answer from the most recent and best economic evidence is yes. There’s a good paper written by Larry Summers who, or coauthored by Larry Summers, I should say, who was Bill Clinton’s treasury secretary and the top White House economic advisor to President Obama and is also an eminent economist. And he concludes in a paper published about a year ago, that the relationship between productivity and pay are very strong. After I published the book, a new paper came out by Ed Lazear at Stanford where he used a different methodology but came to exactly the same conclusion. And of course basic economic logic suggests that the same thing should be true as well.

Richard Reinsch:
Well, markets would have to be non-competitive in significant sectors of the economy for it to be true, I would think.

Michael Strain:
Yeah. I think that’s right. And again, if you just look at the evidence, productivity and wages are very strongly related in a statistical sense in the data. And how does that relate to this? That suggests that workers do receive the fruits of their labor. That suggests that hard work does pay off. These are key tenets of the American dream and the evidence shows that they’re alive and well.

Richard Reinsch:
Talk about another thing that comes up a lot is income mobility. You talk about that in the book. Many arguing that there’s much greater mobility in the Nordic social welfare democracies, perhaps America should look more like those countries. That’s been a theme. Of course, it’s been a theme of the Bernie Sanders campaign. Is there mobility amongst quintiles of income in America or is there still mobility but it’s gone down in recent decades?

If you were raised in the bottom 20% and you’re in your forties today, 86% of you have a higher household income than your parents did. So that, to me, suggests that there is significant upward mobility in the United States.

Michael Strain:
So I spent a good amount of time on that question in the book and when you just look at the basic question, do people grow up and end up having a higher income than their parents did? That’s the question that people want an answer to when they’re thinking about the American dream. Are my kids going to do better than me? And what the data show… So what I did was I found a bunch of people who were in their forties today. I got a data set that had… I represented the sample, a statistically valid sample of people who were in their forties today, and I computed their income. And then I looked at their parents’ income and I computed their parents’ income. So I’m matching individual people with their parents and I say how many people who are in their forties today have a higher household income than their parents had when their parents were in their forties, when their parents were the same age? And the answer is about three quarters. About three quarters of people in their forties today have a higher household income than their parents did.

Then I say of all the people who were raised in the bottom 20%, how many of them, how many of those 40 something year olds today have a higher income than their parents? 86%. If you were raised in the bottom 20% and you’re in your forties today, 86% of you have a higher household income than your parents did. So that, to me, suggests that there is significant upward mobility in the United States. I also looked at wages. So that’s household income, but I wanted to say how are people doing in the labor market specifically. And so I compared male workers who are in their forties today with their fathers, how much money are men earning today in the labor market, and how does that compare to how much money their fathers earned in the labor market. And there, again, the solid majority of male workers in their forties are earning more money than their fathers did. So it’s just inaccurate to argue that America is not characterized by upward mobility.

Again, 86% of people born in the bottom 20% are out-earning their parents. I wish that were 100%, so we could have more mobility. We shouldn’t be satisfied. We should have public policy that helps even more people to have higher incomes than their parents did at comparable ages. But on the question of whether or not America is economically mobile, upwardly mobile or not, I think the answer really is that America is an upwardly mobile society.

Richard Reinsch:
Do you find, just thinking, and maybe you could talk a little bit more about how we get these quintiles of income, do we find though people who are, say in the second quintile or the third quintile, which would be working class or middle-class, moving up into, say the top 20%? And I guess my sense is most people answered the question, I don’t know most, but I’ve read a lot, people are concerned. Don’t think their children will do better than them by very large numbers. Is there a sense of that? The data support a sense of, well, if you’re in the top 20%, top 10% it’s pretty fixed and there could be a lot of institutional reasons for why that is. Things need to work better, but that there’s no longer movement along those lines.

Michael Strain:
Yeah, so I look at that too. And what I find is is that even by that measure you still see a good amount of upward mobility. One thing you want to know about is the rags to riches stories. So if you’re born at the bottom, can you make it up to the top? And I find that about seven percent of people who were born in the bottom make it to the top. That’s, I think, actually very good. You certainly wouldn’t expect everybody who was born in the bottom to make it to the top.

Richard Reinsch:
No.

Michael Strain:
And so what you would expect, I think, is that that kind of a rags to riches story, it should happen often enough that it’s not shocking when we see it, that it should be something that happens regularly, but not often. And so then the question is, does that seven percent suggest that that is true for America. And I think it does. If seven people out of every 100 who were raised in the bottom make it to the top when they become adults, to me that suggests that the rags to riches component of the American dream is alive and well. Concurrently, about eight people out of every 10 who were raised in the top end up at the bottom. So there’s a lot of downward mobility on that front to. So I don’t think we’re too sticky.

Industrial policy really isn’t the solution to any problem that America is facing. First of all, it doesn’t work. We’ve seen that President Trump’s trade war has actually reduced manufacturing employment rather than increase it. So, not only is it raising consumer prices for the rest, not only is it hurting export intensive industries like agriculture, it’s not even helping manufacturing.

Richard Reinsch:
And your book is exclusively an economics book. There’s a lot more we could say about why mobility may not be what we want it to be, as well that goes to other actors. Thinking about though, the deaths of despair, the opioid crisis, the China shock doctrine. Many people do link that-

The China shock doctrine. Many people do link that academics with a lot of data papers, think about the China shock paper that now goes by the acronym of the first letter of the author’s last name’s, ADH. That sort of when China joins the WTO, you see numerous communities in America affected by a decline in manufacturing work, a decline in industrial work. And it has an outsize effect on particularly male earners who really aren’t able to move into these service jobs that involve, or struggle to. And then I can see that that involves a lot of human contact or personal social interactions the way service work does. How do you respond to that? Is the response that we see from Marco Rubio and now from Josh Hawley of moving towards an industrial policy that other nations adopted at prior times? Is that just sort of a thing we should do just to try and help compensate those disruptions in the market?

Michael Strain:
No, I don’t think so. I think industrial policy really isn’t the solution to any problem that America is facing. First of all, it doesn’t work. We’ve seen that President Trump’s trade war has actually reduced manufacturing employment rather than increase it. So, not only is it raising consumer prices for the rest, not only is it hurting export intensive industries like agriculture, it’s not even helping manufacturing. So it’s not going to work. And I think that we need to be more optimistic about the ability of American workers to thrive in other industries. We need to have good training programs and things of that nature to help people do that. But American workers are perfectly capable of working in many different industries and a government program trying to micromanage that is going to end up doing more harm for workers than good.

Richard Reinsch:
Yeah, as I’ve looked at the data, the China Shock Doctrine and you do see the decline of manufacturing jobs. Of course, manufacturing jobs have been declining, as you know, going back to the 1970s. But at the same time from the 1970s to 2016 we’ve had a rapid, massive increase in jobs. So it’s not the case that there are no jobs, there are different jobs, new jobs that have been created.

And I think that’s right. And this may be a question we can end with, a deeper question. Part of it is though, do Americans still see themselves as having primarily the opportunity to take charge of their own lives to care for themselves? Or is this some sort of acceptance in America that I’m not a free agent all of the time? That things have been done to me that I can’t make sense of.

Thinking about the title of your book. The question that I’ve thought about, I don’t know if you have, have enough Americans at this point, have they come to accept a different American dream? Egalitarianism, comfort for every hurt, government should be very active. And I think also I’ve wondered if there is just an aversion to risk, and one of the points here is the refusal of many Americans to move to where the jobs are, I think.

Michael Strain

I think part of it’s related to what we’ve been talking about. All Americans are hearing from their leaders that they can’t better their situation, the game is rigged against them. Upward mobility is a thing of the past and things used to be a whole lot better for them back decades ago than they are today. And I think one way to turn some of that around would be to stop talking like that.

I mean, first of all, it’s not true, it’s not accurate. The data tell a very different story. And secondly, it’s demoralizing and demotivating. It dims aspirations and it saps energy. The message we should be sending is that if you work hard, you can better your economic circumstances. If you work hard, you can provide for your family. If you work hard, you can create the conditions so your kids do better than you and the economy is changing constantly, of course. New opportunities are being created, those opportunities are opportunities you can capitalize on.

We’ll have good government policy to help you do that. But you are not a victim and you have agency and you have the ability to better your situation, and you have a responsibility to do so. That’s the message people need to hear. It’s true and it’s motivating. So I think if we could get back to talking like that that would go some way to solving the broader problem.

Richard Reinsch:
Even in the Republican party, you don’t see enough politicians, or it doesn’t seem to happen in the way it once did of just endorsing economic growth itself. You don’t seem to hear that anymore and I think that’s a bad sign.

Michael Strain:
Yeah, I think that’s right. I think that’s unfortunate. And it’s short sighted. If we really want our kids to have a better life than we do, to do better than we’re doing. Seemingly small changes in the rate of economic growth accumulate a lot over a 20 or 30 year period. And so we should be all in favor of growing the economy. I mean, growing the economy is not just some abstract thing. Growing the economy means more opportunities for people, a higher standard of living for people, faster wage growth, faster income growth and the ability to provide more for themselves and for their children. It sounds abstract but it’s not.

Richard Reinsch:
Yeah, I mean what’s the difference over 50 years or 25 years of 3% growth, versus 1.5 or 2% growth? It’s a massive difference. And I suppose also one problem, and you acknowledged this productivity growth itself has been flat or has not increased that much in the last few decades. Industrial policy does little to solve that problem.

Michael Strain:
Yeah, no. Industrial policy would make that problem worse. Industrial policies are predicated on a false notion. America has benefited from trade with China. American workers has benefited from trade with China. Certainly it’s the case that there’s been an upside and downside to it, and it’s hurt some communities quite badly.

But on the whole those communities have come back strong. Not all have, but certainly most have. And if you look at the other things that trade with China has done, export opportunities, employment in export intensive industries and the whole holistic set of effects, if anything, trade with China has increased the demand for workers not decreased it. And it’s helped make people’s paychecks go further by lowering prices. And on the whole it’s been a good thing and that part of the story isn’t told.

Richard Reinsch:
Let’s hope that doesn’t get lost amidst the current anti-free trade narrative that is only going to increase with the coronavirus crisis, I’m afraid. Michael Strain. Thank you so much for coming on to talk about your new book, The American Dream is Not Dead. I appreciate it.

Michael Strain:
Thanks for having me.

Crisis of the Roberts Court Apr 01, 2020

Richard Reinsch:

Welcome to Liberty Law Talk. I’m your host, Richard Reinsch. Today we’re talking with Michael Greve about his new essay in National Affairs entitled “Is the Roberts Court Legitimate?” Listeners of Liberty Law Talk and readers of Law & Liberty will know Michael Greve well. He’s been with us from the beginning, since 2012. He was one of the first podcasts on his book The Upside-Down Constitution. Greve is professor at the Antonin Scalia Law School, author and editor of a number of books, and a great writer and someone who can make you laugh while also making you think. I’ve appreciated his contributions over the years. Mike, welcome to the program.

Michael Greve:
Thanks Richard.

Richard Reinsch:
Mr. Greve, the title, “Is the Roberts Court Legitimate?”. Now, apart from protestors dressed as Handmaid’s Tale actresses shrieking in front of the courts in Washington in protest, Justice Kavanaugh, et cetera, who says the Roberts Court might not be legitimate?

Michael Greve:
The first thing, and you’ll forgive me, but those crazies, the slightly more unhinged members of our public discourse, they in fact have champions in the legal academy as well.

Richard Reinsch:
Names available upon request or …

Michael Greve:
Don’t get me into trouble here. Some of the attacks in the blogosphere and even in law reviews have been dismayingly vehement and slightly unhinged.

Michael Greve:
Underneath that, it seems to me there is a real question about the public credibility of the court at large. Both Justice Gorsuch and Chief Justice Roberts as well as a large number of appellate judges have begun to worry about the talk and the atmosphere and the public debate that has begun to surround the court and the federal judiciary in general to the effect that more and more people believe that the federal judiciary is just one more combatant in the political debate as distinct from, well, an independent judiciary that protects and safeguards the Constitution.

All that stuff has become corrosive. There are legitimate worries about what Richard Fallon, for example, a highly regarded professor at Harvard, has called the sociological legitimacy of the Supreme Court. That is to say its public acceptance and credibility. That’s what most of the essay is actually about. It’s not the crazed attacks.

Richard Reinsch:
On this point, the Roberts Court, I remember just in my lifetime, criticisms of the court are frequently said to be questioning its legitimacy. One thinks of Bush v. Gore and the aftermath of that. I think about Justice Sandra Day O’Connor trying to respond to criticisms of the court and implying they were questioning the court’s legitimacy. This isn’t exactly new, as you know.

Many listeners will say we’ve been wondering about the court for a long time, particularly conservatives, particularly on rights claims where any rights claim that’s been accepted by the intelligentsia, it’s preordained, the outcome when it comes before the Supreme Court no matter how many appointed Republican appointed justices are on the court.

When you say Roberts Court, what is it about this court that people are questioning?

Michael Greve:
First of all, that’s a terrific point. I am actually somewhat critical of the high-mindedness or of an attitude that says any criticism of the court runs the risk of undermining its legitimacy. At some level it’s good to have public criticism of the Supreme Court.

What strikes me as new and a little bit worrisome is several things. First of all is just the vehemence and the personal nature of the attacks on individual justices. Again, that is not completely new. We’ve had these episodes before but it’s reached levels that, I think, are troublesome.

The second thing is that a lot of the critiques of the court that are now being brought forth have no constitutional or legal reference point at all. It’s just whose ox is being gored. While that is always an undercurrent in the debate, the complete disconnect from any kind of serious or halfway serious legal argument, that worries me as well.

The third thing is simply something that has nothing to do with the court per se. It’s just the deep division and polarization of our politics in general. That makes the whole debate more corrosive and troublesome. It increases the difficulties for the court now and going forward, it seems to me.

Richard Reinsch:
Is much of this about Donald Trump, the Kavanaugh appointment, the Kavanaugh battle, the desire to de-legitimize what could be years and years of rule by a conservative majority on the Supreme Court that has not been seen in quite some time and the desire to lessen legitimacy coming from that, particularly on these questions of abortion, religious freedom? Perhaps we see the court for the first time since Roe v. Wade not expanding individual rights every term in some way. All of that strikes me as part of this.

Michael Greve:
Yeah. I think there’s a great deal to that. My sense is that we would have had that problem even with a president who is somewhat more within ordinary American politics and standards of political decorum. Any conservative president would have appointed justices who are very much like Justice Kavanaugh and Justice Gorsuch. I don’t think there’s any doubt about it.

The more structural, serious issue, which you alluded to is, and this is something that is rather unprecedented I think in American politics, you are looking at a court that will have a conservative majority very likely for quite some time in a very, very divided country that is divided, so a 50/50 where either party may gain control of the White House and of the Congress at one time or another.

It’s a court that has an identifiable political coloration in a very divided country. That’s something new and something worth thinking about. I’m sure that that is on the justices minds for much of the time.

Richard Reinsch:
You have this term you use in the essay, “the court’s latent legitimacy.” Talk about that and perhaps the waning of that latent legitimacy.

Michael Greve:
I didn’t make that up. It’s the political scientists.

Richard Reinsch:
So they made it up.

Michael Greve:
They made it up, yeah. What they mean by that is if you look at public opinion polls, Gallup polls and a lot of other polls, approval of the court, confidence in the court correlates, obviously, at some level quite highly with partisan affiliation. Currently, Republicans are very high on the court and have a lot of confidence in it, and Democrats not so much.

What political scientists mean by latent legitimacy is an undercurrent of public sentiment that yeah, we trust that these guys and gals on the court will by and large try to do the right thing and enforce the law as they see it even if we don’t agree with this, that or the other decision that comes along so that the court doesn’t constantly have to look to the partisan implications of whatever cases before them but can have reasonable confidence that its rulings will be accepted as lawful, conscientious, and legitimate.

Richard Reinsch:
Something I kept looking for in your essays, I think John McGinness has written about on Law & Liberty a few times is how much of the court’s work isn’t really traceable to partisanship in a wide number of areas where it’s really hard for someone to look at this and think there’s an ideological outcome, that there is, in fact, real judicial craftsmanship going on. You talk about that some later on in some cases. Do you see that, that there’s a huge mis-story here and what we really just see are a couple of opinions in June every year?

Michael Greve:
Yes. That’s my strong opinion. Justice Gorsuch has made this point repeatedly and it’s a terrific point, it seems to me. The indeterminacy in the law and the extent to which law is or can be driven by the justice’s ideological intonations is grossly overstated. There are hundreds of thousands of cases rattling around in the federal judiciary. Relatively few of them are appealed to Courts of Appeal.

When they are, even those decisions are mostly unanimous. When they get to the Supreme Court, which due to its discretionary dockets, picks cases where lower courts have disagreed or cases that are genuinely difficult, even then you get a ton of unanimous or near unanimous rulings, cases in which the justices don’t vote or rule in an expected way.

It’s only a relative handful of highly visible cases over really incendiary issues where those kinds of things break down. When you look at the tragedy, so to speak, of our immobilized political discourses, of course, people then focus on those particular cases and that drives public perceptions of what law and the Supreme Court and the federal judiciary are all about. That’s a gross and wild misperception, and it’s hard to counteract

Richard Reinsch:
I suppose the exceptions prove the rule because the nature of politics is to rule, to command, to order, and reshape a society. Some of these opinions do do that, particularly over time. They shape the way we think, live, talk, what we think we can say, what we think we can’t say, think. All these sorts of things come out. I suppose in a way it’s a small part but it’s really the biggest part, it seems to me.

Michael Greve:
Yeah. I don’t deny that at all.

Richard Reinsch:
You make that point at one point in your addressing Richard Fallon. You’ve already mentioned the Harvard Law professor who wants to lessen the power of the court but except not over rights cases.

Michael Greve:
That’s one major or one theme of this essay. What the Supreme Court’s rights jurisprudence over the past several decades has done is simply turn rights into trumps and instruments of interest group and identity politics. There’s no easy way out of that. My advice to the court if it wants it and even if it doesn’t want it is to tread lightly in those domains.

As an initial matter, for example, you can have all sorts of opinions about same sex marriage but that’s mostly water under the bridge. It seems to me a huge reliance interests at stake now. It would be not a good thing for the country, let’s put it that way, if the court or somebody else were to reopen that particular can of worms.

This is true of rights, debates, wherever you look. They’re mostly zero sum games. They’re so now intermingled and so closely connected to identity politics and interest group politics that the Supreme Court is just superintending compromises among those groups. That’s by and large not a good thing. It’s a very, very difficult arena where I think the court ought to tread lightly.

What I have in mind is, and what makes me a little more hopeful is that I think the predominant theme of the Supreme Court’s jurisprudence now and going forward is the courts and the judiciaries relation to the executive. That is an area where it’s not zero sum and where interest group coalitions and constellations are a lot more fluid, where there’s a lot more room to do productive work in the sense of reconstitutionalizing American politics to some extent.

Richard Reinsch:
I want to get to that. I want to get to that in a minute because there’s a lot there. I also want to think; one, about Congress and the court. You’ve written on that. And also this term you introduced and maybe we’ve been talking about it, “constitutional rot.” Are we in danger of constitutional rot?

Michael Greve:
Yeah. There has been a lot of agitation. We’re having a constitutional crisis. You read the newspapers, and this has come up. Lots of people, law professors and politicians and bloggers and pundits …

Richard Reinsch:
Whose ox is getting gored? We’re having a constitutional crisis.

Michael Greve:
The various fears and I fear this will come up again in this presidential election. The country is coming apart and it’s a constitutional crisis. I want to resist that a little. To me a constitutional crisis is tanks on Pennsylvania Avenue and we’re not remotely there.

What I think is worrisome and worth thinking about this gradual disintegration of constitutional norms that were once taken for granted by and large observed by partisans on both sides because they figure, look, one of these days we may lose an election and then we’d want our opponents to treat us with respect. There’s some value in having those constitutional norms obeyed and preserved.

A lot of those unwritten small c-constitutional norms have I think eroded over the past decades and that’s not a good thing. That’s what I’m a little bit nervous about.

Richard Reinsch:
The constitutional rot question. Let’s talk about Congress and how that affects your analysis.

Michael Greve:
To borrow a phrase from Yuval Levin, Congress is a platform, not an institution. It consists of 535 political entrepreneurs. It has become immobilized to a dismaying extent. There are lots of examples of this. The president’s tariffs. Everybody understands that the unbelievable amount of discretion that the president enjoys in imposing tariffs on just about anything and anyone for any reason he sees fit-

Richard Reinsch:
And statutorily …

Michael Greve:
You ought to be able to cobble together some bipartisan coalition that says, “No, wait a minute. This is not a good idea. We ought to put some limits on it.” Apparently, it can’t be done. That stuff is being litigated.

The same is true over the diversion of funds or whatever you want to call it, the reallocation of funds for building a wall and on and on and on. While the executive motors on, Congress sits on the sidelines, and that’s not a good thing.

Richard Reinsch:
You mentioned a case that was a big deal and still is from, what, six years ago, King v. Burwell, five years ago, on the creation of these healthcare networks which by statute could only be created by the states but were created by the federal government and the Supreme Court blessed it. Very strange opinion. You note that one of the assumptions you could say that the court had there was this is a mistake, but the Congress wouldn’t fix it so they had to.

Michael Greve:
Right. That’s a good example. Look, during the oral argument, this came up. General Don Verrilli, who was then the solicitor general, was faced with questions along the lines of, look, if the statute is misshapen, it’s not our job [to have] Justice Scalia fix it. I think Congress might want to fix this. General Verrilli says, “Yeah, well, this Congress.”

The courtroom laughed. That included a number of illustrious senators and congressmen and congresswomen who were in the audience there. I didn’t find it amusing at all quite frankly. That’s a breakdown of the system.

We used to have this image of the relation between Congress and the court. It’s a dialogue. The court interprets statutes as written. If it gets it wrong or Congress thinks it gets it wrong or sees some reason to fix it, Congress will come back and will, in fact, fix it.

It’s very hard to have a dialogue with an actor that’s mute. That puts enormous pressure on the court, it seems to me. There’s so much at stake in every single statutory case. Not cases that involve grand constitutional questions. Those have a different configuration, but statutory cases where the court is increasingly tempted to sort of say, “Let’s rewrite this statute. Let’s fix it on our own because Congress can’t be trusted to do anything about it.”

Richard Reinsch:
One, to state the obvious, the separation of powers idea from the founders assumed a certain amount of competition and pushing among the branches, between the branches. If one isn’t pushing or competing, then the other two branches can also see, not just a, “We have to step in and correct this” but “We must” and it’s good that we have to do it. You see those dynamics get altered in a negative way.

Michael Greve:
Look, that’s obviously a very central problem of American politics, probably the central institutional problem. Lots of smart people have begun to pay attention to it. That’s all to the good. But everybody realizes that that is a long-term project. For the foreseeable future, we’re stuck in this constellation where the game that really matters is between the White House and the Court.

Richard Reinsch:
Thinking here, so we go to the absence of Congress, you suggest, you outline one feature of the constitutional rot is the incredible amount of power in the executive branch and the administrative state. You note, these are problems the court will also have to deal with. That also builds on this Congressional problem and the way they design and craft statutes and allow for enormous amounts of power like what you were talking about earlier, the incredible amount of power the president has to enforce tariffs.

Even, you note in the essay when Donald Trump called on American businesses to remove their operations from China, many people said how can he say that. He doesn’t have the power to say that. He’s just blustering. You cite William Galston, that perhaps he did have the power statutorily to say that, which is incredible. With regard to this executive power issue, that is a way perhaps the court could restore not only its legitimacy but repair constitutional rot, what path forward do you see there?

Michael Greve:
Let me put it this way. Even that is an enormous problem for the court, in particular, under this administration, but I don’t think the situation would really change under the Sanders government. The problem is this. With the executive so powerful, the court runs a risk in those kinds of cases that involve relations between the judiciary and the executive.

To be seen as either caving in to an overbearing executive or else as torpedoing [the] goodwill of the people. That is to say we now have this plebiscitary presidency. It’s something close to a coup d’etat if the courts force the president in a really big way on some issue that really matters. That’s a very, very difficult position for the court to be in. You see this in lots of cases involving high visibility issues from immigration to Congress’s authority to issue subpoenas to the president and on and on and on.

That’s a reason to be nervous. The reason to be a little bit confident about it-

Richard Reinsch:
Let me ask you this, nervous because you don’t really think the court could act in such a way to thwart the executive or whichever way it acts, it’s going to be seen as partisan and just contribute to the problem you’re describing.

Michael Greve:
There has been alarming rhetoric it seems to me surrounding the court and its relation to this administration and the president himself has not been particularly helpful on this, quite frankly, for example, in suggesting that certain justices should recuse themselves from cases involving his administration. There have been similar scurrilous suggestions from the other side. None of that is very helpful. All of that is, to my mind, playing with fire.

The one thing that gives me a little confidence and reason for hope is that our politics is so closely divided and at the same time, the justices, most of them in any event, can expect to be around and on the court for quite some time.

Even if they wanted to play political games and be very tactical about their decisions, they can’t afford to do that because they always have to think about “how will the rule or the rule of decision that I announce today play out under a different administration in a different political context and environment?” It seems to me that that is an opportunity to re-introduce a somewhat more long-term perspective and orientation into American politics and institutional politics.

Richard Reinsch:
You’ve taken the position in the past that there’s very … not very little, that these grand questions of administrative state power that conservatives have been preoccupied with now for decades, ending Chevron deference, say, the court really could end Chevron deference but in a way it wouldn’t really matter because the administrative state is so large it’s still going to find a way to do what it wants but with limited oversight from the courts. Are you now revisiting that with this essay or are you saying this is the best we can afford given current conditions?

Michael Greve:
No. What I criticized in those writings that you alluded to is the preoccupation with Chevron indeference canons. There are deeper issues about the separation of powers and the structure of the executive branch and on and on and on that would really make a difference and that the court could attend to.

If you look at the current docket and the cases that rattle around in the cert petitions, there are serious questions about the Consumer Financial Protection Bureau and its structure. There are serious cases about the enforcement authority, especially of financial agencies, the CFTC and the Federal Trade Commission and so forth. They don’t directly involve Chevron or judicial deference at all but they are really, really meaningful in terms of what is the executive allowed to do by way of messing around with people’s livelihood on a daily basis. It’s on those issues that I think there is some real cause for hope.

Richard Reinsch:
You do talk about a recent case which you say may have, without naming it as such, brought our deference to a heel, that being where agencies can interpret their own regulations if a question is presented. Talk about that maybe as another path for what you see for the court limiting the executive branch.

Michael Greve:
What that case is about is …

Richard Reinsch:
The Kisor case.

Michael Greve:
What the Kisor case is about is should agencies get judicial deference, that is to say when they interpret their very own regulation. This has been cause célèbre in the law reviews for quite some time and much discussed pro and con.

The reason why I mentioned that case in particular is it’s, to the larger public, unless you’re a law dork, you don’t know anything about it and you have no reason to know anything about it. But what’s striking about the case is the mere unanimity. The votes were divided in the usual fashion, one might think. But the fact of the matter is that the liberal justices severely pulled back on our deference to the point where it’s not really worth having anymore for agencies because it’s so hemmed in.

That is part of a re-think. I hate to sound partisan about it but what was dismaying about the Obama years and the Supreme Court’s jurisprudence in this area was that the liberal justices were just completely in the tank for the administration. That wasn’t a good thing. In a weird way, the Trump administration has, I think, brought it home to a lot of people that there are two sides to it. There may be a real problem in giving the executive that much leeway, and that’s a good thing

Richard Reinsch:
On a separate note, I know, this essay, you’re focusing on the Supreme Court. What about all the federal district courts, I think, acting, and you’ve read about this on Law & Liberty, rashly to thwart Trump executive policy with a single district court issuing a nationwide injunction to stop the implementation of a policy. How do you see that playing out here?

Michael Greve:
That is a disturbing phenomenon all by itself.

Richard Reinsch:
Citing anything, is it pretextual reasons or things that the president said on Twitter, etc., to support their judgment?

Michael Greve:
Yeah. I don’t think that’s a problem with [the] good judiciary at large. It’s a problem with the vein [in] which these kinds of cases are being litigated. Highly organized litigants frequently state they know their just judges, so to speak. Then they can go to four, five favorable district courts and the administration has to run the table and they have to win only once to get a nationwide injunction.

What that does in turn and has done in turn is to compel the administration to seek rather extraordinary relief from those kinds of measures. That’s what Justice Sotomayor complained about, which is permanent emergency appeals to the United States Supreme Court. She has a point there. That shouldn’t become a habit. On the other hand, you can see why the administration feels compelled to do it because there is this larger pattern out there. My hope and my general sense is that slowly, slowly, slowly the Appellate Courts are getting this under control.

Michael Greve:
And that district courts will slowly but over time will get the message. It’s a disturbing thing to my mind but not something that warrants any great alarm. The Supreme Court frequently has monitoring problems and enforcement problems in making sure that lower courts don’t step over the line. There’s just one of those occasions, and it’s overloaded with partisan hype and politics but it’s not something that the Supreme Court and the Appellate Courts can’t get under control. I expect that they will pretty soon.

Richard Reinsch:
It seems Chief Justice John Roberts, and maybe you can help me describe it, but the way his jurisprudential reasoning to decide cases on the smallest grounds possible to now cast forward with new doctrines or new scope of reasoning, something like that, that could be useful here also in writing in the executive state or not. What do you think?

Michael Greve:
Yeah. You can view that from at least two vantages, I suppose. On the one hand, you can say, look, there’s way too much of tactical maneuvering there and that on its own threatens to undermine the Supreme Court’s legitimacy. Ilya Shapiro from the Cato Institute has made that point repeatedly. That’s just one example. There are lots of people who share that view.

On the flip side, one has to acknowledge; one, that the chief is operating in a very, very difficult environment; and that, two, several of his decisions have been small steps but steps in the right direction.

Richard Reinsch:
No, I was just going to say a slow recovery of legitimacy maybe, moving carefully.

Michael Greve:
Yeah. There’s a case several years back. It’s called Free Enterprise Fund. It has to do with the president’s power to remove inferior officers. That’s John Roberts opinion. Nobody at the time believed that this was any big deal but lo and behold, here it is. In the ongoing controversy over the Consumer Financial Protection Bureau, that case looms very, very large and it’s the starting point of any serious brief on that particular issue. That’s an example.

On some issues that come quite readily to my mind at least, the chief has been strikingly firm and insistent. That’s particularly true with respect to broader issues of the separation of powers.

Richard Reinsch:
I want to end. There’s a section, the last section of your essay, an Executive Under the Law. You quote from certainly one of the more famous cases in the court’s history, Youngstown Sheet & Tube Co. where you say has a lot of similarities to our present situation regarding Congress and the court and the executive and the political environment there.

I’ll just read for those listening. This is from one of the opinions because there were how many just separate opinions, six in that case?

Michael Greve:
Yeah, six.

Richard Reinsch:
Six. Justice Robert Jackson …

Michael Greve:
For the majority.

Richard Reinsch:
For the majority. I’ll read this, then I’ll let you comment on why you ended with this opinion. I found it alarming, interesting at the same time. “Men have discovered no technique for long preserving free government except that the executive be under the law. Such institutions, speaking of constitutional institutions, may be destined to pass away but it is the duty of the court to be last, not first to give them up.”

Michael Greve:
That’s from Robert Jackson’s opinion in the case which is the most celebrated of those opinions. The reason why I mentioned that case or why I went back to it and why it actually made me think is, first that is perhaps the most, short of Marbury v. Madison, it’s the most dramatic confrontation between the court and the executive in our history.

Michael Greve:
What the court was afraid of … This involved President Truman’s seizure of the steel mills during the Korean War. What the court was afraid of was-

Richard Reinsch:
When he sees the steel mills, literally government agents went on private property and were closing it down or were about to?

Michael Greve:
They had to break a strike. President Truman instructed his cabinet officers, “Look, keep the steel mills open. Bring the workers back to work and let’s go. We need the steel for the Korean War.” That was the situation. In many ways it bears some resemblance to the current situation. The reason why the court … The Supreme Court almost never stops the executive in the middle of a war from doing anything at all. What it’ll do is make some noises, let the executive fight the war and after the war, try to pull back a little. That’s one of the things that makes this case so unusual.

The reason why they were willing to do that I think was that they thought to themselves if we permit this, if we let this go through without any legislative authority, then it’ll be impossible to articulate any firm boundaries that … legal constitutional boundaries, that will control the executive and that we cannot have.

They had all kinds of theories, none of them very convincing and compelling to my mind, why the president could not do this what he had just done. At the end of the day, they pulled the president back and it was on all accounts, or most people think, it was one of their finest moments.

Richard Reinsch:
You think coming out of that also it seems is a realization not just anything could happen but for so long … the year of this was 1950?

Michael Greve:
Yeah.

Richard Reinsch:
That for so long the executive had had its way and they had to actually pull back. You see a parallel maybe now at this time.

Michael Greve:
Yeah.

Richard Reinsch:
A rough parallel maybe.

Michael Greve:
Parallels break down, okay?

Richard Reinsch:
Yeah.

Michael Greve:
The reason for seizing on that particular case in this particular essay was to impress that, look, I don’t think the confrontation between the court and the congress is … which is what much of our constitutional law and law revolve around that that is the central issue going forward. This is around a confrontation between the executive and the court. I think that is what we’re looking at now for the foreseeable future.

Do I foresee a dramatic confrontation between the court and the executive on that scale? No. It’s much more small bore I think and will be for some time. The larger issue there, an executive that slips the legal reins. That’s the same issue and that is what I think we ought to be watching.

Richard Reinsch:
Michael Greve, thank you so much. We’ve been discussing your essay, “Is the Roberts Court Legitimate?” In the winter 2020 edition of National Affairs.

Michael Greve:
Richard, thank you.

Stuck With Decadence Mar 31, 2020

New York Times columnist and commentator extraordinaire Ross Douthat talks about our decadent age with Richard Reinsch.

Richard Reinsch:
Today we’re talking with Ross Douthat about his new book, The Decadent Society: How We Became the Victims of Our Own Success. Ross Douthat’s name will certainly not sound unfamiliar to our listeners and readers. He’s one of our most cogent cultural and political critics. He writes for the New York Times. He’s the author of a number of books, including most recently, To Change the Church, about the Pope Francis pontificate, which anticipates well, I think, many of the changes Pope Francis has brought. He’s also the author of the book Privilege and Grand New Party, which is a wonderful book that has held up well. Ross is also the film critic for National Review, which I read your pieces many times there. Welcome to the program.

Ross Douthat:
Thanks so much for having me, Richard. It’s great to be here.

Richard Reinsch:
Great. So Ross, you’re into decadence. Tell us about the Decadent Society.

Ross Douthat:
So the Decadent Society is an attempt to, in a certain way, put a name on the weird anxiety that pervades the developed world, the Western world and the United States of America, where we have this combination of tremendous wealth and technological proficiency, which makes some people argue that these are the best times in the history of the world, but at the same time a lot of discontent, anxiety and ennui, which gets manifested in everything from the sort of populist and socialist rebellions in our politics, to rising rate of depression and suicide, and deaths of despair as they get called and so on. And so the argument I make in the book, is basically that we have entered a very particular kind of civilizational state that I’m calling “decadence” and I’m using that term to mean not chocolate dipped strawberries and weekends in Vegas, though those might be part of it, but a kind of stagnation, repetition, and decay at a high level of civilizational development.

Richard Reinsch:
One of the definitions, to talk about the definition of decadence you give in the book, you build on Jacques Barzun’s book, From Dawn to Decadence, which I think came out in 2000. I remember reading it in 2001 and that book has stuck with me. It’s one of the reasons why I really enjoyed reading your book because building on Barzun’s definition of decadence, Barzun talks about moving in fits and starts, but not really getting anywhere. The Decadent Society sees no path forward and it’s institutions function painfully. Maybe talk more about that because you also dismiss a definition of decadence that on my worst days, I find myself sort of glomming onto which is weak, sort of hedonistic luxuriating, weak and unable to defend ourselves. Unwilling to see the purpose in defending ourselves and so we’ll go into the good night, but maybe talk about that.

Ross Douthat:
Right. So yeah, I am very directly borrowing from Barzun and you could see this book, in part, as a sequel both to his book and in certain ways to Francis Fukuyama’s famous book, The End of History, which came out 10 years earlier. And the combination of those two arguments basically makes the case that Fukuyama was right, in a sense, not permanently and forever, but right that Western civilization has sort of passed beyond some of its great ideological debates and entered into a period of stability, that was also in danger of becoming a period of boredom and disappointment and sterility. And then Barzun, in a somewhat similar way, made the case that this is something that happens generally to civilizations at a certain point.

That they enter into periods where their once vigorous institutions become sclerotic, where their ambitious explorations hit frontiers that they can’t necessarily explore. And for us, I think that’s the most obvious in the demise of the space age basically, that we went from a period where people imagined that the frontier was going to open further into space. And now that’s sort of left to Silicon Valley billionaires to pursue and maybe they’re getting somewhere. But there’s no cultural imagination around space travel the way there was in the 1960s. So frontiers are closed. Institutions don’t work that well anymore. There’s sort of a loss of both pride in the past and confidence in the future and it doesn’t go all the way to the definition that you suggest only because I think that people sometimes underestimate how long a decadence period can last. So there’s an assumption that because you have institutions that don’t work as well anymore because you have a loss of civilizational confidence, there must be a kind of iron logic to history where the barbarians are waiting at the frontier and they’re going to come in and put the palaces to the torch.

And of course sometimes that happens. But you can also have empires and cultures go on a long time in periods that are essentially stagnant. The Roman empire goes 400 years from its Caligulan stage to the actual demise of the empire in the West. And in our case, we’re in this sort of unusual, not sort of, this entirely unusual position of being the first true world civilization, even more so than ancient Rome. And we also have a situation where a lot of empires and countries and cultures that might be seen as our rivals maybe are actually converging with us in decadence in different ways. That they aren’t poised to leap past us. And if that’s the case, then you could imagine what I call sustainable decadence as something that lasts if not centuries, at least some generations past our present moment where I’m writing.

Richard Reinsch:
So you’re saying, American civilization spreads its corruption, it spreads its decadence to others that it touches?

Ross Douthat:
I’m saying that there isn’t … that’s the darkest way of putting it, I guess. You could also say that the modern world’s experiment has achieved things like near universal literacy and high school education for most people. It runs out of obvious sources of dynamic new growth. And once it achieves a certain level of technological proficiency, it becomes a lot harder to figure out new world changing inventions. It’s hard to come up with the equivalent of the light bulb or indoor plumbing. And so as other societies gain those things, they converge with us. So China gets richer and more educated. India gets richer and more educated, but they end up in the same place that we’ve ended up. There’s no clear line of advanced path, this particular combination of wealth, technology and a slowly aging slightly exhausted culture.

Richard Reinsch:
I want to go back, and you mentioned it earlier, your take on the end of the Space Age. You have this sentence and I’ll read it, “Since Apollo, we have entered into decadence.” Why do you pin so much on, I guess, the decline of American government’s involvement in space exploration?

Ross Douthat:
Well, so first because the timing is right, right? So I start the story in 1969, in part because that particular peak of achievement, the leap to the moon also coincided with the moment or the period when the trends that I’m describing as decadence really began in earnest. So it coincides with the slowdown of economic growth that began in the ’70s and has defined the American economy, with a few exceptional periods ever since. It coincides with the first great wave of public disillusionment with government that peaked with the Watergate scandal, but then has sort of defined the country’s relationship to its government ever since. It coincides with the beginning of the birth dearth, with the Baby Boom generation giving way to a period of the low replacement fertility that has again, extended itself across the developed world ever since.

So there’s a lot of the, at least somewhat measurable trends, I’m talking about, start in that period. So even if it isn’t directly connected, it’s a good place to start. But I do also argue that there is a direct connection that, and this is of course unprovable, but nonetheless I think it’s true that, the entire spirit of modern civilization and especially the American version of that spirit, has depended on an idea of exploration, going to the frontier as a primary or defining source of meaning. And sometimes this has strong religious overtones, sometimes it’s more secularized. But either way, there has been this sense that human beings have been given a world to explore and our societies thrive by actually exploring it. And so the moment … this is in certain ways a version of Frederick Jackson Turner’s famous frontier thesis about where he argued that the literal closing of the frontier was this signal moment in American history. And I’m suggesting that he was probably right, but in that case, the at least temporary closing of the stellar frontier was also really important.

And that the … at least some of the optimism of the post World War II era in the United States was conditioned on the belief that we were … that the frontier wasn’t actually closed that the language of John F. Kennedy, the new frontier, the language of Star Trek, the language of the 60s. The optimistic language assumed a human story that would continue beyond the earth and we haven’t found a way to do it. And then that means that we are stuck here with ourselves having fulfilled the admonition in Genesis, we have filled the earth and we don’t really know what to do next. And in that sense it’s not surprising that there is a sense of futility and stalemate in a lot of human endeavors since.

Richard Reinsch:
Do you think, when you think about that refusal, or, I say refusal, willingness to continue space exploration, do you attribute that to a failure of imagination, courage, hope, or big government? And one of the things, I was thinking of your book, and you just referenced Frederick Jackson Turner’s thesis, I mean the conservative critique of Turner is, what he’s really saying is “Yeah, the frontier is closed and now it’s government’s job to manage us. To make our society a better one, more orderly, more equal.” Those things. Is that what leads us away from the space age and that heroic rambunctious spirit that would have been true in a pre-progressive America?

Ross Douthat:
I mean, I would like to argue that it’s a failure of nerve and courage and imagination, but you also have to concede that it was just a response to the reality of this space. Which, the reason that Americans went to the frontier in the 19th century, or the reason that Spanish and European explorers crossed the Atlantic was that there were clear political and financial incentives for so doing. And it took the full flower of the Cold War and that spirit of competition to get us to the moon. And then we got there and basically discovered that, while our technology at that moment was equal to that particular task, it wasn’t equal to the kind of things that science fiction authors imagined. You know, mining on the moons of Jupiter, or terraforming Mars or anything like that.

So there are ways in which the people who said, “Well we don’t need to pursue the space program because there isn’t anything out there for us,” had a reasonable point. There clearly has to be some further leap of technological progress here on Earth to push us further into the stars. And some of that, I mean, we have made some progress. There’s the Elon Musk, those kinds of projects have improved our space life capacities in certain ways, but they haven’t been that transformational leap. So in that sense, I think it’s more the arrow probably runs the other way, where it’s first, the impediments to space travel become apparent and the view that we’ll be beyond Jupiter by 2001, to take Stanley Kubrick’s and Arthur C. Clarke’s example, once people realized that’s not going to happen, then in turn, diminishes the incentives for daring ambition, rambunctiousness.

And you know there was a lively argument, well into the late ’60s about whether the space program itself was a sensible use of resources. And if you watch the … I’m not sure if it’s in the Apollo 11, if it’s not in the Apollo 11 documentary, it might be in the Ryan Gosling movie about Neil Armstrong. They show protestors singing the song Whitey on the Moon. That’s sort of the view. Basically a Great Society view that, as you say, we need to make things equal here on earth before we go to the stars and that view then gets, in some sense, confirmed by the fact that we can’t get to Mars or build a moon base, or have a Mars colony.

Richard Reinsch:
Well, it seems to me too, supply creates demand in this sense that you give yourself a purpose. Or you give yourself a goal, an objective, a destination as a country, as to what you’re going to do and push for it. And that’s something in your book, resonated with me because I remember growing up in the ’80s and thinking, “Well, we really don’t take this stuff seriously anymore.” I remember going to visit NASA and looking inside a space shuttle and thinking, “This isn’t something we’re really going to do in a way that was true when my parents were growing up.” No one’s going to give Kennedy’s speech at Rice University now. That’s also the Cold War. I mean the Cold War is a part of this as well, but it just seems we did give up. And you know, the technological difficulties are well noted, but you know, as Peter Thiel might say, “Those are things that one could push for and try to solve if there was a will.”

Ross Douthat:
One could. Although he wrote a very kind review of my book, but he accused me of being too glib in saying that we need to start working on the warp drive because we have to recognize these immense impediments and possible impossibilities of that technology. Which is a fair point. But yeah, I think one of the arguments I try and make in the book, is that decadence as I describe it, is a very entangled phenomenon. So it’s very hard to say, “Here was the one thing that we needed to do differently to avoid ending up where we did.” So, right. Like you could imagine a president, a popular president-

Imagine a popular president, a figure like Ronald Reagan, who made a Mars mission as important or central to American government as Kennedy and his successors did with the Moon landing. But could that have succeeded given the greater technological impediments to getting to Mars, the clear absence of short term economic benefits to the mission, and the waning of the Cold War, the disappearance for a time at least of great power competition? I’m not sure. I mean, I think you can look at something like the Challenger explosion as a useful book end.

I basically say that the space age runs from Sputnik to the Challenger. I was four or five when the Challenger happened. I actually do remember it as one of my more vivid childhood memories.

Richard Reinsch:
Yeah, me too.

Ross Douthat:
But yeah, so you can imagine a counterfactual where the Challenger explosion, nothing happened. Reagan is more invested in the space program. Maybe the Cold War takes a different turn. You can spin those out, but at the same time, there are clearly powerful and sort of interlocking structural forces that have made it hard for us to just sort of go on to the stars as we imagined doing.

Richard Reinsch:
Returning to terra firma. And in your book, you then turn to the sociology, the economics, the politics of aging societies, which characterize every Western society except for, as you know, Israel. How does that factor in to decadence, the below level birth rates, replacement level birth rates, and in that factoring into who we are?

Ross Douthat:
So I mean, it’s another case of entanglement, right? Where, well, the birth rate part of it starts with a puzzle that I don’t have a definite solution for. And the puzzle is why have birth rates settled so low in the developed world, not only Europe and the United States, but even more so in the Pacific rim as well?

And if you go back 50 years to what demographers were talking about as the Baby Boom sort of ran out of steam, the view then was of course, birth rates will fall. We’re no longer an agrarian society. We have more reliable contraception. We’re seeing various professional advances for women. Child mortality rates are much lower, so you don’t have to have nine kids to have five or four survive to adulthood. But the expectation was that birth rates would settle at around what people said they wanted, which would mean slightly above replacement level of two to 2.5 kids at that sort of normal birth rate.

And instead people still say, women as well as men, that they want somewhere in that two to 2.5 kids range, but they aren’t having them. And the US was an outlier for a while. Still had replacement level fertility into George W. Bush’s presidency, but since the Great Recession, we’ve fallen off the cliff and joined Europe and East Asia.

So clearly, I mean, I’m a social conservative and a Roman Catholic, so I have certain suspicions about what the Sexual Revolution did to people’s capacities to successfully mate and marry and have kids. I think it’s reasonable to see that something has gone amiss in sexual and romantic culture that seeped into this. But there is this mystery of why the richest societies in the history of the world, where in certain ways it’s never been easier to have kids, and we have assisted reproduction to help people who are infertile and all the rest, why in these societies can’t we maintain even a replacement level of fertility?

Richard Reinsch:
I want to read a passage from your book on this point because I thought it was really well said. You say, “The facts themselves are indisputable. People reacted to the social revolutions of the 1960s first by marrying less and divorcing more and having fewer children, more of whom were born outside of wedlock. And then eventually by marrying much less, having many fewer children, and even in trends from the last two decades having less sex, period.” That is a damning indictment, I think, of our situation or searing indictment of our situation.

Ross Douthat:
Yes. And it’s interestingly different even from what the social conservatism of my own teenage years suspected. Probably the first real conservative jeremiad that I read as a teenager flirting with right wing politics was Robert Bork’s Slouching Towards Gomorrah.

Richard Reinsch:
We have that in common

Ross Douthat:
And that was a book that basically argued that the social revolutions of the ’60s were unleashing a kind of moral chaos, and the implication was that we should expect the abortion rate to stay high, the divorce rate to stay high, the teen birth rate, which had gone up in the early 1990s to keep climbing. That we should expect out of wedlock births to become the norm. That we should expect this kind of permanent 1970s New York kind of social chaos. And that isn’t exactly what we’ve gotten.

Instead, we’ve made that further turn that I tried to capture in the passage you read where we’ve stabilized things. The American society is more stable than it was when Bork wrote his book. The divorce rate has dipped. The abortion rate has dipped. The out of wedlock birth rate has finally leveled off. The teen birth rate has gone down. So in that sense, social conservatives should be celebrating except that what’s replaced that chaos is not a sort of renewal of the family. It’s not a sort of successful marriages and rising birth rates. It’s this age of a sort of retreat from sex itself in some cases. Certainly-

Richard Reinsch:
Japan.

Ross Douthat:
… from marriage, parenthood, and so on. Yeah, and it sort of we followed a trail that Japan, and to some extent South Korea, has seemed to blaze where virtual forms of intimacy substitute for the real thing, where men and women spend incredibly long periods of their lives single. And the internet has obviously entered in and interacted and driven some of it. It’s provided a kind of safe space for people to sort of enact fantasies that would be incredibly dangerous if enacted in the real world. But you can have sort of 1970s New York on your computer screen, and the real world is stable and safer, but it’s not clear that it’s happier.

Richard Reinsch:
You quote an economist I think at Clemson University, which I heard this critique when he first announced it, that the introduction of broadband correlates with the decline in sexual assaults and violence, meaning pornography itself seems to reduce sexual violence. You found that persuasive, I assume?

Ross Douthat:
I don’t want to express too much certainty because rape statistics are somewhat famously under-reported, and there’s a lot of argument and contest around their reliability. And then there are clearly a lot of ways in which the internet has enabled predation and human trafficking. But that broad trend does seem like it could be right. If you go back, as I do a bit in the book, and look at the arguments in the 1980s when you had this temporary alliance between religious conservatives and anti-porn feminists, the arguments then ran the other way. They were sort of versions of Bork’s arguments that basically porn unleashed passions, unleashed the libido in a way that would be tremendously dangerous for women especially, and would lead to this sort of looking for Mr. Goodbar, endless sort of predation in a freewheeling singles scene.

And that again, we run a generational experiment with hardcore pornography, sort of a wild diversity of pornography beyond even the imagination of the Hustler era is now sex education for tons and tons of Americans, especially American males. And you haven’t gotten that kind of epidemic of sexual violence, or you haven’t gotten a new epidemic. Instead, the evidence seems to be… My friend, Pascal-Emmanuel Gobry, wrote a piece recently, a long piece for the American Greatness website where he tried to go through the sort of psychological and medical literature on porn addiction. And most of it seemed to run in the direction of numbing and impotence as the fundamental consequences of pornography, not widespread aggression.

Richard Reinsch:
Yeah, that’s what I read. I mean, I take it, just thinking about your analysis here, and you say in the book in the late ’80s, early ’90s a lot of the things social conservatives said seemed to be coming true about the fallout from the sexual revolution, and then we found a way to manage it. Managing it, being the internet, smartphones later, drugs, various medications, and also the welfare state itself. And has been well known with the rise of this category of prime working age men who are jobless at alarming rates, the opioid deal, but also the ways in which government itself seems to support them.

And so I guess we’ve found a way to manage these problems, but yet if there is a human nature defined by love, relational capacities and needs, and these things don’t exactly go away either in the sense of what human beings need to thrive. But yet don’t find themselves in a culture supplying it, and certainly that’s true for certain populations.

Ross Douthat:
Yeah, I think that’s basically right. But I think we’re also sort of, in certain ways, the turn from the Bork era of social chaos to our era of numb social stability is relatively new. And so we don’t know what this will look like 20 years hence, whether there will be… You see among younger conservatives, for instance, much more hostility towards pornography than you saw 10 or 15 years ago. Sort of younger conservatives are less libertarian in certain ways on these issues in part because I think they’ve grown up in the world that porn has made. On the other hand, in most respects, American culture is trending in a more kind of pro medicate your troubles away direction, right?

I mean, I think the spread of legal marijuana, it may be the right move in policy terms. It may be that the costs of marijuana prohibition were just too great. I’m open to that argument. But we need to be, I think realistically, it’s another way of mainstreaming a kind of numbed, detached, chilled out approach that where people can sort of drift through what are, in certain ways, supposed to be the most, as you said earlier, rambunctious periods of their lives, just sort of hanging out and not actually getting to either the kind of entrepreneurial spirit in their professional lives or a kind of romantic and ultimately sort of literally fertile spirit in their relational lives.

Richard Reinsch:
Talk about the aging society. We were talking about one social, cultural side, but there’s also you have an economic critique as well. And I wanted to get to that and also the politics of an aging society. Because I really enjoyed your chapter on policymaking, the form it seems to be taking. So the politics of an aging society is different, much different, than Schumpeter’s creative destruction mentality.

Ross Douthat:
Right. I think that’s a reasonable assumption that older people are for entirely rational reasons, but also for reasons that I think relate literally to their brain chemistry, are more risk averse and cautious and more attached to existing institutions than are younger people. And so it stands to reason that as society gets older, it’s time horizons shrink. Its risk assessments change.

I quote the libertarian columnist, Megan McArdle, who was my colleague at The Atlantic a long time ago, and wrote a piece where she basically said, “Imagine two towns next to each other. We’ll call them Twilight City and Morningburg. And in Twilight City, the population skews towards people in their 60s, and in Morningburg it skews towards people in their 30s. And even if the two societies have exactly the same level of wealth, the same kind of technology, the Morningburg society is just going to be more dynamic, creative, more likely to take risks, more likely to make bets that can only pay off over the long haul. And the Twilight City society is going to be the reverse.”

Now that’s then I think complicated a little bit by I think some of the anxieties that older societies feel in eras where transformation seems to be happening amongst the younger generation that they can’t control.

Richard Reinsch:
You find that playing out now?

Ross Douthat:
Yeah. I think some of the politics of immigration in Europe and the US, you have older people, not always older people, it’s a little more complicated in Europe, but certainly in the US, you have a lot of older people who have voted for Donald Trump and who have been supportive of the kind of rambunctious populous conservatism because they look at the changes to American society, the fact that they didn’t have as many kids, and you have in effect immigrants often sort of as the inheritors of society seemingly instead of their own descendants.

All of that breeds a certain kind of anxiety about the future that can lead to support for at least a certain kind of disruptive populism. So it’s not as simple as old people always vote for the safest person, otherwise Donald Trump wouldn’t be president. But if Donald Trump set out to dramatically overhaul Medicare, those older voters would conspicuously not be in favor of it. And I think even the populism in Europe and the US is defined in part by its desire not to change the welfare state, right?

That’s sort of, whether it’s Marine Le Pen in France or Trump here, there’s a rejection of entitlement reform. There’s a sort of rejection of some of the more free market oriented aspects of conservatism, and that too I think reflects the age composition of the people supporting those movements.

Richard Reinsch:
Yeah, we can’t even have a conversation. I mean, the last national politician to try it was Paul Ryan around even just slightly retrenching the welfare state. I mean, that’s just a nonstarter even though we’re staring at the abyss right now. And the only thing working in our favor is that America seems to be able to borrow in an elastic capacity on world markets.

Ross Douthat:
Yes. I mean, I look at our deficits as maybe more sustainable than some conservatives do. But I think of them then in turn as sort of part of how a sustainable decadence works. That in effect, we pay ourselves to give up the illusion of continued growth, right? That we have the illusion of continued growth, because we’re rich and relatively stable, and in part because our society is older, and so interest rates are lower. There are various ways in which an aging society oddly makes deficits easier to carry. But what that then means is that we have 2% growth propped up by immense deficits. Whereas, in the 1950s, they had 5% growth with negligible deficits. And that’s a big difference, and not a sign of fundamental economic health, even if it’s something we can carry for the time being.

Richard Reinsch:
Yeah, and it’s interesting just thinking about capital, not just financial capital, but things being rebuilt, replaced, renewed, regenerated. That doesn’t seem to be happening either. In your critique, we just sort of, we’re living off preexisting lines of capital. And you also had this critique, it’s a very succinct critique, that the 60s counter culture became the culture, but built nothing. It moved, I was thinking of Gramsci, they did move through the institutions and capture them, but what did they do with them?

Ross Douthat:
Right. I mean, I think I offer a partial defense of the Baby Boomers, in the sense that I argue that they really were a dynamic and creative generation. And that we owe most of our current political ideas to sort of movements that the Baby Boomers invented, including movements of conservatism in certain ways. But, also environmentalist of the left, feminism and so on, all come out of the Baby Boomer transition to adulthood. And so do most of our cultural forms, including Rock & Roll and the Blockbuster movie and so on.

And these were real inventions. But, I think the problem is that the Boomer victory was too complete. As you said, that they, and in that sense, it’s really their parents and grandparents fault for not putting up enough resistance against this huge wave of youth culture that swept through America. So if you’d had more of a kind of creative tension between … just to take the universities, if you sort of maintained this sort of ongoing argument over what the canon should contain with the younger people arguing that it needed to change in various ways and older people defending sort of a traditional canonicity, that I think would have been much more healthy than the world we have where the idea of a canon sort of under Baby Boomer and post Boomer pressure just collapsed.

And so now universities, it’s not that universities teach Toni Morrison alongside Shakespeare. It’s that they don’t teach either. And that’s in certain ways one of the core problems with the Baby Boomer victory. But then because there were so many of them, I mean my parents included there. I mean, I obviously love and admire many Baby Boomers, but they did and do maintain this kind of weight on our society. That sort of makes it hard to do new things culturally, it’s hard as the Democrats are finding out in this campaign cycle, to nominate anyone to presidency who isn’t over 70-years-old. And we’re all still living in the Steven Spielberg and George Lucas’ imaginations even though those imaginations have run out of steam.

Richard Reinsch:
You mentioned Megan McArdle and I was thinking about when I was reading your book and you mentioned this, the Twilight City versus Morningburg, she had a great piece two years ago, where she went to Utah and she covered state government in Utah, the business climate in some of the larger cities in the state.

Ross Douthat:
Yep. I remember that.

Richard Reinsch:
And she said in talking about the families in Utah that she encountered, and she said, “This is America. This is the American dream. This is how I think America is supposed to work.” No Utah talk though from you in this book. Is Utah just too limited or is that something you don’t find convincing, or how might one extrapolate from that experience?

Ross Douthat:
No, I mean I think I mentioned Utah. I think my assumption is that there are two major spots in the rich developed world that I would say are not decadent by my definition. And those spots are the State of Israel and the Republic of Deseret, whatever you want to call greater Mormondom. And there… And some of this is just based on birth rates alone. Israel is the great outlier in terms of birth rates. It’s the only-

Richard Reinsch:
… 3.1-

Ross Douthat:
… only country with, yeah, with a birth rate, not over two, but over three. And that’s true for secular Israelis and not just the Orthodox, which is particularly striking. And then Utah represents a certain kind of religiously rooted, future oriented, large families, reasonably tech savvy kind of Americanism. Yeah. It looks like the pre-decadent America, which is why Mitt Romney, he seemed like a visitor from 1965, right? Or the year 1958, when he ran for president. You could imagine him not sort of in the control room at NASA, but as sort of a high level bureaucrat, running one of those mid-century programs.

So yeah, Mormondom is clearly an outlier. I think there are, and I think the role of the LDS Church in that culture is one reason among many why I talk a fair amount at the end about religious revivals as plausible or potentially plausible paths out of decadence. The challenge for the Mormons is that one reason they’re able to sort of maintain their culture is precisely its geographic concentration, right? There isn’t sort of a similar Catholic core or Presbyterian core in the US that reflects that kind of concentrated influence.

And there are some reasons why the Mormons have not grown at the rate that some people expected in the 1970s there. And this is true generally of right now … religious communities, especially traditional religious communities, have higher fertility rates than almost everybody else. But then they also lose a lot of people through attrition. So they sort of, they’re on the treadmill maintaining themselves without having the kind of dynamic growth that could transform their regions or the country, as yet.

Richard Reinsch:
So let’s think about how we might end and how we might renew. You kind of go through some things, global warming, socialism, this post liberal nationalist moment, and also Islam within Europe. And you sort of systematically considered each one. But I think ultimately you don’t really worry about each one. And I guess that’s consistent with your thesis, but maybe talk about that some.

Ross Douthat:
Yes. I mean, I think I spend a certain amount of time talking about possible forces that are sort of external to the world that I’m calling decadent. And that means mostly thinking about China and Islam. But the external force that I think is most likely to challenge decadence is the huge population imbalance between an aging sort of hyper decadent Western Europe and not the Islamic world particularly, but Sub-Saharan Africa, which is still growing at an extraordinary rate. And it’s totally possible that by the end of the century there will be 500 million Europeans and three and a half billion Africans. Whereas, 100 years ago there were probably more European than Africa. And that seems to me like the kind of unstable equilibrium that you should expect to lead to some kind of dramatic change, especially if climate change of some sort makes more of Africa or the Middle East less habitable and sort of drives migration.

But, I think that combination if sort of climate change and population imbalance is the most likely sort of way that a force from outside the decadent developed world could transform at least the European part of it. And then internally, my assumption is that you need something somewhat disjunctive. You can’t just incrementally go forward with the trends we have now and expect to escape from decadence. You need an unexpected great awakening. You need a dramatic political realignment of the time that Trump and Sanders are sort of imagining. But, I don’t think they’re likely to achieve.

And or you would need breakthroughs in inventions. I mean we were talking earlier about the space program. It is totally possible that in the spillover from Silicon Valley’s wealth, there could be innovations that would really change our capacities for space flight. It’s possible that in this sort of world of alternative energy and self driving cars and so on, you could get a real transportation transformation of the kind that we haven’t really had since the rise of the automobile. But I think you need something pretty dramatic to shift the trajectory that we’ve been on for the last 40 or 50 years just because there are so many different forces converging to make us decadent right now.

Richard Reinsch:
I suppose too, I mean I was thinking, you mentioned Peter Thiel’s review of your book. I once read something of his, something to the effect he rejected the etiology of mortality. So pointing towards AI or working towards a transhumanist future of some kind, could technology, maybe not transhumanism and that’s still, but something like that. Do you think that is too unpredictable to pontificate about on what could change the West?

Ross Douthat:
Well, there’s two things, right? One is that I’m … I suppose morally and theologically skeptical of those kinds of innovations than Thiel is. So I can imagine a world where you’ve got some dramatic genetic innovation, some dramatic genetic enhancement, that would not be decadent, right? If we suddenly had the superman from the wrath of Khan, or this sort of Star Trek imagination of the future walking among us and we were … it just was driving dramatic political conflict or maybe if they were, I think I say in the book, if China achieved some breakthrough where suddenly they were creating effectively in the race, that would not be decadent. I’m not sure it would be good, right?

Richard Reinsch:
No.

Ross Douthat:
I mean, so that, you can imagine things happening that would create dramatic, new moral and religious conflicts where Thiel and I, who are both critics of decadence right now could end up on in effect the opposite side. In the specifics of AI. I mean, I, without being a proficient expert in the study of consciousness, if such a thing is possible. I do think that the hard problem of consciousness is an even harder problem to solve in some way that makes brains malleable and replicable.

Richard Reinsch:
Uploadable.

Ross Douthat:
Right, then uploadable. Exactly. I suspect we will get to Mars before we upload our brain anywhere. But that could be my own bias. I would rather go to Mars than upload my brain. And I feel like some of those kind of imagined innovations have an ambiguity where it’s like the matrix, right? If you’re sort of uploading yourself fully to virtual reality, are you escaping decadence or are you making it permanent? And I’m not sure what the answer is, but I lean towards the making it permanent version.

Richard Reinsch:
Or what does technology really matter to us if it sort of obviates our personhood and our ability to use it well for our own thriving?

Ross Douthat:
Yes.

Richard Reinsch:
I think, just closing, my take on your book too is it’s really what you make of who is the human person and what is human nature? And in the condition of malaise and boredom, and there are no clear lines of advance. If man is fundamentally dangerous, then one could imagine all sorts of mischief breaking out, which would be maybe my challenge to your thesis. Who is man? If he is a dangerous animal, then maybe our end does come much sooner than you’re anticipating or writing about.

Ross Douthat:
Yes. And we’re … and then there’s also the unexpected variable, right? I think I mentioned pandemic scenarios in the book, but I obviously wasn’t expecting to literally be promoting the book during a global pandemic. So I think the interaction between the unexpected variable and the ever returning human nature, our mix of invention and perversity, it would not surprise me at all if in 20 years I look back and say, “Well, this book was a really accurate account of the world from 1970 to 2020, but 2020 to 2040 has been in fact quite different and not nearly as decadent at all.” I mean, I think the big unanswered question is basically, right now, is there’s a lot of discontent with decadence that exists on the internet. Like if you go to political debates on Twitter, people are exhuming ideologies from the 19th century and fantasizing about all kinds of new political arrangements and that’s sort of a new thing.

I mean relative to even when I started working on the book, I’ve been working on it for a while. There’s more discontent, there’s more ferment, I think, than there was five or seven years ago. The question is, can that escape the internet and really affect the real world? Or is the internet itself just a great machine for taking people’s creativity and perversity and making sure that neither of them have that much effect on the actual institutions of society? And the Trump presidency I think has somewhat suggested that it’s more that, and if we get a Sanders presidency, we’ll get another test of the hypothesis.

Richard Reinsch:
Most indeed.

Ross Douthat:
But, a Biden presidency will just be sustainable decadence all the way. I think that’s fair to say.

Richard Reinsch:
No, I think that’s right. Ross Douthat, thank you so much. We’ve been talking with the author of The Decadent Society. Thank you for your time.

Did the Civil Rights Constitution Distort American Politics? Mar 31, 2020

Richard Reinsch:
Today we’re talking with Christopher Caldwell, about his new book, The Age of Entitlement: America Since the Sixties. Christopher Caldwell is the contributing editor to the Claremont Review of Books. He’s contributing opinion writer to the New York Times. Many of you will have read him in The Weekly Standard where he was senior editor, and also a columnist for The Financial Times. He’s also the author of a great book on the European situation Reflections on the Revolution in Europe: Immigration, Islam and the West. Christopher Caldwell, welcome to the program.

Christopher Caldwell:
Great to be here, Richard.

Richard Reinsch:
So tell us what is The Age of Entitlement?

Christopher Caldwell:
Well, as my book has it, it’s basically the period that runs between the Kennedy assassination and the Trump election. And I started on the book because I thought it was kind of a self contained period. I think it’s basically the period of the baby boom, in power. And I traced the line along which the country had changed in over those almost five decades, more than five decades. And focused on gender relations, for one thing, on war, for another, on economics as another, but I think it’s probably the line of thinking that has gripped people most has been the constitutional one, because I do present the changes of the 1960s with the Civil Rights Act of 1964 at their heart as being a kind of a new Constitution, which is kind of proved to be in conflict with older constitutional ideas.

Richard Reinsch:
Now, let’s talk about that, because that’s really the heart of your book is what is inaugurated in American constitutional thinking, political thinking, and social thinking from the Civil Rights Act of 1964, you argue we get a new constitution and I think you’re arguing that it’s virtually or becomes irreconcilable with a previous constitution, that is the Constitution of 1789 and the Constitution of the even though the 14th Amendment. Those are two things that can’t be bridged and produce many divisions, new thought patterns and new ways of being political and constitutional in America, talk more about that, if you would.

Christopher Caldwell:
Yes, I think that the Civil Rights Act does grow out of the 14th Amendment. So I think that has less of a problem. There’s less of a problem, bridging it there. But, I should be precise here. When I talk about civil rights, the reader should not get the impression that I’m friendly to segregation, or hostile to the civil rights movement as it existed for the whole of the 20th century up until 1964. In fact, I’m very much in sympathy with the claims to an agitation for equal citizenship that went on up till then, but there were problems in the Civil Rights Act that were not evident at first. We should probably start with what the Civil Rights Act did. The problem that faced Americans with segregation in the South, is that segregation in the South seemed to have been implemented through democratic institutions and it kept being ratified by democratic institutions. And what the Civil Rights Act did was, it pretty much declared the democracies of the South illegitimate or at least, not worthy of self determination. They had to be overseen and surveilled by Washington. And so the Civil Rights Act gave Washington powers that it had never had before in peacetime. First of all, it created a lot of crimes related to discrimination, it banned discrimination in voting, public accommodations, and in public facilities.

Richard Reinsch:
Education.

Christopher Caldwell:
Created a lot of new authority. Yes, education, yes. It created new authority, Civil Rights Commission, the EEOC, it created offices of civil rights in the different cabinet agencies and these were enormously powerful. They had the power to cut off funding to states and municipalities and to lay down hiring practices for companies that had more than 15 people. The EEOC had the right to file lawsuits and conduct investigation. This was really strong medicine. Now, there were a lot of people who worried about how strong a medicine it was at the time, but Americans didn’t worry about it too much, because the problem that civil rights law aimed to fix was so spectacular and so exceptional that it seems to limit the application of those laws. But in fact, as soon as they were passed, they began to deepen. You got new measures that were meant to aid the cause of desegregation, like affirmative action and busing and most important of all, these laws spread to other areas of American life in a way that I think very few Americans had imagined.

So you had the tumble of the 1960s going on, you had women wanting to be promoted up the corporate hierarchy. You had a certain number of immigrants wanting their children to be instructed in their own languages. And when they turned to court and said, “You know what, I don’t want to wait for Congress to vote a law. I want that new system.” When they asked that the court said yes. And so civil rights spread to larger and larger areas of American life and began to crowd out the traditional system.

Richard Reinsch:
Thinking about the Civil Rights Act itself, my understanding is that title four and title seven of that act, explicitly say that a racial balance is not the goal. That is to say, the goal is neutral principles, neutral principles of law, and justice for all Americans regardless of race. Isn’t it despite what happened, part of as I read your book, it’s the sort of unbridgeable tension between these two constitutions and yet, the Civil Rights Act of 1964, one could easily make the case was supposed to be colorblind, and of course as you note, affirmative action comes pretty quickly. We start getting the quotas, we start getting all these other things. I mean, sex is obviously in the Civil Rights Act, that becomes part of the goal, particularly under title nine, very aggressive. You also note something we talk a lot about it on Law & Liberty is the way in which the administrative state was able to act, particularly the Office for Civil Rights notoriously, probably one of the most notorious agencies in the federal bureaucracy for running around the Administrative Procedures Act, and being able to govern just with guidance letters. And that being recognized by the federal judiciary as such. You talk about the origin of busing, nothing was ever passed by Congress to give us mandated busing. It was, in fact, the guidance letter. But as I think about your book, and the Civil Rights Act, what are conservatives to do? Where does this situation leave us?

Christopher Caldwell:
Well, I think it is, as you say, it is extremely deeply entrenched. And it’s not only deeply entrenched, it has been deeply entrenched for a long time. We’re talking about a system that is now 50 or 60 years old. And it’s worked through a number of different modalities. It’s exactly as you say, there was no mention of resorting to quotas in the Civil Rights Act. But that was the way the offices of civil rights measured educational progress, and they were able to mandate the schools change, including through busing in order to demonstrate progress. I think if I had to identify the problem at the heart of it, the reason it could not be stopped from spreading into every single area of American life is that there was a sort of a short circuit in checks and balances. And this is not an area in which I’m an expert, but there’s some beautiful literature in the kind of James Q. Wilson style on the politics of bureaucracy by Boston College professor, political scientist named Shep Melnick.

Richard Reinsch:
Yeah, he’s been on this program to talk about that.

Christopher Caldwell:
Well, he’s an extraordinary analyst of this situation. And what he shows is that there was a kind of a ping ponging back and forth between regulatory agencies and courtrooms, where you could get these programs ratcheting up with incredible speed. They could undergo several escalations in the course of a year, you’d have a classic example that he has studied in detail is bilingual education. There was never a bilingual education law, what you had was a Supreme Court decision that said that there could be a right to bilingual education, and then guidelines written around it and that’s it. And it’s still on the book, actually. So, I think that there are many, many avenues through which this system expanded, but the thing that they all have in common is that they provided a way to short circuit legislative scrutiny. Let’s say that.

Richard Reinsch:
You talk about, as I was reading your book, there’s something that is a perennial topic amongst conservatives as you know. Yuval Levin is one commentator, Chris DeMuth is another one, and that is the decline and wane of Congress, which you’re just alluding to. And as I read your book, maybe the way in which to think about that is the Civil Rights Act itself, and the way we think about policy became moralized, black and white, and retreated into the judicial and administrative state sectors and there was very little Congress could do about it, or really wanted to do about it in terms of these major issues. You argue that the cost of the Civil Rights Act surpasses any war or effort like the space program or something like that, that the American federal government has attempted.

Christopher Caldwell:
Yeah. I know that the Vietnam War, which was a relatively very expensive war was not that expensive because the deficit in certain years since has been the equivalent of the entire federal budget at the height of the Vietnam War. We know that when we emerged from World War Two, our debt was not larger than the GDP. So I think this is a long standing program, this commitment to social change that began in 1965. I think that’s pretty clear.

Richard Reinsch:
A question that comes to my mind, and I just interviewed Amity Shlaes, and in thinking about her book Great Society, because those aren’t just all civil rights programs. And there’s just a lot of social spending in the Great Society at the same time of this period you’re describing, the Kennedy assassination, moving into the 1970s. How does that figure in and in particular to the proper size of the federal government, the spending of the federal government, a lot of problems we’re facing now, just the social spending aspect of this, and the tremendous costs incurred there and the ways in which those costs sort of subsidized and promote I’ll say, lifestyles that aren’t exactly conducive to independent, free citizenship.

Christopher Caldwell:
Well, that’s an interesting subject, the social consequences of the Great Society, but it’s not really the subject of my book.

Richard Reinsch:
Well, I guess I asked the question because I take it your book really spins, or you start and talk a lot about how the Civil Rights Act starts this new constitution, and gives us sort of a deformed Republic, in many ways, unintentionally, so but there it is. I asked that question, because I’m thinking through your thesis, but there’s a lot of things going on here. But particularly as we move through, sort of the conservative unrest that you also talked about, and we can get out of some of your political analysis, but the conservative unrest that elects Nixon, that elects Reagan, in the end, you end with, right as Trump is beginning to announce his campaign for 2016. And, it’s part of that turn against the Great Society, it’s not just civil rights. And so I’m just trying to think through all of that, and thinking about just the cost of the Great Society. To what extent is that civil rights, to what extent is that something else that’s happening, social spending, et cetera?

Christopher Caldwell:
I think it’s very hard to say because at a certain point, the culture of civil rights becomes the official governing culture of society. So I would have a hard time quantifying it. There’s one problem though, there’s one budgetary problem that I think is particularly salient. That really came to a head in the Reagan years. And that is, Lyndon Johnson built a kind of consensus for civil rights in 1964. But there was never a consensus built for the extension of that regime, that is the regime of regulation and judicial decree into other areas of American life. And so when civil rights started to affect things like immigration law, women’s rights, gay rights and that sort of thing, you had a large agenda that the country was not on board with and would not pay for. So by the late 1970s, there’s something going on, where you had a very expensive and very entrenched new constitution, but a public that was not willing to pay for it, and wanted to go back to the old constitution or so it seemed.

And what happened, I think under Reagan, is that Reagan, to a lot of people’s surprise, was not strong enough to overturn some of the newfangled programs that he had campaigned on overturning, I mean, you remember in the late 1970s, Reagan had said he could eliminate affirmative action with the stroke of a pen, he could eliminate the Department of Energy, he could eliminate the Department of Education. None of that happened, the constituencies were too strong. But you still had a public that was not willing to pay for it. And I believe that the deficit, the big deficit, that country began to run in the 1980s as a result of that legitimacy gap in the new system.

Richard Reinsch:
So let me think about that. I mean, because what are the costs of affirmative action? Or the cost of the Equal Employment Opportunity Commission, or the cost of not getting a job because of affirmative action? Are they truly that weighty?

Christopher Caldwell:
I have not calculated them economically. I just calculated them constitutionally.

Richard Reinsch:
Affirmative action, one can make an argument that it’s constitutional. You could also, I think making a reasonable argument that it’s not. Whereas the Civil Rights Act, I think is much stronger ground. Think in this regard the Bakke case you talk about, there’s three opinions in the Bakke case, famous case about a man who had scored in the 97th percentile, I think on the medical college entrance examination was denied entrance to University of California, Davis medical school. And there are three opinions that the Supreme Court gives on his denial. They order him to be accepted, they argue, on one hand, racial quotas are wrong but race can be a factor. That’s ultimately the plurality opinion authored by Powell, race can be a factor in admissions, along the lines of what has now come to be known as a diversity analysis that somehow racially diverse student body is a good thing, which strikes me as inherently a racialist type of an argument. And then there are four members of the court in that opinion that argued for the colorblind constitution. So you had two reasonable positions, I think. You had affirmative action to redress past grievance, then you had the colorblind constitution, then you had this wacky thing I would think, with Justice Powell and the diversity argument, and that comes to be a huge moment in our political constitutional life.

Christopher Caldwell:
Well, I mean, when you talk about the court, again, I haven’t calculated it, but we have what is called in this country, a diversity industry. And it has, I would say now probably hundreds of thousands if not millions of people employed in it and diversity was pretty much invented in the Bakke case in 1978. What Powell said is a very strange thing in retrospect. He said quotas are bad but there’s a better way of dealing with this, which has been developed at Harvard. It was the Harvard Undergraduate Admissions that had this idea that the Harvard community ought to be diverse. Now, since the problem at the time was trying to find minorities and specifically black people to enter into positions of leadership, you can say that the Harvard undergraduate program probably had an easier time of doing that than any other institution in the entire world. And so to argue that it could be a model for more local, less prestigious universities, let alone like small businesses and that kind of thing which it came to be imposed on, was really an extraordinary blindness. It was an equivalent of a let them eat cake kind of thing. Not every business has the leeway that Harvard has.

Richard Reinsch:
Thinking about your critique of Reagan, which is interesting, and worth I think spending some more time on, but you argue before that there were enough American voters that really wanted Richard Nixon to challenge these programs and their development that we’ve been discussing, but then he’s impeached. And so obviously, that doesn’t come to pass, and we get Ford and Carter. And then you argue that America was actually perhaps at its most conservative moment, with the election of Reagan, and the desire to challenge these programs, but he doesn’t do it. Instead, you argue and this was an interesting critique, he seals the peace between those favoring the Great Society and those opposing it through tax cuts and through deficits. Could you talk more about that?

Christopher Caldwell:
I think that he pretty much called a truce between two generations. And I think you’re right. I do believe the late 1970s was perhaps the most conservative time certainly since the 1920s and maybe all the way back to the Civil War. I think that there was a perception in the public that the progressive impulse had gone too far. And I think that you can see it on a number of fronts. First, certainly on civil rights, second, on sex and what would later come to be called gender as you had people turning on the Equal Rights Amendment, which had nearly been ratified by the requisite number of states. But when you had certainly started to have states unratifying a constitutional amendment, which is something that really hadn’t happened before. And then finally you had a very isolationist mood in the country at large in the wake of Vietnam. So I think it was a very backward looking country, there was a call for a restoration.

And I should say, when I talk about Reagan as having created a truce, I say a couple of things. One is, I think Reagan was one of the two or three great politicians of the 20th century. I do not blame him for accepting that truce when he saw an opening for it. That’s what politicians do to build coalitions. And they tend to be more drawn to building the next coalition than honoring the last promise, but it was very much at odds with what he had come to Washington promising and about the debt, I will say that this is one of the mysteries actually, that really motivated me to write the book in the first place, which is there’s a basic question about the 1980s, which is when we really started going into debt as a regular matter in peace time, really the only time we’ve done it in the country’s history. Why did we have to borrow in the 1980s? If you look at the country, demographically, you would have thought it was the very last time in the history of the country when we would ever need to borrow because we had this gigantic baby boom, and they were all in the workforce, we had a relatively minuscule number of dependent children and dependent seniors. And yet, it was just then that we went so deep into debt. So it’s my belief that what was going on is we were paying for two social orders, the pre-1964 one, and the post-1964 one.

Richard Reinsch:
So the costs of the pre-1964 are to try and enable economic growth, social mobility, I take it, that’s part of the Reagan tax cuts and continuation of the deregulatory efforts that Carter actually started. But then also, you’ve got this new constitution you’ve got to pay for, which you’ve got to spend in deficits to do it. A couple of questions that come to my mind as I read the chapter on debt, which I thought was incredibly interesting one. One, though I assume structural deficits are inevitable, once you get the three together Social Security, Medicare, Medicaid, not to mention the host of other lesser entitlement programs that come along with the Great Society. So in that regard, that seems sort of inevitable that we’re going to end up there, given that we have these constraints on the federal budget that are largely automatic unless you’re going to repeal them or substantially reform them, they’re there. But then also Reagan’s desire to build the military to confront the Soviet Union and also the tax cuts at the same time, which you allude to, I mean, in a way, it just seems, given his goals, that upon entering office, the notion of confronting the civil rights constitution isn’t on his radar screen the way maybe it should have been.

Christopher Caldwell:
It didn’t seem to be, no. And, certainly when you talk about it that way, it wasn’t on anybody’s radar screen. And, I talk about civil rights now, I talk about the civil rights constitution. I think that people were talking about it, even in the 1980s as the rights revolution and you might sort of say well, why don’t you just call it the rights revolution? It sounds less controversial. You know what I mean? I think Reagan was interested in limiting the rights revolution, I think that there was an attempt to nominate, for instance, conservative jurists to the Supreme Court. The reason I use the word civil rights instead of the rights revolution is that I think that a lot of the arguments for the expansion of this style of government to the transfer of power, let’s say, from the democratic parts of our government, to the judicial and the bureaucratic, a lot of the impetus for transfer came from moral arguments, should we allow courts to impose consent decree on such and such a municipality that they need more females in positions of authority? And the answer was always yes, because the question was always posed in terms of this being the equivalent of the Civil Rights conflict of 1964. It was the women are the new segregation or as Joe Biden said the other day, transgender is the new civil rights movement. So, there was always a moral language to this expansion of this kind of state.

Richard Reinsch:
Even Richard Neuhaus, editor of First Things, couched his opposition to abortion using civil rights language, the push to end abortion was the civil rights struggle of our time, he famously said. You note at the end of the Reagan administration, that this seems to ramp up, which might prove your point about ignoring or not seeing what was at stake during the 1980s. And your first piece of evidence is the famous episode of Robert Bork, but then also sort of a new energy and strengthening feminism, as well as gay rights at that time as well.

Christopher Caldwell:
Yes, I think you noticed a few things. Political correctness, the sort of ruining of people’s lives for saying things that were only kind of like, would previously have been considered only mildly wrong or uncouth, like Al Campanis, who was Jackie Robinson’s roommate with the Montreal Royals before he came up with the Los Angeles Dodgers, saw his entire career ruined when he said on television that he thought blacks might lack some of the necessities to be managers. I don’t know if he meant anything by it, but no one was going to give him any benefit of the doubt. That sort of thing came up. You had a very, very increasingly aggressive local government in pushing forward new gender understandings and schools. One that I talked about in the book was the attempt to promote gay parenthood in Queens through a book called Heather Has Two Mommies, which in the early 1990s, was considered just laughable excess of the gay rights movement, but actually, whenever these things were litigated, they would come before judges and the judges were really not of the same view that the voting public was.

And so you had a situation where, by moving through the courts and through the bureaucracies, activists could get written into law, things that were actually highly unpopular, things that really never stood a chance of getting legislated. And so I think the early 1990s was a crucial period. And it kind of came to a head I think, when Newt Gingrich was elected, and there was a widespread belief among Republicans who did not feel they had really reaped the benefits of eight years of Reaganism. There was a widespread feeling among conservatives and Republicans that well, it had really always been about Congress. And so now that we’ve got Congress, everything’s going to change and we’re going to get the conservative revolution that we were promised. But in fact, Gingrich was no more effective than Reagan had been. And it began to dawn on people that the real power was in the courts and the bureaucracy.

Richard Reinsch:
I think it is also the case of the left in this period, communism fails, communism loses and Marxism itself undergoes a change in the intellectual mind and becomes about race, becomes gender oriented, becomes open to appeals, to grievances itself as a part of forming a new left wing. I think about the first time I heard the term political correctness I was beginning high school in the early 1990s. And, as I look back and think, yeah, that all sort of makes sense, because the Leftist mind was changing in response to the conventional failure of its ideas, and needed to put together a new coalition.

Christopher Caldwell:
Yes, but there was a lot of that attitude among conservatives at the time, and I think that people looked on political correctness as utterly ridiculous. I mean, people look at it as a series of jokes and much of the 1992 Republican Convention was that way. It was assumed that the politically correct people in the United States were just holdovers and that the lessons of Europe were kind of written on the wall, our left wingers would soon go the way that the communists had in Europe. But in fact, something like the opposite happened. It turns out that European communism, or let’s say, the worldwide expansion this Soviet type of communism has actually been a kind of albatross around the neck of the left. And once communism was vanquished, people weren’t scared of barriers, let’s say anti establishment or counter cultural causes anymore. And so it wound up giving them a good deal of leeway in fact. And they seemed to have used it.

Richard Reinsch:
So thinking about this sort of fashion and you’re alluding to the unpopularity of a lot of this cultural movement, particularly in the early 1990s. But yet it continues to find success or stay in power. And, the famous phrase moving through the institutions comes to mind, it’s able to ensconce itself. And then it becomes the question of those conservatives who challenge it now face severe reputational costs, and so it has protection. How does this sort of unfold as you see it in the first decade of the 21st century?

Christopher Caldwell:
Well, I think that Barack Obama was a very important figure in sort of sharpening the division that I described in this book.

Richard Reinsch:
One question before we get to Barrack Obama for you, I’m sorry, George W. Bush, though. How does he figure into these two constitutions or how does his presidency figure in?

Christopher Caldwell:
George Bush, I should say he does not figure very largely in my book, he, I would say, was a figure, very similar to David Cameron in the United Kingdom. He was someone who sort of felt that his own party’s ideology was antiquated and was doing his very best to bring it into line with the opposition parties. And you can see that in the only piece of domestic legislation he passed in his entire two terms, which was No Child Left Behind Act having to do with schools. George Bush had a basically centrist view of domestic policy, which is to say that he accepted the powers that had been claimed by courts, and bureaucracies in the Clinton administration. And when 9/11 came, as you will remember, that ran down the curtain on domestic policy, nothing further happened on domestic policy. Although, if you look at the tenor of Bush’s response to 9/11, it was rhetorically very much in line with the idea of expanding rights, Islamic peace, let’s make sure we keep the gates of America open to the world, that sort of thing.

Richard Reinsch:
And then we move into Barack Obama. You know at one point in the book, he was constantly defining what it meant to be an American by progressive standards and suggesting that if you disagreed with him, you’re in effect disloyal and that he enjoyed playing with fire that way, I thought that was interesting.

Christopher Caldwell:
I think that the key thing about Obama is that he’s the first president to really understand this new way of delivering rights, this civil rights’ model of government action as being a new constitution. And he said so even, I think quite explicitly in his Second Inaugural address when he paid tribute to Stonewall and Seneca and Selma, basically gay rights, women’s rights, civil rights.

Richard Reinsch:
As expressing the core of American citizenship. Barack Obama, in my mind, the way if you watch him proceed, it was always to drop little bombs on his opposition in the expectation that they would react or maybe not react, but understand that they were not included and that they were a part of the past. You note in the book, just because people might be afraid socially to express opposition, there was a lot of opposition to what he was doing, but opposition doesn’t necessarily go away because it’s made politically incorrect, it smolders and waits and then comes out at a certain time, an opportune time.

Christopher Caldwell:
Right, and 2015 proved to be an opportune time, but I think that in general the public is less knowable than it was before the time of political correctness.

Richard Reinsch:
The question that I asked you in the beginning is sort of where does your book leave us? And I also know you end the book with the HBO show, Real Time with Bill Maher. And Ann Coulter was on the show, right at the time that Donald Trump just announced, and I remember Jon Stewart mocking Donald Trump at length for his announcement that he was running for the presidency, but you end with that, as if to say, who was the joke on? I thought the joke is on the elites, the joke was on the media, who didn’t see this coming, who didn’t see a Donald Trump campaign being successful, including many in the Republican Party. And I assume you do that because this would explain these two constitutions most pointedly.

Christopher Caldwell:
Well, it just seemed sort of a good note on which to sort of stop the narrative. I thought that was the point that I reached at which I demonstrated that we actually had two constitutions that we’re now in, or that had grown so irreconcilable, that they couldn’t even get the proponents of the one to really even understand the proponents of the other.

Richard Reinsch:
Question for you though, a lot has been noted and you note in your book, a lot of what’s supporting Trump though, many note these counties in rural America, X-urban America, largely white, but a lot of social dysfunction, jobs in certain respects having left those areas. Does just the two constitutions explain their plight? The call for an industrial policy to sort of reinvent, to revive these areas with industrial jobs or manufacturing jobs, does the civil rights constitution now explain all of the social pathologies of those areas or most of them, or is there a lot of other causalities?

Christopher Caldwell:
Well, I don’t think that anything explains everything. But I do think that it’s true that there’s a certain sort of non urban, non counter cultural character in American life, when we might call the white, heterosexual working class male, who first was totally ignored for about 50 years by the grand narratives of this country, if you ask people what their country was now about, this character would be the last person mentioned. And I think that as the civil rights style of government was built out. What it meant is that we used to have the segregated South required special attention from Washington, and Washington had powers to act really forcefully to govern there. And soon women required special attention, and gays required special attention, and immigrants required special attention. And pretty soon you had this group of people who were the only people in the country who were not getting special attention. And so their claim to be second class citizens was actually more than a metaphor. And I think that a lot of the, let’s say, passion that they brought to the Trump campaign which so surprised people in 2016 was actually kind of, it was only a matter of logic that it would arrive sooner or later.

Richard Reinsch:
Christopher Caldwell, thank you so much for coming on to discuss your new book, The Age of Entitlement. I appreciate it so much.

Christopher Caldwell:
Thank you, Richard.

America, Land of Deformed Institutions Mar 31, 2020

Yuval Levin returns to Liberty Law Talk to discuss his new book, A Time to Build. He makes the case for rebuilding the key institutions of American life, which have changed from frameworks that molded our character to platforms that allow us to project ourselves.

Richard Reinsch: We’re talking with Yuval Levin about his new book, A Time To Build. I’m glad to welcome Yuval back to Liberty Law Talk. He has appeared on the show to discuss The Great Debate and The Fractured Republic. Maybe this book is the completion, it seems of a system, a tripartite system of books here. Yuval Levin is the editor of National Affairs and is the Director of the Social Cultural & Constitutional Studies Project at the American Enterprise Institute. He also worked in the George W. Bush White House. Yuval, welcome back.

Yuval Levin: Thanks very much Richard.

Richard Reinsch: So the book, A Time To Build. Now I’ll read the full subtitle.

Yuval Levin: It’ll take a while.

Richard Reinsch: From Family and Community to Congress and the Campus, How Recommitting to Our Institutions Can Revive the American Dream. Now that sort of answers this question, what are we supposed to build, Yuval?

Yuval Levin: So in a way the reason the book is called A Time To Build is because it feels a lot of the time like we are living in a moment that sees itself as a time to tear down. Our politics is really focused on the work of demolition, some of which is necessary work of demolition. But a sense that what’s required now is draining the swamp or clearing the field. And there is some of that necessary. But I think that we too rarely see that what we really need in this kind of moment is to build and rebuild institutions, there’s a lot of the social crisis that we’re living through in America is a function of weakened and deformed institutions. And that requires more than demolition, that really does require some construction.

Richard Reinsch: I want to read from the beginning of your book, page two, and maybe get your comment here because I thought it expresses well what you’re saying, “we are not only restless amid plenty” and I think that’s important. And it’s something as I’ve been engaging in this area of industrial policy, now here we are in the midst of economic plenty, in the midst of a growing economy for a decade and yet we’re sort of in this problem of deaths of despair, of opioid problems, of drug abuse, suicides of youths rising. You note that in the book and the question becomes, why are we in this situation? You go on to say:

[W]e are also awfully daunted by what on the surface seem like readily surmountable obstacles to our thriving together. This is in part because we underestimate our strengths, but we underestimate and misconstrue the problems we face. We lack the grammar and vocabulary to talk about what is breaking down so we can’t even begin to do something about it. We look for diagnoses in the realms made visible to us by our sciences of society, but the troubles we find there are not sufficient to justify our despondent mood. Something has gone wrong somewhere else in some invisible realm. And we have been straining to perceive and describe what it might be.

So what do you perceive?

Yuval Levin: Yeah, I mean the book really begins with that kind of mystery where I think the reigning mood of our politics is darker than you would think it ought to be if you look at the normal measures of wellbeing, like economic wellbeing, and health and safety and the sorts of things that we might first look to if we want to ask ourselves, “Why do Americans feel as though things are going in the wrong direction?” And I think once you explore those, it looks like the problem is something that we don’t see so easily. And I turn to the question of institutions because I think institutions are a kind of invisible infrastructure that underlie our social life. They make it all possible, but one of the reasons that we enjoy our freedom, the way we do in our country is that we often don’t see institutions, don’t think about what it is they do, especially the formative work that they do.

And that’s great when they’re strong, it means that we feel even more free than we are. But when they break down, we have real trouble knowing where to go to fix things. And one of the things that this book tries to do is to make those institutions more visible, to articulate what it is they do, and therefore what might be going wrong in this moment in ways that are not obvious from the usual kinds of social science statistics and economic data.

Richard Reinsch: So what is an institution and why do they matter? Something you note in the book, I think was right on. Institutions are frequently depicted as our enemy, as things that constrain those things that we need to be redeemed from, to come out of and be who we are. So what are they and this isn’t really a political book. Maybe, we could say it’s a work of political thought, but it’s not really a political book, you’re talking about a lot of institutions. We’ll try and go through those in the interview.

Yuval Levin: I mean I think the resistance to institutions, the sense that we don’t need them is a long running thread in American social, cultural, and political life. American culture is rooted in a certain kind of individualistic protestantism that wants to deny the need for mediation and for formative institutions. But ultimately I’d describe institutions as the durable forms of our common life, the shapes, the structures of the things we do together. And we tend not to see them because we have a very individualistic understanding of ourselves, and our culture, and our society and institutions are not individualistic. They’re precisely the things we do together. And they’re the ways in which we give shape and form to what we do together. So they do become very difficult for us to see.

But ultimately they’re central and unavoidable, they’re the ways that our social life actually happens. And so in a moment like this one, they seem to be in trouble. It’s particularly important to think about what they are, what they do, and the ways in which they offer us something that I think is ironic if not paradoxical, which is they offer us a liberating and empowering form of constraint. They give us specific roles in places. They tell us what to do and what not to do in those situations. And by doing that, they give us a kind of shape or form that lets us be effective in various ways in different parts of our lives. And it’s important to appreciate that because it doesn’t come easy in the language of our kind of easygoing individualism.

Richard Reinsch: So the institutions, they aim at practical results, consequences. And maybe we can get more specific here about the types of institutions, but there’s a form, there’s a purpose to the institutions themselves as to what they provide or I guess you’ve been sort of talking about that formation, restraint, integrity and purpose and those who participate in them. So that explains the situation we’re in now. The emptying out of that, how precisely?

Yuval Levin: I mean each institution, of course, in our society does something that we value, right? It might educate our children, or enforce the law, or protect the country, or just provide us with a good or a service that we value. But as it does that, each institution also forms the people within it to do that in a way that takes integrity seriously, that it follows a certain code and that therefore makes those people trustworthy as providers of that service for our society. And so to trust an institution is really to believe that, that institution fosters an internal ethic that makes the people trustworthy.

One of the things we do know about institutions now in American life is that we’re losing trust in them. There are decades of data that show us that American confidence in institutions has been declining, and I think the reason for that, or a core reason for that is that we’ve lost this sense that these institutions form people who are trustworthy. And that’s not just because of traditional kinds of corruption where there are always people who try to abuse institutional power. I think it’s also because of a different change that’s really at the heart of this book where our expectations of institutions have changed from thinking that they exist to form people to thinking that they exist to provide people with platforms, with a stage to shine and be seen with prominence and a high profile rather than with a particular kind of form that they have to be given through the institution.

So that if you look at our political institutions for example, Congress is a great example of this. A lot of members of Congress now basically think of Congress as a platform for themselves, as a way to get a better time slot on cable news, as a way to be heard on talk radio, as a way to get a bigger Twitter following, and what they do with that is a form of expression and particularly expression of frustration, even frustration with Congress. They don’t think of themselves as insiders operating within the institution and shaped by it, but as outsiders who are just particularly prominent commentators about the institution.

That’s how president Trump used the presidency. He will stand on top of it and yell about the government, even though he is the chief executive of the government. And once you notice that, you see it in a lot of our institutions where people who ought to be functioning like insiders are actually functioning like outsiders, and that makes those institutions very hard to trust and take seriously.

Richard Reinsch: You’ve run this analysis through politics, Congress most obviously. We talk a lot about that at Law & Liberty, the executive branch, journalism, education, legal professions, legal profession is one, but the professions generally. A question that I have for you, the molds and platforms, the institutions no longer mold us, shape us and just thinking about what you said about, in your chapter on education and universities. No one really thinks—outside of say maybe some of the great books colleges or some of our more religiously Orthodox campuses—that they’re supposed to shape you in some way. The university is there to give you a step up into the next realm of your life, or into a new class, or a profession or something like that.

Richard Reinsch: And that the contrast there would be, I thought Calvin Coolidge’s autobiographical account of his time at Amherst College where there was a definite formation process at work, theology, philosophy, history, and this sort of expectation of becoming a man of that college. So we’re not that far removed necessarily from what you’re describing, but we are far removed from it, it seems in the individualism, and the other side of that is the egalitarianism of our culture that we somehow see these things, a formation process really as a threat to us. I don’t know how one overcomes that other than just to say, “Wow, this is just really an unhappy situation.” Maybe I really should look to tradition and the formation across generations that an institution can embody.

Yuval Levin: Well, I think that’s quite right. I mean the ways that a lot of these prominent institutions, including educational institutions, which are unavoidably formative in one way or another, the way they understand themselves is often much more expressive and performative. I think of a friend who had a daughter who was at the age of starting to apply to colleges and he showed me a brochure that she got from Brown, which at the very top said in big letters, be yourself. And that’s a strange way for a college to express to a potential student what it’s all about. I think that if you look to the exceptions when it comes to American trust in institutions, ask yourself, what are the institutions we do still have high regard for? This difference becomes even clearer because the most significant exception is the military, which is one institution that Americans have higher regard for now than they did two generations ago.

And the military is a formative institution. It is unabashedly formative. It takes a certain kind of human being and produces a different kind of human being who is more inclined to take seriously things like honor and duty and country and we value the military not only because it’s very good at protecting us from our enemies. We value the military because it produces trustworthy people and we end up trusting it for that reason.

A lot of our institutions could think of themselves that way and have reason to think of themselves that way, but very few of our institutions actually do think of themselves or present themselves that way to our larger society, and I think that does get to a kind of discomfort with the idea that we even require formation and formative institutions. You say this is not really a political book and I think that’s true, but it is a deeply conservative book in one sense that it assumes an idea of the human person as beginning in a very imperfect form and requiring formation to become really capable of the freedom that we in this free society exercise.

The idea of the human person at the heart of this argument is an imperfect fallen creature that requires formation. That’s not the idea of the human person at the heart of a lot of our popular culture now and of our elite culture. We think of the human person more as just requiring a platform, a way to be seen and heard, to have status, to be regarded. And if that’s what you think, then institutions really just ought to be platforms. But if you think we need formation, then a lot of our institutions need to rethink how, what kind of role they play in society.

Richard Reinsch: No, I mean there’s a sense in which in your book, I think I mentioned in the beginning, I think your book sort of is the triptych here of what you’ve been doing maybe the past decade because your first book, The Great Debate, the debate being between Edmund Burke and Thomas Paine could evidence this in a foundational sense. Thomas Paine released the shackles of society and let men be free and see what great things they do. Edmund Burke, well, freedom to what end and freedom itself only matters through a process of what we’re describing here of formation and all of the ways in which the various parts of your civilization have contributed and embodied excellence about human nature. Do we form people well? And freedom becomes lovely.

And your book in a way could be, is very threatening if it’s described that way, because it does involve these qualities of moral judgment that we seem to be so afraid of now. We struggle even to have a language to describe this. And so this is a difficult thing you’re after in the book. However, some people might describe it as sort of a benign book and in that regard, but it’s not at all.

One of the things that’s interesting here as well, it seems, the American military, if you look at public opinion polling in the 1970s, not hard to understand, not nearly as highly regarded as it is now. And maybe coming out of Vietnam and things like this, but it recovers great credibility and is now the most trusted of our governing institutions in the country without parallel. Congress as you know is at 11%. The federal government, when they started asking these sorts of questions of trust and high regard, I think in the early 1970s, 1973, pretty high regard, that’s obviously declined dramatically. I don’t even try and suss out all of the reasons for that. But the military itself is an interesting case and even within higher education, the service academies. Somebody says they went to Harvard, you think, “Oh, you’re really smart. Good for you.” Somebody says they went to West Point and more, we think they’re smart but more qualities naturally flood into our mind about that person. So maybe talk about that.

Yuval Levin: And now I think part of the story here actually highlights the importance of thinking about where our starting point is for these trends. The story of American confidence in institutions is one kind of story, if you begin in the middle of the 20th century when Americans had very unusually high confidence in institutions coming out of World War II, after the depression and really several decades of national mobilization, there was an incredible confidence in governing institutions, operations, in the labor movements, and educational institutions.

That began to decline somewhat by the middle of the 1960s, from what we can tell, as you say Gallup really started measuring this in the early 1970s, and so part of this is actually a kind of normalization. I mean I think if you had checked in on the United States in the 19th century, you would probably not have found very high confidence in institutions, certainly not like the level that we found in the middle of the 20th century. But the most interesting story in this pattern which quickly went beyond normalization, I think to extremely low confidence in institutions. The interesting story is the military, which in the 1970s had unusually low public confidence and that’s partly because of Vietnam, I’m sure. And the sense that the military was part of this sort of complex that was being dishonest with the public.

But I do think that it’s also partially an explicit effort by the US military to present itself and its role in our society as more than just fighting wars effectively although that’s extremely important and is its job, but as forming people, as forming men and women who are distinct in American life for the ways in which they take seriously certain core ideals. The military presents itself that way, and it actually is that way, and the public confidence in it I think has risen tremendously for that reason as it has declined in a lot of other institutions that have presented themselves less that way and have come to understand themselves and to show themselves to the public much more as providing arenas for expression. The military has presented itself as providing an arena for formation and I think that tells us a lot about what we value by institutions.

Richard Reinsch: And not to keep on the military point. The United States Marine Corps as many have noted doesn’t fail to meet its recruiting goals. And is seen as the most rigorous in terms of physical training and preparation to enter that branch, which I’ve always thought stands out.

Higher education, I liked your analysis of what we might characterize as the Campus Wars. We’ve been talking some about higher education, and its role as an institution, and what makes it an institution. How should we think about higher education in America? I’m partial to the idea of removing the federal government almost entirely from its workings and trying to create a true market for higher education, which I think would make it a much more responsible set of organizations within higher education. You probably don’t disagree with that, but in the book you talk about more, more that needs to be done, and I also think we can get into your analysis of say the Campus Wars, which I think is also prescient.

Yuval Levin: In some ways the university is really at the center of this argument. It’s at the center of the book in a structural sense. The other chapters are kind of built around the question of the university, and I think it’s at the center of the culture war that is really at the heart of the transformation of our culture that the book tries to describe, the university that you would think is unavoidably a formative institution. It’s an educational institution. It’s essential to the character of our elite culture. It is where the American elite sends its children to be formed and shaped to take positions of significance in our society and the university is at the heart of the dysfunction and deformation that we find.

The question of how to understand that the formation though I think is a challenging question and the approach I take to it is not the approach that all of my friends on the right do. I think universities serve multiple ends unavoidably. They’ve always been home to, what I describe in the book, as basically three kinds of educational cultures. One is about professional development, about giving people the skills they need for the economy. Another is about a kind of culture of moral activism, even social activism, which is not new in the American academy. In some ways, that’s what Harvard and Yale were created for, first American university, and then a culture of liberal education, the truly traditional academic culture. All of them have existed in the American academy from the beginning and all of them have tended to function in different ways through teaching and learning. That’s what the university does. It’s about teaching and learning. I think what’s different now, it’s not that these cultures exist, but that they are very badly out of balance. The culture of moral or social activism has overtaken the ethic of the university, particularly because it dominates the thinking of university administrators, which is really where I think the crisis of the campus has been focused in the last decade and a half.

Not just that there are some professors who see their role as a kind of social activism on campus, but that, that’s how universities tend to understand themselves and govern themselves, and there’s a tremendous need for pushing back to make room both for liberal education, which I think is a central. And even just for traditional kinds of skills training which universities would form. I think the answer to that is not just arguing for free speech though. I’ve been concerned somewhat about the ways that we have tried to defend the culture of the university, have identified it with free speech. The university doesn’t exist for free speech.

Richard Reinsch: Or merely academic freedom.

Yuval Levin: Or merely academic freedom, exactly.

Richard Reinsch: Those are two formative things but there are purposes…

Yuval Levin: They’re necessary, right? They’re prerequisites, but they’re not the ultimate purpose of the university. They’re means, not ends, and I think we have to recover an idea of what the university is for, which is a formative idea. And so the argument that I’m making for what can be done about this, really called for pushing back against the culture of university administration in a way that tries to recover the ethic of the academy as a formative institution.

Richard Reinsch: So that does spark an obvious question. How should we judge higher education if it’s teaching and learning? Yet there is a vacuum there, you note that in the book. There’s a vacuum in our society. You quote Alan Jacobs, Jody Bottum is another thinker here, that what’s filling that vacuum is some Puritan inheritance divorced from traditional theological context, but now playing out most powerfully in the university of sinners, redemption, purity. You quote Alan Jacobs that the campus is the sanctuary, which is why we see speakers disinvited or shouted down because they are invaders of some kind, central invaders.

So, that’s one way to think about higher education. And it seems to me that it loses in the end, although it can do a lot of damage in the meanwhile, the standard you’re proposing is, could you put something on that?

Yuval Levin: Part of what we’re seeing is filling a kind of spiritual vacuum and it wouldn’t be wrong really even to describe the culture of moral activism on campus as a kind of deformed puritanism. I think we’re wrong to think of it as fundamentally relativistic or nihilistic. It has elements of that and there are ways that a certain kind of radical egalitarianism points in those directions anyway, but I don’t think we should understand the Left on campus is fundamentally relativism. I think it is highly moralistic, but in a misguided way and we should see that as an opportunity.

I think there are a lot of students who are looking for a morally freighted way of understanding the good and the true and the beautiful in society. That says to me that they may be open for one thing, for some kind of religious conversion, but at the very least it means they could be open to liberal education presented to them as a way to pursue the truth as a way to understand justice, which after all is what liberal education is. I think this is a moment that begs for liberal education to present itself, not in defensive ways, not as struggling for its life against evil forces trying to crush it, but as the answer, as the solution to what these students are actually looking for in a way that would be much more constructive for them, much more appealing for them, and open up a lot more paths than the kind of social activism that they’re presented with.

And so I think this has to be a time when those of us who care about liberal education on campus make the case for it in inviting and appealing ways, but too often because that culture is under siege somewhat, the champions of liberal education seem alarmed, panicked, and frightened and that’s not as attractive as it might be. I think we should think about how to gain converts more than just how to defend territory.

Richard Reinsch: It seems most of the efforts at liberal education, I’ll say, properly understood, aren’t necessarily happening in the academy either. Summer programs, the students weekend programs, you’re involved in those, I’m involved in those and trying to bring to them sort of a nonideological approach to education. How one does that on campus with a more broad effect is hard to see. Humanities majors declining, I think one reason for that is students maybe look at that and say, “I don’t want any part of that,” but the other reason is practical. The cost of an education is so much, and you might as well major in business, something you think you could do something with, and I understand that as well. So definitely one’s work is big here.

Yuval Levin: I don’t think that there are easy solutions here and as I said, I think it’s understandable why the culture of liberal education is in a kind of defensive crouch. It is under assault and there’s not an easy way to regain the offensive here. Liberal education has never really owned the American academy. It’s always been a minority culture on campus and it’s going to remain so, but it doesn’t have to be quite as under siege as it is. And I think that that means for fighting for the culture of the university by using any leverage we might have over students and parents and trustees and outside forces that the universities will have to listen to ways of changing the culture of administration. But I don’t think we should be under the illusion that any of that will be easy. It is not at all easy to see the kind of cultural transformation that would have to happen.

Some of the response has to be from outside.

Richard Reinsch: Yeah, and requires a lot of different policy steps too.

Yuval Levin: I agree with that. I think the role that public policy plays now is basically counterproductive and has to be rethought.

Richard Reinsch: The biggest challenge to higher education, I think, is happening right now, which is the curve in enrollment. I read recently enrollment is down in higher ed since 2011, something like 11% to 12%, which is not insignificant if one thinks about the demographic challenges and how that will play out. But I think discussion of higher education may naturally bleed into a discussion about our elites, which is also a huge part of the contention in our society. For what you say about elites fits into this molds and platforms analysis. What is the crisis of the elites? Are our elites up to no good?

Yuval Levin: The book sort of ends with that question and views it through the lens of meritocracy, which is how we now think about the formation of elites in our society. We think about elites that way because the elites that produced our meritocracy, and that ran a lot of our institutions for a lot of American history came to be perceived and even to perceive itself as too exclusive, as making it too difficult for people to rise into elite positions in our society in various ways. And I think that was true, but when we think about it that way, it keeps us from seeing that there are really two ways that elites have to legitimate their power and position in democratic societies, in egalitarian societies.

One is about how people rise into the elite, but the second is about how elites use their power and use their positions and authority. And I think the problem we have today is much more about the second than about the first, and meritocracy contributes to that problem because it leaves our elites now thinking that their positions are earned, that their authority is legitimate by default because they’ve been selected into elite institutions of higher education in particular. And then I’ve had a kind of path to power in our society through that and an elite that doesn’t think it needs to be constrained is a very bad fit for a democratic society.

It invites the kind of resistance, frustration, and ultimately populism that we’ve seen, and I think it deserves that response. Our elites in fact don’t think enough about how to constrain themselves in ways that could make it clear to the larger society that they’re playing a legitimate and valuable role. And I think institutions have an enormous role to play in that because our elite institutions can constrain our elites in ways that put them to use for the larger society. That’s what the professions do. That’s what political and cultural institutions do when they’re functioning well.

But if we understand our institutions as performative, as just platforms for people to stand and shine on, then they don’t really function to constrain our elites. They just display our elites and increase the frustration of the larger society with them. I think part of the solution to this part of the problem our country confronts is an idea of institutionalism that requires much more constraint and formation, that requires people to understand themselves as needing to prove that they operate by some standard of integrity and public service and that would require a real cultural change in a lot of our elite institutions.

Richard Reinsch: But I think they would take on your position, say, “No, no, we’re doing that. We’re showing how we serve, how we’ve been formed, and how we’re restrained with all of our wealth, power, and intellect. That’s our commitment to social justice. That’s our moral capital.” That’s what these leading C-suite executives saying, “we’re not beholden to the shareholders but to our stakeholders.” Which would include the working class, which would include the environment, all of these sorts of considerations, much broader sets of considerations that make us better companies, universities similarly, leading law firms. You note that and these quotations of with the legal cases they take on in their pro bono efforts, isn’t that their justification? But as you and I would say, I think, persuasively, that’s a problem, too.

Yuval Levin: I think that the way that they would make that case, points exactly to the expressive understanding of institutions that dominates now in our culture, which is to say exactly by describing themselves as advancing an idea of a virtue or responsibility, that’s basically about expressing the right opinions rather than as existing in order to constrain people with power and put them to use in public service. It seems to me that the solution they offer is an example of the problem and what the elite professions do for example, think about the legal profession. The legal profession ought to be a great way to constrain elites because it literally puts people with training and power in the service of other members of our society as agents, as counsel.

But if we think of the legal profession instead as advancing a social revolution as existing to transform our society in light of progressive ideals, then that institution does not constrain our elites, it empowers them, it helps them feel better about themselves, but it doesn’t give the rest of society the sense that people with power are also held to certain standards of responsibility. That’s what our elite institutions could do and should do. But very often when they’re pressed on that point, as you say, they just say, “Well, we’re well-intentioned. We’re expressing the right opinions, we’re advancing right ideas. So don’t worry about it.”

Richard Reinsch: Incredibly self-serving forms of action that morally emboldened people as well. I think I’ve seen that from firsthand experience. Okay, so putting all of this in a explosive cocktail mix is social media. You have a great chapter, I think, and I told you that before the interview started on social media. I think as people read it, they’ll recognize maybe their own actions on social media in it, but a larger role, that you note is how expectations for social media, which I never bought, you probably never bought either. That it would bring us together and make us better and more communicative of information, et cetera.

That hasn’t really proven to be true, and I think most people now agree with you, even though everybody still rushes to engage in it, and Facebook and Twitter are leading companies on the stock exchange, et cetera. But social media has led to, fueled, it seems, this decline in institutions. Talk about your critique.

Yuval Levin: Yeah, social media in a sense are native 21st century institutions, so that they arose in this period when what we expect of institutions is to serve as platforms and to display rather than form and the social media institutions, our platforms, I mean we call them platforms. So that’s what they are, they are places where we can stand and be seen and they encourage a kind of a culture of exhibitionism. They turn us all into our own paparazzi. We hound ourselves for photographs, robbing ourselves of privacy for the sake of exposure. It’s a very bizarre kind of thing when you step back and think about it.

But I think more important than that, they come to substitute for what we understand to be the place of our social lives. A set of habits and practices that really aren’t particularly social and that aren’t formative of suitable sort of social habits and norms. And ultimately social media exacerbates these problems in other institutions. The name of the chapter in the book on social media is the informality machine. They serve to take forms out of the ways in which our other institutions operate. So if you think about, for example, how social media interacts with political journalism, which we talked about before, journalism is trusted to the extent that people think that it imposes some standards on the people who practice it, that it requires people to be edited, and to some standards of verification, and various kinds of layers of confirmation.

And then you have prominent political journalists standing on their own, on a platform on Twitter, and just expressing their views and mixing it with what seems like reporting and effectively deep professionalizing themselves in an ongoing way on Twitter. There’s a way in which that’s what social media does for all of us in all kinds of ways. It robs us of the forms that makes it possible for us to know who to trust, and what to believe, and what to take seriously, and makes it very difficult for our society to address the kinds of problems that arise out of our other institutions.

Richard Reinsch: Yeah, It’s interesting, social media, it can be your own highlight reel where you’re always posting the best things about yourself to others. And it can also be this place where you show the worst part of yourself to others.

Yuval Levin: That’s right. It confuses us about what’s public and what’s private, right? And you never quite know if you’re talking to your friends or you’re talking to the whole world. And so people do and say things on social media that would just never happen in the everyday world. And you stand there, your jaw drops and you think, “How could this person have done that?” But the form of the interaction encourage it.

Richard Reinsch: There’s a case for not everything being made public, certainly not in real time, but also you get into these moments and you see people, you can tell they go on a three-hour extended discussion on social media and what’s driving that is anger, adrenaline, passion. But this has all been, this is transformed, it seems to me transformed maybe to much of a word. It’s changed the nature of political discourse in this country. And arguably Twitter helps get Donald Trump elected. It’s hard for me to see him doing the things he did without Twitter and being able to speak directly to so many people. Many would say that’s a good thing. I think it’s more mixed, but Twitter certainly never came along thinking it was going to get Donald Trump elected. But it did, I think.

Yuval Levin: Yeah, I mean, Twitter itself, it’s much smaller than Facebook say. But I think because of the role that it plays in our elite culture in particular really has been just transformative of some facets of our public life. And it’s had an enormous effect on politics, changing the basic nature of the discourse, the basic culture. And doing it in a way that by robbing at forms makes it extremely difficult for politics to be substantive, for people to think before they speak, the kinds of things that are just essential for a democratic politics to function well and to rise above the lowest possible level. And so my view of Twitter is just not mixed. I mean, I think it has been a disaster.

Richard Reinsch: You’re not on Twitter, are you?

Yuval Levin: I’m not. No, no.

Richard Reinsch: Yeah. That’s interesting. I’ve noticed you’re not on Twitter and I’ve thought… John Podhoretz had a great piece in the New York Post talking about his Twitter life, because he was always on Twitter, constantly. I mean, I remember he would appear every time I opened my feed and then he disappeared and now I know why. He recognized a need to step back. But also if we put this all together, it’s not just the case, I don’t think, and I don’t think you’re saying social media destroyed institutions. It does come along at a time when they’re very weak, I think. And if we put together your analysis, you talk about, you say on page 15, “if the absence we are experiencing looks like isolation, mistrust and alienation then it is also a shortage of belonging, confidence and legitimacy.” So we would have lonely, angry people at times, disconnected at times, not seeing themselves belonging to something. Bam, Twitter!

Yuval Levin: No, exactly. I don’t blame it for these problems, but I think that it’s made them worse in ways that we couldn’t possibly have imagined when this got started.

Richard Reinsch: So here at the end, I want to go through one more very important institution in American life and then also get into your case for commitment, religion and institutions. Talk about how you see it. You discuss at length Roman Catholicism and evangelical Protestantism, but also what’s missing here, not necessarily from your analysis, but missing is the collapse of mainline Protestantism, which the repercussions for that, as Jody Bottum again has noted, are tremendous.

Yuval Levin: I think that’s absolutely right and that’s about more than the religion story in America. I think the case that Jody Bottum has made is very persuasive in helping us see the decline of many of our other institutions too, in that the sort of framework, the core moral consensus that had held them together in a lot of ways became dramatically weaker and was replaced by this different attitude about what institutions do. In talking about religion, the book focuses on Catholics and evangelicals basically because those are the two largest religious groups in our society. I think that the patterns we find exist in many other religious denominations too. They certainly exist in the world that I know best of American Judaism, and I think part of what you find is the same kind of transformation of institutions that ought to be formative, that ought to be changing souls and changing hearts instead becoming performative, becoming just another stage for people to demonstrate that they have the approved kinds of virtue and for people to make political arguments and culture war arguments.

You find that all kinds of different institutions in our society that have different purposes, and different roles, and should have different cultures just become interchangeable stages in arenas for this kind of expression of cultural and political views so that what happens at the New York Times just isn’t very different from what happens at an elite college. They’re both just places to yell about oppression, and in American religion some of this happens on the Right where you find institutions that become just places to express the views of a political sect rather than the views of religious tradition.

And the effect of that combined with certain kinds of celebrity culture that also is an acid poured onto our institutions is to leave us without the kind of formation that these core institutions can offer us at their best. I don’t want to paint too grim a picture of American life. This book is actually ultimately a hopeful book, but I think that the kinds of problems we’re living with become much clearer and sharper when we see them through this sort of institutional lens.

Richard Reinsch: I was evangelical Protestant, now I’m Roman Catholic. Evangelical Protestantism, it seems to me reading your book, is a pretty thin group, we think a lot about politics, and just looking around me in the suburbs of Indianapolis, evangelical Protestant churches are full not just on Sunday, but throughout the week. They’re offering a lot to people, it seems to me.

Yuval Levin: Absolutely.

Richard Reinsch: And I’ve experienced that. Catholicism, well known betrayal and mistrust, which I’ve also lived with now for over a decade. And also there’s another part of Catholicism too, which is a lack of confidence, I think even in itself as an institution, apart from just the sexual scandals. But it seems to me the collapse of Mainline Protestantism is so large within American religious life, Catholicism and Evangelical Protestantism really can’t, maybe they can’t take that on, but it’s going to take a long time and involves a lot of things.

But this is crucial too because how does one reach those who are alienated, Tocqueville features into your book. He has a way of describing religion being sort of one of these pre-liberal institutions that helps us think not only about our liberty, but also about its use, or using it well, and both emboldening it, but also limiting it. And that crucial factor missing is huge and gets replaced by other things.

Yuval Levin: And in an institutional sense, it helps us grasp that we require formation, that we need that, both from religion and from other institutions, and seeing that I think is key to any path forward for us from these particular kinds of problems that our society faces now. So that I think American religion has an absolutely central role to play in any recovery along these lines.

Richard Reinsch: So the case for commitment. Because that in itself is the long patient work, it seems to me, it also seems to me building institutions is inherently a work of elites at a basic level also, but I’ll let you maybe end with that.

Yuval Levin: Yeah, I think that’s true in some ways, but we all have a role to play in some set of institutions. Some people have roles to play in elite institutions or in national institutions. Some people have roles to play in the institutions right around them, in local institutions, whether that’s educational, or work, or religion, or family, community, and civic life. It seems to me that the first step toward a recovery, if the problem is roughly along the lines that I’ve described it. It’s for us to try to think of ourselves through the lens of these institutions a little more, to ask the question that is really the great unasked question of American life right now, which is given my role here, how should I behave? Given that I am a member of Congress, or a CEO, or a worker, or a member of the clergy, or a congregant, or a parent, or a neighbor, or the vice principal of this elementary school. What should I do in this situation?

I think the people who we look up to in our lives are people who seem to ask that question before they make important judgments. The people who drive us crazy in America, who we think are part of the problem are people who seem to never ask that question when they should so that we could each begin by trying to force ourselves to think that way when we have to make decisions. That’s a small step but if we each take that small step, then I think we could really make some progress on these problems. And beyond that, there’s a real need for institutional reform.

And the book tries in different ways by thinking about the different institutions that it takes up to suggest some ways that the incentives that confront people in these different institutions could be changed. That the way we think about the purpose of these institutions could be clearer. But that kind of institutional reform requires first recognizing the problem in these terms and requires us really to see the need to think institutionally in different parts of our lives. And so I think it really does begin with a change of attitude. And ultimately the book is hopeful that this can happen because I think people do see the problem and there aren’t very many people who are just happy with the status quo, but it’s no easy thing and it will require a real cultural change that can only happen over time and from the bottom up.

Liberalism and the Death Penalty Mar 31, 2020

Is the abolition of the death penalty in most western countries an unmitigated good? Craig Lerner, Professor of Law at George Mason’s Scalia Law School, discusses this question and the willingness of liberal societies to defend law and order.

Richard Reinsch: Today we’re talking with Craig Lerner, Professor of Law at George Mason’s Antonin Scalia Law School, about the moral and political meaning of the death penalty and if its demise is, as we are frequently told, imminent. Professor Lerner, you recently wrote an essay on the death penalty called “Is the Death Penalty Dead?” in the most recent issue of the Claremont Review of Books, which I read and thought significant. You analyzed this punishment through several different ways: political, philosophical, and also a geographical survey of jurisdictions around the world, civilizations around the world, and how they treat the death penalty.

Before we get into your essay, maybe just an obvious question here, one that I think any enlightened, certainly liberal arts professor would ask: Is it not an unmitigated blessing that the Western world has basically abolished the death penalty, America excepted?

Craig Lerner: Well, I would say no. Or, I would say that it’s at least a question whether the impulse to abolish the death penalty is unambiguously good, or whether it reflects a diminishing impulse to justice and a sense of a community that demands justice that is not unambiguously good. I would say certainly there’s a narrative that the decline of the death penalty in the West is an attempt to support higher principles of the enlightenment. And that the impulse to retain the death penalty is atavistic urge to pursue vengeance, which we should welcome its demise. But I think there’s a legitimate argument on their side that has been articulated many times over the centuries, and I think still has some viability today.

Richard Reinsch: What does it mean? What does it exactly mean to abolish the death penalty? Is it in fact an unwillingness, or even not an unwillingness but just a sheepishness about imposing justice on those who commit heinous crimes? A lot of people remarked the Norwegian shooter who murdered 70 teenagers on an island in Norway was a political assassination. Obviously a deranged person. But the most he could receive for that crime, I read, was 20 years in jail. Of course, in America you would probably receive the death penalty. I mean, that sort of I think maybe illustrates your point.

Craig Lerner: Right, and a similar case when the bombings in Madrid in Spain.

Richard Reinsch: In 2005.

Craig Lerner: Right. 200 people died. I think that in that case, I forget exactly what the punishment was, but it was comparable. Again, a mass murder and a Western European nation imposing something not simply less than death, but just less than life. And the question is if that’s something that we should applaud as a sense that these nations have ascended to a respect for human rights? Or is it something to be concerned about that a nation will tolerate this grievous harm to the community and not have the conviction to exact a far more serious punishment?

Richard Reinsch: Now, thinking about your essay. You do something interesting in it. In this, you review three books, The End of History and The Last Man by Francis Fukuyama. Famous book, obviously. And also another famous book, The Clash of Civilizations and The Remaking of World Order. Also, a third consideration is the late Walter Berns’s book on capital punishment, Crime and the Morality of the Death Penalty. How do these works illustrate the way you write about the death penalty and what it means for nations?

Craig Lerner: Well, the two books have been often paired because they present these very competing frameworks for viewing the world and predicting its trajectory. Fukuyama’s book, which to some extent has been caricatured, because I think his thesis is more nuanced than it’s sometimes made out to be. But at some level it is this idea that the principles in the Western enlightenment are being adopted throughout the world. And this is somehow an inevitable ascent of almost a Hegelian necessity. In this view, the world is ascending to a particular world view that will have universal adoption.

And then Huntington two years later counters with a different framework that suggested that he saw that the world was divided now and would, at least as far as we could see into the future, would continue to be divided into these different civilizations that are rooted in different histories and at some very high level value different things, and that this will continue.

Richard Reinsch: Thinking about Fukuyama, who I think is also a student of Alexander Kojeve, that some other future would be a universal homogenous state, more or less. I mean, that’s a simplification of Fukuyama’s thesis, but a liberal democratic world order in which, what? What would that mean though for how we defend that position? Or would it need a defense so much as just verbal articulation and defense that way because its gifts would just be so manifestly good.

What would that mean for punishment? What would that mean for how one would defend these orders? Or would they need to be defended because they’re just good in themselves and that would just be realized? Yeah.

Craig Lerner: It was a small part of Fukuyama’s book, a very small part. I don’t want to make it out to be a crucial part of it, but I was struck that at one point he suggested modern liberal societies would have a decreasing tolerance for violence. He predicted that the spread of compassion, the sense that it’s simply wrong to punish people would gain in wider and wider acceptance. He thought that that would correspond to a decrease in support for the death penalty. And, as a description and as a prediction, that seems to have been correct, in the Western world at least.

Richard Reinsch: The exception of America.

Craig Lerner: And then even in America, sorry.

Richard Reinsch: But, I think also here, you quote as a response, I mean he wasn’t responding to Fukuyama. The book was published in 1979. But Walter Berns’s book for capital punishment. Let me read you a quote from that book and get your reaction. “There is a point in the history of society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly.”

Craig Lerner: Actually this sort of situates that book in a particular time in American history. It’s actually quite interesting. There was a Supreme Court opinion in 1972 which had the effect of imposing a moratorium on capital punishment.

Richard Reinsch: Furman vs Georgia.

Craig Lerner: 1976 there was another opinion that essentially said that with amendments that capital punishment could continue. But at the time that Berns wrote the book, and there were very, very few if any, I think, executions. It is interesting that he wrote at a time in which it seemed as if capital punishment was, if not exactly dead, in its death throes. What’s interesting is that in the years that followed Berns’ book is capital punishment did make a significant return. And actually the number of executions in America increased over the next 20 years, reaching its height around the year 2000 at around 100. Actually, it is interesting that these things go in cycles and so it did reach a low point in 1979, but it returned and I think we’re actually retreating again.

Richard Reinsch: The perception in the ’70s and ’80s was, rightly so I think, of a crime wave in this country, particularly in urban areas. The death penalty became a response of what the revenge, blood lust of Americans had returned. You note in the book that after this Supreme Court opinion in Furman vs Warren, Furman vs Georgia, 35 states reenacted death penalty statutes. What do you attribute that to? And maybe now it’s this perception that the war on crime has been won in a big way. We hear the stories of large cities, New York, Chicago, other places where crime is greatly declined. Although recent upsurge in the last few years I’m told and so similarly does that explain a falling off the death penalty?

Craig Lerner: Well, it is true that there was the crime wave in the ’80s and you can explain in some sense that the increase in executions by that, although I think that it was interesting after Furman that this, I’m not sure how high the crime rates were in the ’70s. I think what was striking to me when I researched this in the early ’70s you had the justices, apparently some of them amongst themselves, they’re wondering whether it is even necessary to abolish the death penalty because in their view, the support of the death penalty was declining and it would evaporate even without any elitist intervention.

And it was so striking that immediately after Furman was decided, you had this overwhelming number of states saying, no, we want the death penalty. To me that was just part of an interesting kind of narrative in which elitist opinion or elite opinion consistently underestimates the depth of the support for capital punishment. And I don’t think that support is simply a matter of assessing crime waves. I think it goes to something deeper about what people think is just.

Richard Reinsch: That would be sort of the elite read of opinion regarding the death penalty that it’s sort of blood lust and that’s about it.

Craig Lerner: And in recent years, the number of executions has gone down actually about 20 or so this year so far, 25 last year, which is again down from the peak around 1999, 2000. But, and even more dramatic, the number of death sentences has declined. I would wonder, I’ll just say one quick thing. I would wonder whether that represents a really significant decline in support for the death penalty or just the incredible number of legal hurdles that are now necessary to be surmounted before a death sentence could be imposed?

Richard Reinsch: In 2015, Supreme Court justices, Stephen Breyer and Ruth Bader Ginsburg, and you used a quote, “The death penalty is dying away and majority of Americans reject capital punishment.” Justice Antonin Scalia astutely responded, “Welcome to Groundhog day.”

Craig Lerner: And the very next year, as I pointed out, as many people have pointed out, there were these state referenda in Oklahoma, Nebraska, and California about the death penalty and the ones in Oklahoma and Nebraska, the death penalty one by two to one or 60% but it will seem even more striking in California. There were two referendum and each one with respect to the death penalty won narrowly. I don’t want to make it out to be overwhelming. But, even in California.

So in the last few months, the Governor of California commuted the sentences, which was totally unnecessary because none of the people on California’s death row are going to be executed. But it was a symbolic gesture. It was noteworthy. It’s still the governor doing it because it couldn’t prevail or didn’t prevail in the referendum.

Richard Reinsch: But that sort of prompts a question and you ask it in your piece. Why does America bother to retain the death penalty? I mean one answer would be, we have an incredibly secure criminal justice system. We can warehouse these people, criminals for the rest of their lives. They’re not a danger to the community. It’s not a question of resources allocation really. So why retain it? Why do we retain it?

Craig Lerner: I don’t want to suggest that there’s not a good argument for abolishing the death penalty in the quite peaceful and orderly conditions of the West. So there are strong abolition arguments. My point is that there are also very strong arguments on the other side. And actually it does seem as if the arguments that have been raised for millennia by virtually every political philosopher who thought about the issue until, Cesare Beccaria, the Italian criminologist in the 18th century. But I mean sort of the monolithic Western tradition on this has been support for the death penalty until 1800 or so.

The founders all thought it was morally justified with just one minor exception. Benjamin Rush. So Abraham Lincoln thought it was morally justified, Immanuel Kant thought it was morally justified. So I mean it’s not like these are odd creatures who we can regard as morally debased.

If you put Abraham Lincoln and Immanual Kant on one side and you’re on the other side, if you were in favor of abolishing the death penalty. So I guess the question is who bears the burden here? If I’m supporting the death penalty, I have Immanual Kant and Abraham Lincoln. You have Benjamin Rush and Cesare Beccaria. So who’s the weightier figure? So I mean, I would just say that this is one way of approaching this, but I would say with respect to why America retains the death penalty is that there are certain crimes that just seem to call for the greatest punishment because the harm to the community was so grievous that anything less than that would somehow be disproportionate and unjust. At least that’s a sentiment that many people have. And I think the criminal justice system to some extent has to reflect the views of the community.

Richard Reinsch: Moral retribution. Would be a philosophy that would support the death penalty, I think. How difficult is it to execute someone inside the United States?

Craig Lerner: Well, it’s extraordinarily difficult. After Furman vs Georgia, there’s a 1976 opinion that essentially said that states could have a death penalty under certain conditions. And over the past 40 years, there’ve been just dozens of precedents and some would say that ever changing goalposts as to what the states must do in order to achieve a death sentence. And you know, actually, first of all, you could say in response, well, it should be very hard. And I don’t question that. It should be very hard. First of all, we are in a criminal justice system in which it’s established that before you can even get a conviction, the state has to prove beyond a reasonable doubt every element of the crime. So it is difficult and it should be difficult. and it should be difficult then to get a death sentence.

And the way it operates today is there’s a completely separate penalty phase in which you have the state introduce aggravating factors and the defendant has an opportunity to raise mitigating factors. And at this point, although it’s never been healthy, constitutionally required, in every state, there needs to be a unanimous and the federal system, that unanimous jury verdict in favor of the death penalty. So only one juror can dissent and could prevent the death sentence.

So there’s simply that mechanism that it’s very hard to secure a death sentence. And then even if a death sentence is secured, then you’re talking about decades of appeals and in many jurisdictions in America today, it’s extraordinarily difficult to prevail in affirming that death sentence.

Richard Reinsch: Also we were discussing Western nations and the abolition of the death penalty almost. It seems also what’s lurking in here though is secularism, progressivism, and individualism, sort of a loss of belief and injustice or truth, accountability for one’s actions. This seems to me, what I think about the West and I kind of situate this within the Roman Catholic church’s response to the death penalty from Saint John Paul the Second forward, which has been at least up until Pope Francis that it was justified, but prudentially unwise, or it shouldn’t be done really anymore in the West.

Of course, he didn’t limit it to the West, but as I thought about that, and the support for the death penalty, it seems to me more of a, I’ll say extension of the enlightenment more than anything else for the retraction of support for the death penalty.

Craig Lerner: Yeah, I agree completely and actually Justice Scalia made this point, various points and he’s not the only one that the decline of the death penalty corresponds to an increase in secularism, not an increase in the religious impulse. And it’s noteworthy that in Western Europe where, which it has declined in its influence that the death penalty has quickly taken hold. And I actually wondered about this and was hoping to do a kind of empirical study, but it does seem as if you know those states in which you’re more likely to find church attendance, you’re more likely also to find capital punishment. So it is nonetheless striking. As not a Roman Catholic, I don’t want to opine on what the Church is doing.

But I do want to point out actually there was a very interesting book I mentioned that you may be aware of it or maybe some of your listeners, by Edward Feser and Joseph Bessettw, which I came across, and it’s By Man Shall His Blood Be Shed. So these are Catholics who are questioning I think the view of Pope Francis on the death penalty. And so they gather a great amount of evidence that calls into question, I think the current Pope’s view that the death penalty can’t be justified. So I recommend that book for it.

Richard Reinsch: And I think it’s also worth pointing out, that’s interesting too just thinking about first a major starring role, so at least within Christianity against death penalty is really more the egalitarian strains of the Reformation, which are really calling into question authority generally, but also government authority. And I think there’s also this sort of attribution to the government of sort of individual agency as opposed to seeing it as a separate entity called to uphold order itself or impose order, maintain it, and that it stands in a trustee relationship. It’s not acting and thinking as an individual.

Craig Lerner: Yes. Actually Justice Scalia made that point in his, I think in his First Things essay on the death penalty back in the 1990s. So I’m inclined to agree with that.

Richard Reinsch: So let’s think about also, in the essay you moved through geographically and civilizationally around the status of the death penalty. Talk about that.

Craig Lerner: So that was I thought one of the contributions of that article is that if you look at the global trends in the death penalty, I mean there’s one way of looking at it, the way Amnesty International does it every year now where you kind of do it the way that the UN General Assembly would do it. You count the nations that have de jure or de facto to abolish the death penalty, and if you do it that kind of way, something like 170 of the 193 nations in the world have abolished the death penalty.

But I thought that that was probably not the best way to approach this. So I thought looking at it through Huntington’s civilizational framework was quite interesting because if you do it that way, that the trends are far, far less clear. First of all just pointing out for a second that of the 170 of 193 nations that abolished the death penalty, if you look at population wise, I mean the nations that have retained the death penalty correspond to over half the nation’s population and over half the world’s population over half the world’s GNP.

The 23 outliers are actually significant nations. But then if you just look through the Huntington framework, you’ll discover that what he calls the Sinic civilization, which is predominantly China, overwhelmingly has retained a death penalty. The Japanese civilization, and this is Japan, when I wanted to focus on because it’s really a complete embarrassment to those who really make a lot about the embarrassment that the United States has retained the death penalty. They always have to gloss over Japan because I haven’t actually crunched this, but I strongly believe that on a per homicide basis, Japan has more executions in the United States and it’s been that way for the past 20 years.

So it’s hard to question Japan’s status as either a civilized or industrialized nation, but they retain a death penalty. And then you go to the other civilizations in the world, I mean the Islamic civilization in the world there, there are nations that have to some extent abolished it, but there are also other nations that have very emphatically retained a death penalty. And so that’s what I go through the various civilizations and it’s unclear whether the West is the dominant or the outlier or in any event, the minority of you here.

Richard Reinsch: And I think also you raised the question, so when we talk about these sorts of issues or the assumption is the hegemony of the West and the inevitability of the West, but that also is something that can easily be called into question. We don’t have to imagine that far ahead in time to see now the rise of China, the ongoing diminishment of Europe population wise, resource wise. And so you begin to think that this is really a perennial question. It’s not something that’s going to be solved by sort of aggressive mentality of the end of history.

Craig Lerner: Right. I mean, it was striking to me is how when we even speak about European abolition, the death penalty, I mean it’s really Western Europe frankly, that has abolished the death penalty. Essentially Europe and Eastern Europe have gone along because they’ve been basically made to by the EU leaders. But if they ever had an opportunity, many people have very strong doubts that the nations of central and Eastern Europe would go that way if they were free not to. So there’s that.

And then the power of the EU to brow beat other nations of the world. Again, at this point, they do have that power, but you know, who knows with population trends and economic trends whether the EU will continue to have that power.

Richard Reinsch: You note in the article, January 2018, the Israeli Knesset voted preliminarily to authorize capital punishment for convicted terrorists and EU delegation to the state of Israel criticized the move promptly. And then also with the question, the nation of Sri Lanka, the EU threatened to withdraw the favor trade status if they reinstated the death penalty. So not afraid to throw their weight around.

Craig Lerner: The Sri Lanka thing struck me as just amazing because the conditions in Sri Lanka is so vastly different from the conditions in Brussels and it does seem excessive to demand that the nation of Sri Lanka abolish the death penalty. And of course that actually was before the horrible Easter Sunday killings. So I mean the conditions in Sri Lanka are just so different from Brussels, but to insist that Sri Lanka have abolished the death penalty seems unfair.

Richard Reinsch: Another form of colonialism in a way.

Craig Lerner: You could suggest that, yes.

Richard Reinsch: Thinking about the death penalty also and the European Union, European Union has no army or armed forces to speak of. And of course many European nations themselves have pared back their defense forces and also have abolished a death penalty. Did you see a connection there at all in a sense of an unwillingness to think seriously about what order requires and the willingness to defend one’s community?

Craig Lerner: Right. I think this leads into actually in your essay you connect the death penalty or Europe’s attitudes for the death penalty through the work of Pierre Manent. I think that’s where leading with this question is that it seems of a piece that an unwillingness to confront the state of nature that lies behind civil society goes along with both an unwillingness or difficulty in retaining an army as well as the difficulty in pursuing the death penalty against those who have committed horrible crimes. So you could see them at some principled level being the same.

Richard Reinsch: Yeah, and when I wrote that essay, it was in 2018 after Pope Francis had made the decision that somehow within Catholicism he could unilaterally change the teaching on that and condemned the death penalty outright. And then I began to wonder about Pierre Manent’s point when he looked at his native country of France and also European nations more broadly, and he looked at America and said, “What really separates America from Europe is their willingness to defend their nation state evidenced by the ability to project force abroad.” He said this in 2007.

But also their retention of the death penalty because the use of the death penalty is to suggest that the state of nature never goes away. And the European insistence is that somehow we’ve surmounted that and there’s nothing really to be afraid of. There’s no danger here. There’s just sort of permanent prosperity. And Manent said to the effect, if you make that move, that somehow nations begin to lose moral authority before their people. And I’ve reflected a lot on what he means by that. And I think it’s sort of an evisceration of any real devotion or standing on the part of citizens to their country. And the refusal to defend it in a lethal way.

Craig Lerner: I think that putting it in a favorable light, the impulse to execute criminals is a way of affirming your sense of a community so that the person who was killed or the family of that person, they’re not strangers to you. They’re part of a community that you value, you treasure it. The harm that was done to them is a harm that was done unto you. You feel anger about that. And anger is not something that we want to promote, but it’s not something we want to extinguish. We want to channel it in some way that’s how they can do so. Assuming that it’s not a lynching, it’s after appropriate judicial process.

So you could say that the impulse to execute a criminal is a willingness to absorb a great cost because the person who died was not a stranger to you. And similarly, the willingness to go to war to defend one’s nation is a sense that the nation or the community means something that you’re willing to absorb a cost. So I think that the two are united in that way. It could be seen as united.

Manent makes another connection about the refusal to put the worst persons to death in your country. Also, it seemed to go along with the unwillingness to defend your country in war. That is, how could I be asked to do this if the government doesn’t even do this? It’s sort of another interesting way to reflect on it.

Craig Lerner: Right. And now I think Walter Berns in his book on the death penalty talks about the majesty of the law as being most displayed by the use of the death penalty. And if law is simply seen as an instrument of self interest, it kind of loses its power. And sometimes the death penalty is a way of a nation saying, this is something that the law is something more than simply the instrument of self interest. It’s essentially greater than that.

Richard Reinsch: You end your essay with an interesting account of the trial of the Tsarnaev brothers. Dzhokhar Tsarnaev who participated in the Boston marathon bombing in 2013 and along with his brother who was killed, which I didn’t know this, that the federal prosecutors sought the death penalty as punishment. And in this sentencing phase they had to go through the sort of celebrity Catholic sister Helen Prejean who spoke out against imposing the death penalty on him and you sort of quote the back and forth between the prosecutor and Prejean. And what he nicely does is communicate to the Boston jury, she’s not a part of our community. She does this all over the world. She’s sort of a celebrity in this regard, humanitarian celebrity. That’s really how she’s seen. So why would you necessarily listen to her? I thought that was an interesting, interesting part of the essay.

Craig Lerner: And I had the fortune of talking to one of the prosecutors on that trial team and he was discussing the strategy that they were thinking about. How to cross examine that witness, which they knew she was going to come and testify and they had a sense that she was going to come and testify that she had spoken to Tsarnaev and that he was repentant. And Helen, she’s a quite sympathetic figure, especially to probably a predominantly Catholic jury in Boston. And so they had to think about how to undermine her testimony. And so they just needed a few questions to bring out that she really wasn’t from Boston. She was kind of a globe-trotting as you say, celebrity.

And so they did get the capital sentence there. And I should just say that, I mean it was really testament to the horror of that crime that the jury returned the death verdict. Because you have actually, there are several cases in the past few years in which really quite, quite heinous crimes and the jury has not returned a death penalty. So, but in that case the jury did so.

Richard Reinsch: And I thought also, we’ve been bringing it up as we’ve been talking about sort of this aspect of defense of the community, the Boston marathon, at least the things that I’ve read about, it was really a significant event within the city for the city. It’s well attended and regarded as sort of an annual event that marks the changing of seasons among other things. And so that all seems to go to that idea as well of this is our place and you tried to destroy it.

Craig Lerner: Right. There are actually a number of interesting things about that because actually that the prosecutor told me one. One of the victim’s family in that case actually requested that federal government not seek the death penalty and they pursued it anyhow. Which is interesting because it really makes the point that in some sense the criminal trial that the client for the prosecutor is not quite the victim. It’s the community in general. Of course the victim is someone extremely important in a criminal trial and I don’t want to discount that, but, the harm was to the entire community of Boston, not just to the people’s families of those who died or were injured.

So it was a controversial decision on the part of the federal government there to seek the death penalty. President Obama’s Department of Justice to seek the death penalty because Massachusetts has abolished the death penalty. One of the victims did not want the death penalty, but nonetheless, then they pursued it and they did get a verdict.

Richard Reinsch: I’ll conclude with your last sentence from the essay, “The evidence suggests that the death penalty is far from dead.” Craig Lerner, thank you so much.

The Populist Presidency vs. The Founders' Presidency Mar 04, 2020

Presidential scholar Stephen Knott talks with us about his new book The Lost Soul of the American Presidency.

Judicial Supremacy and the Constitution Mar 10, 2020

Contributing editor Greg Weiner discusses his new book The Political Constitution: The Case against Judicial Supremacy.

Managing Whiteshift Jan 12, 2020

Eric Kaufmann discusses his new book Whiteshift: Populism, Immigration, and the Future of White Majorities.

Brexit Shenanigans and the Old English Constitution Jan 12, 2020

Helen Dale, Brexit commentator extraordinaire, discusses what’s left and what remains of Britain’s attempt to evict the European Union.

Justifying Originalism Mar 10, 2020

This edition of Liberty Law Talk features a discussion with Lee Strang about his new book, Originalism’s Promise.

Richard Reinsch: Our guest today is Lee Strang, author of Originalism’s Promise: A Natural Law Account of the American Constitution. Lee, what do you Originalists want?

Lee Strang: What do Originalists want? I think it’s changed in some ways over the decades of modern Originalism’s revivals and through the 1970s, but some things have changed, some have remained the same. Some of the things that have changed is the end state towards which Originalists argue that Originalism leads. There’s been a flourishing of scholarship, especially since the late ’90s. Professor Barnett’s book coming out in the early 2000s about providing for the protection and establishment of natural rights. More recently, John McGinnis and Mike Rappaport’s book argues that Originalism leads towards good consequences.

I think one of the things that you see in all of these different moves, all of these different normative accounts is that a reason or the reason why Originalism leads to these different state of affairs, and this is the consistent part over the years, is because it provides on balance and overall and systemically, a relatively determinate way to access the Constitution’s legal meaning and then to implement it over time. That has the kind of corollary that many Originalists, although not all, identify, which is that judges are able to identify and then follow, and then be criticized for not following the Constitution’s original meaning.

I think there’s been some change over time, but I think the key insight that Originalism offers is that it allows Americans, and especially judicial officers, to see the Constitution as a legal document that’s judicially enforceable in a principled manner.

Richard Reinsch: Let’s think more about the change within Originalism. When I was an undergraduate, when I was in law school, not that long ago and for some years after, I thought I knew pretty clearly what Originalism was, and I thought I knew pretty clearly who my opponents were. They were the living Constitutionalists, they were the Progressives, they were those for whom the text was an occasion for invention or construction for the development of new rights or the diminution of things clearly in the text.

I thought, “Those are the people that I’m trying to defeat with an original meaning.” We could have a discussion and a debate amongst Originalists about what the meaning was of provisions and clauses in the text, but we all knew we were in the same enterprise. I no longer think that when I think about Originalists.

Now in fact, and I don’t think I’m unique in that regard, it seems to me there are many camps and philosophies within Originalism. You write about those in your book. You write about even a Progressive Originalist at Yale Law School, Jack Balkin, and his school of Originalism jurisprudence, which is giving voice in some way to popular Constitutional movements. I mean, that’s a succinct description, but you can elaborate more on that.

How do you see it? When I think about the Libertarian Originalists, and then of course, there’s original meaning, original intent. There seems to be always, though, politics lurking here. Even though Originalism claims, or I always took it to be a claim that we’re not about politics or an end. We’re about understanding the Constitution itself.

Lee Strang: Yeah. Richard, that’s a great question. It’s one that I’ve been thinking about, especially since reading a chapter by Steve Smith, maybe four or five years ago in a collection that was called The Challenge of Originalism. Steve had a chapter in there titled, I think it was “Give Me That Old Time Originalism.”

It had lots of theological and religious connotations and references in it as well. Basically, what he said was something similar to what you’re saying, that there’s the old-time Originalism, which was simple. Which had the connotation of being pure and consistent, relatively easy to identify, relatively easy to implement. Then now you have today, where you have a cacophony of people claiming the mantle of Originalism, but seeming to do things and have commitments that don’t seem to be consistent with each other. I think it’s a live issue with Originalism, to what extent is Originalism a coherent phenomenon, in a way that it at least appeared to be earlier?

I guess I’ll tell you my current thoughts on that are, and I had to think this through as I working on the book. That the thing that has helped me evaluate the extent to which Originalism is a coherent phenomenon is both there’s a theoretical and then a practical part. The theoretical part comes from the concept of a focal case, which I take from John Finnis, inparticular, the beginning of his seminal book, Natural Law and Natural Rights. Then the other theoretical component is from Larry Solum, who’s identified what he describes as a number of core theses of Originalism.

Finnis and the focal case idea is that both in the natural world and in the theoretical world, there are ways to describe phenomenon that are examples of the phenomenon, that in their most healthy, most excellent version. Then there’s marginal versions of that phenomenon. One example would be an oak tree. There’s hale, hearty, old acorn versions of oak trees, and then there’s the kind of scrawny marginal versions of it. That, I think, is a lot of what you’re describing, what I’m seeing as well. Then in the sense with what Larry has been describing, where Larry’s claim, which I think is accurate, maybe with one possible exception that I haven’t worked through yet, is that Originalists are united around two core theses. One is the fixation thesis and one is the contribution thesis.

The fixation thesis is that Originalists argue that the Constitution’s meaning was fixed when the text was ratified. Then second, Originalists argue that officers implementing, following the Constitution, have to identify, have to follow the original meaning, and it has to contribute to the outcome of those lawmakers’ decisions. For judges, it has to contribute to the whole case. When you combine those two things together, I think what it suggests is that there continues to be a focal case of Originalism. When you think of the different versions of Originalism that are out there … You mentioned some. Original meaning, original method, original intent. All those folks are committed to both of those propositions.

In practice, when you scan through the list of people who are self-described and widely recognized as Originalists … We talked about Randy Barnett and John McGinnis and Mike Rappaport. They also are committed to that second proposition, that the original meaning contributes to the outcome of judicial decisions. In fact, one of the things that makes Originalism so potentially challenging to non-Originalists and to American legal practice is, that for the most part, Originalists pretty robustly embrace the contribution thesis. Because, for example, Professor Barnett famously, or depending on other people’s perspective, infamously has argued that the Constitution’s original meaning should trump all non-Originalist precedent, and which could have, critics argue, a dramatic destabilizing effect.

I think there is a lot of debate in Originalism. The debate is, typically, around what the focal case means, and how it plays out, outside the focal case, but it’s not about, whether there is…

Richard Reinsch: A lot of people will say, “Focal case.” Be more concrete there.

Lee Strang: The focal case is the fixation thesis and the contribution thesis, or I think Larry calls it hypothesis. For example, regardless of one’s stripe of Originalism, when you’re trying to decide, “How should NFIB vs Sibelius be decided?” Or, “How should Wickard vs Filburn have been decided under the Commerce Clause, Federal Commerce Clause power?” That all Originalists are committed to, “We follow the meaning as adopted in 1789, and then judges should follow that when they’re deciding Wickard or NFIB vs Sibellius.” That’s an example of focal case. Then there’s, I guess things outside the focal case or a debate about what or shouldn’t be in the focal case.

For example, Originalists disagree about how we understand the fixed Constitutional meaning. Original intent people argue, “We look to the intended meaning, original meaning, look for the public meaning.” In original methods, you look for the contemporary modes or methods of interpretation to identify the meaning when the text was ratified. There’s debate about how we understand the fixed-ness or the fixed meaning, but everybody agrees that there is fixed meaning and that we should apply it in concrete cases.

Richard Reinsch: You talk about the construction zone of many Originalists. This is, of course, a widespread criticism of Originalism, that protects itself as under-determined. It doesn’t speak, the law runs out, to use a phrase, the Constitution runs out and a doctrine has to be constructed to make it coherent with all these cases and challenges that are brought.

Does not the inherent need for a construction zone lessen the power of Originalism? This is something that a lot of Originalists contend is necessary. What do you say?

Lee Strang: Yes. I’m kind of two minds about this, and maybe that’s just my disposition, where I kind of end up in the middle on a lot of these issues. On the one hand, it seems clear to me when I look around at other related human phenomenon like literature or communication, generally, or law inparticular, that I see situations of under-determinacy. It would be surprising to me if one area of human endeavor that was exempt from under-determinacy, where the phenomenon doesn’t give us one right answer, would be constitutional interpretation.

Prima facie, I’m skeptical that there wouldn’t be a construction zone. On the other hand, I share what you identified as a concern or criticism of Originalists who have adopted a robust construction zone. You mentioned earlier Professor Balkin from Yale as being an example of that. Because that, I’m confident, becomes a situation where the kind of a minnow of construction swallows the whale of Originalism’s commitment to fix constitutional meaning.

What I try to do is identify what I think is the reasonable insight for Originalists who believe in a construction zone which, as I described earlier, I think it’s a fact of human life that many of our endeavors don’t cash-out in determinant answers, and law is one of them, and the Constitution is also one of them. I try to give some examples and reasons to think that that’s the case. Like for example, the vagueness of language, generally, of legal terms in-particular.

Then I also try to identify ways in which I think that the construction zone is modest in scope. Here, I rely a lot on the work, which I think is just really excellent, of John McGinnis and Mike Rappaport, talking about contemporary rules of interpretation. I would call them rules of interpretation, which I think existed at the time the original Constitution was adopted and ratified. Also later, for example, with the 14th Amendment.

I try to identify what I think are three key closure rules. Rules of interpretation that narrow what would otherwise be a prima facie, broad category of construction. Just one example, this is one I borrowed from McGinnis and Rappaport, is that if a judge is faced with what he or she perceives as under-determined original meaning, in other words, it doesn’t seem to give him enough information to answer the legal issue before the judge, what the judge should do is rely on the best available evidence.

There’s two parties before the judge. One is arguing the original meaning is x, one is arguing that it’s y. What the judge should do is, like judges always do, take the argument that is supported by the most, what I call, legal evidence. The most argument and historical evidence combined. When you do that, that means that a large number of cases that would otherwise be under-determined, because you don’t have maybe a 95% degree of confidence or 100% degree of confidence, become closed, become answered because you have a degree of confidence that one party’s arguments are more weighty than the other party’s arguments.

To summarize, I think there is a construction zone, but I think Originalism has built within it rules of interpretation that narrow it in a way that makes it, acknowledges the under-determinacy of the Constitution’s original meaning, while it doesn’t undermine Originalism overall.

Richard Reinsch: George Will was just on this program to talk about his new book, The Conservative Sensibility. In that book, he has a chapter called “The Judicial Supervision of Democracy,” where he contends for something pretty similar to this idea of judicial engagement, that one of the scholars you cite in the book, Randy Barnett, advocates.

George Will argues that really, when we think about the Constitution, outside of the Declaration of Independence, second paragraph of natural rights, it really comes unbound and means nothing if it doesn’t have that content anchoring it. Judges should interpret the Constitution in light of those natural rights. The title of that chapter, “Judicial Supervision of Democracy,” does Originalism point in that direction? I guess another way to ask my question, where do “We the people,” in the Republic and the accountable branches of government, fit into Originalism?

Lee Strang: That’s a good, complex question. On one point, Richard, what I would say is, first describe how I would answer these two questions. The answer to both your related questions, one of which is, to what extent are judges authorized to protect natural rights through Constitutional interpretation and their judicial power? Then relatedly, to what extent is popular democracy or the role of the American people play a role within their own self-governance, are empirical questions within Originalism, that it depends on what the Constitution’s original meaning is, how it cashes-out. Does it authorize, in fact, judges, in the exercise of judicial power, to utilize robust interpretations of natural rights?

You mentioned Professor Barnett. I think Professor Barnett has the strongest argument in the scholarship out there, that the Constitution’s original meaning is strongly rights protective, and my own … I even investigated that historical claim fully, but to the extent that I have, I think that it’s most robust vis-a-vis the federal government, and that it’s less powerful regarding the ability of state governments to govern their people. On the flip side, what role do the American people have? I think Originalism provides a really robust and certainly, a relatively more robust role for the American people in their own self-government than most versions of non-Originalism. One exception I’m thinking of is Eric Segall and his version of living Constitutionalism.

How does Originalism do that? It does that through a number of mechanisms. One, of course is, and I think Professors McGinnis and Rappaport do a good job of making this argument that a revivified culture of Originalism would help Americans exercise their civic muscles and return to the practice, which I think is salutatory and although contentious, of doing Article Five Amendments. Second, a properly interpreted Constitution, I think, leads to lots of questions, lots of legal questions, lots of social questions that the Constitution doesn’t answer. For example, abortion. I think what the Constitution says is that abortion is a state’s right issue within its area, and then slightly a federal issue on inter-state issues. Those would be areas where the American people, either through their state or national representatives, express their policy views regarding abortion.

Then third, I think what Originalism does is it creates a culture where Americans redevelop a habit of engaging with their fellow citizens on answering, either legislatively or not, or just leaving the issue alone, fundamental issues. What I have in mind here is the issue of assisted suicide, which in the early 1990s, it looked like the issue of assisted suicide was going to follow the same route as abortion, where people were going to the Supreme Court, asking for the Court to constitutionalize their right to assisted suicide. The Supreme Court, in Glucksberg vs Washington, famously turned that back. It was 1995.

Since then, it’s not that the issue has dropped off, it’s that the issue has become a state-focused issue. Some states have embraced assisted suicide, euthanasia, and many and most states have not, but Americans have exercised their civic muscles in making those questions. I think it’s an empirical question for natural rights and/or American people’s self-government. To the extent that I’ve looked into it, I think that Originalism, on the state level especially, emphasizes the ability of Americans to govern themselves.

Richard Reinsch: You make a claim in the book that Originalism, with regard to constitutional interpretation, is our tradition. That’s an interesting claim. Maybe talk about that some more.

Lee Strang: There’s a lot of debate over to what extent our Originalist claims today, in other words, the claim that we should follow the Constitution’s original meaning in cases or controversies, is that consistent with the practice in the early republic? I think where this arises is a misplaced criticism by living constitutionalists that if Originalism wasn’t the practice in the early republic, that would mean that Originalism today was fundamentally and internally incoherent. I don’t think that’s true.

For example, it could certainly be the case that even if the framers or ratifiers didn’t recognize the value of Originalism, if we today have sound reasons to recognize it, we should follow Originalism. That’s not the move that I make, but I think that’s where this issue comes from. There has developed a rich, secondary literature talking about early interpretive practices. The people that have been most persuasive to me are Christopher Wolfe, who’s now at the University of Dallas, and Jonathan O’Neill, who I believe is at Georgia State, who have gone through the history of interpretation beginning with pre-constitutional times. Like for example, in English Colonial times, up to today.

Their claim, which is supported by copious citations and examples from the text and practices of the time, is that even though they wouldn’t use the label Originalism at the time, and even though it wouldn’t be as sophisticated as people argue today, both the goal and the tools of interpretation in the early republic and continuing up until the early to mid-20th century, were clearly Originalist practices.

I think Professor McGinnis and Rappaport’s more recent work on original methods is contributing to that. It’s providing an additional analytical tool to show that in 1787 or 1789, for example, if there was debate about what the Constitution meant, one of the common moves among interpreters was to resort to these conventional rules of interpretation.

In fact, in a previous article, I went back to the debate in the first Congress over chartering a national bank, which was the biggest constitutional issue in the Early Republic. What I saw was people, prima facie, disagreeing over whether the Necessary and Proper Clause authorized Congress to charter the first bank of the U.S., but all of them concluding after using rules of interpretation that they all seemed to agree on, that the Constitution did give a determinant answer to that question.

Richard Reinsch: What do you think, so you read the First Congress debate over the Bill of Rights. It’s pretty sparse, and yet the Bill of Rights has emerged.

The meaning, the text of the Bill of Rights, particularly, say the First Amendment, What would you do with that? You have pretty thin material to work with in terms of whatever you want to call it, original intent, original meaning. How would you sort of work through that?

Lee Strang: I’ve actually, to the extent that I’ve reviewed the original meaning, for example, of the Free Speech Clause of the First Amendment, I found it to be challenging, in part, for reasons that you gave, Richard. Let me step back and just talk a little bit about how one would go about trying to ascertain the original meaning of the Free Speech Clause or Free Exercise Clause. One thing you would do, of course, would be you’d look to see, how did contemporaries describe the meaning of those clauses? Originalism would also look to try and find the public meaning of the words, and then the component phrases there.

The area that I’ve done, actually, kind of the most research on the First Amendment has been the Free Exercise Clause. I’m actually pretty confident that there’s a right answer to both what the components mean. What does free exercise mean? What does religion mean? Then what does the clause, overall, mean? It’s not because of the robust debates in the First Congress, although I think they provide some evidence on that point. Or the debates in the state ratification conventions, which we have very little evidence of. It’s more the background public meaning taken from state constitutions, state laws and the public meaning of the words themselves.

I think the First Amendment is a relatively more challenging one than let’s say Commerce. The Commerce Clause, I think that meaning has been clearly liquidated by Originalists both in the early republic, but also today. The Free Speech Clause, I think, is more challenging than the Free Exercise Clause. It reminds me of one additional point.

Richard Reinsch: You used the word “liquidate” just then. What do you make of James Madison’s position, where he clearly thinks it’s unconstitutional on the text to have a bank. He loses policy-wise. He loses in the court of public opinion, and he comes back later in his presidency and acknowledges the constitutionality of the bank, not necessarily because he has been convinced, but because the people had liquidated the meaning and had determined that it was, in fact … On that basis, the acceptance of the people, and over the course of elections, a judicial decision, that somehow, this could now be reconciled with the Constitution. How does that fit in within Originalism analysis?

Lee Strang: So I think it depends on what we mean by liquidation.

Richard Reinsch: Well, the way Madison used it is the Constitution was liquidated through republican practice. Not necessarily through the techniques of academics using Originalism.

I’m familiar with some of the liquidation scholarship, like Will Baude or others but I’m not sure it’s the way the Founders meant it, particularly in the Federalist Papers.

Lee Strang: So I guess my view is on liquidation, that it was widely accepted as a phenomenon. I think, and this is what we mean by liquidation. That it presupposed that there was under-determinacy over the thing being liquidated. I think we may be disagreeing over what Madison’s views were about the robustness of the determinacy of the Necessary and Proper Clause not allowing Congress to charter a national bank.

Richard Reinsch: Yeah, no. He never changed his mind. He thought the Constitution didn’t allow it, yet he relented on his view because he thought the people had chosen to accept it. Over time, that republican process had not changed the meaning of the Constitution necessarily, but now allowed it to be acceptable in some ways. It’s sort of a tricky description, how he walks his way through it.

Lee Strang: I think that most people at the time would have described liquidation as … I think this is still what Madison’s description was of the phenomemon, that there was disagreement over the meaning of the Necessary and Proper Clause. He had one view, he was confident in that judgment. Other people were equally as confident in their judgment, so it seemed like that was a situation, from Madison’s perspective, of under-determinacy that allowed the practices, so adoption through Congress, approval by the courts, to quote, liquidate that meaning. I think it’s a closer question, although I’m not sure. I don’t have a firm view on this, of what if the Constitution had determinably said x and the meaning had been, quote, liquidated to not x? That, I don’t see evidence for or as much evidence for in the non-judicial branches.

The research that I’ve seen so far suggests that the ability of a federal official to follow something different than the original meaning was limited to them exercising powers that authorized them to do that. Judicial power, I’m confident, allowed federal judges to follow non-Originalist interpretations in some situations, but I haven’t seen similar evidence that it would allow congressmen or presidents to follow non-Originalist meanings, as a determinatively non-Originalist meaning. I think there’s liquidation. I don’t think its bounds extend … tentatively, I don’t think its bounds extend to determine original meaning.

Richard Reinsch: The book is Greg Weiner’s book, Madison’s Metronome, where he kind of walks through this analysis that Madison had just recognized his constitutional understanding had been sort of dismissed through a public contest. Back on this point, we were talking about Originalism is our tradition and yet, Robert Bork, Scalia, other thinkers, other judges and legal thinkers are seen as almost counter-revolutionary type figures. That sort of sparks the question, okay, if it was our tradition, when did it go into eclipse and why?

Lee Strang: The story that I tell is one that I think fits most of the scholarship on this point, which is that in the late 19th, early 20th century, for a variety of reasons, Originalism came to not be the practice, or at least not the rhetorical practice, in many ways, the substantive practice of the Supreme Court. I give a number of reasons for that. One area that I’m most familiar with, just because of my teaching has been administrative law. Of course, the administrative state started to grow in the late 19th century with the Interstate Commerce Commission being the first modern administrative agency. Then continuing in the Progressive Era, then really flowering under the New Deal.

The administrative state contained, was motivated by a number of political, ideological and jurisprudential views, and it necessitated a non-Originalist view of the Constitution. Because you got to make the claim that you can’t have modern administrative agencies that are consistent with the Constitution’s original meaning. My argument is that by 1945, 1947, that Originalism, certainly rhetorically and in many ways substantively, had ceased to be the practice of the Supreme Court and most of American legal culture. It became exotic to make Originalist arguments, and at the same time, the political landscape, the practice of Americans and certain fundamental practices of the Supreme Court didn’t change.

For example, to my knowledge, there’s not a case where the Supreme Court has said, “The Constitution’s original meaning is x and we’re following not x today.” That the Supreme Court consistently, at least rhetorically, says it’s following the Constitution and its original meaning. Or, “We still follow this written document in the National Archives,” which by non-Originalist lights doesn’t make much sense.

It may be, in fact, wicked to do so because of negative provisions and unjust provisions in it, and yet, all federal officers take an oath to that document, and identify that document as having come from a specific set of humans at a specific period of time. My argument is that the written-ness of the Constitution, the provenance of the Constitution show fundamentally that the underlying practice hadn’t changed, and so that on the surface, there’s been a lot of Originalist overlay, but deeply there continue to be fundamental Originalist commitments of our practice.

Richard Reinsch: What about say the sociological jurisprudence of the Progressives, most prominently in Brown vs Board of Education? Do you find that to be an opinion where … I mean, it seems to me, yeah, there’s the text, but what they’re really concerned about is explaining to you just how bad unequal schools are. I get that but the reasoning there is, as many people have pointed out, not entirely satisfactory.

Lee Strang: I love teaching Brown for a variety of reasons. It’s a very important opinion, of course, substantively. One of the reasons I like teaching it is that, I think it’s an example, I don’t even have to comment on it. My students are underwhelmed when they read the arguments. They expect some magnificent edifice of legal reasoning and they’re just … It’s kind of like the same response I get when the students read Roe vs Wade. It’s even if they like the result, they’re just really underwhelmed. I think one of the key points of the reasoning that supports my claim in Brown is that the Court first had to dispose of the original meaning of the Equal Protection Clause. It didn’t do it by saying they were reaching an opposite result.

What the Court said was that the original meaning was indeterminate on this point, because the phenomenon of public education and racially segregated public education was new, and something the Framers hadn’t envisioned. Now, putting aside whether those claims are right or wrong, what that showed was that the Court was claiming the original meaning was indeterminate, and therefore gave it rein to utilize, in its view, these other tools of legal analysis. I think Brown is consistent with, on that fundamental level, Originalism. I also think the outcome as well. That fundamental … Even though the rhetoric is not as you were pointing out, Richard.

Richard Reinsch: In this connection with tradition and Originalism, you argue in the book, you take on arguments in the book that Originalism would lead to unjust outcomes. That’s the argument of many opponents and/or, there are sins, widely regarded in the American past, and Originalism couldn’t resolve those in a way that public opinion would accept, and that’s a mark against Originalism.

Prominently right now, we’ve just had The New York Times, in its 1619 Project, argue that our country is built on slavery, basically. This would be one of them, and of course, we see a Progressive jurisprudence of Progressive scholarship. There’s this move to tie more and more provisions of the Constitution to protecting slavery. How would you respond to all of that?

Lee Strang: So I think there’s certainly some truth to the claim. In some cases, a lot of truth to the claim, that at different points in time, the Constitution’s original meaning had been and led to and perpetuated unjust relationships between human beings, and slavery is the kind of keystone example for that. If you were to ask me, in 1862 for example, whether we should follow the Constitution’s original meaning, what I would say is, “We can ascertain it. If you take an oath to uphold the Constitution, you’re obligated to do it,” but at the same time, I would question whether one should enter into federal office and take on that obligation because of the perpetuation of that institution of slavery. That’s not today, right? Instead, my argument is that the Constitution’s original meaning today creates a basically just legal system. Not perfectly just. Certainly, not by my own lights either.

There are a lot of things that I would like to be, to have changed in the Constitution’s original meaning. More fundamentally, what I argue, Richard, is that the argument that one should judge an interpretive methodology by the policy results or substantive results that it cashes-out is a misplaced view. I certainly don’t teach my law students to view law and the legal process and the judicial process as being solely, or entirely, or even mostly about the substantive result.

What I try to do is tie a picture of law coordinating Americans, and then tie that to the Constitution. Just like the broader American legal system, or the legal system of Ohio where I’m at, creates a basically just legal system. Therefore, officers who are members of that legal system and swear an oath to that legal system, should follow it because of the benefits that Ohio’s legal system provides. Similarly, because the benefits that the American legal system, fundamentally resting on the Constitution provide, that judicial officers have sound reasons to continue that basically just legal system.

I’m acknowledging, certainly historical and even current injustices in the original meaning, but that’s not our standard for judging interpretive methodologies. Instead, what we say is that in interpretive methodology, the interpreters have sound reasons to perpetuate the basically just legal system that their interpretations are a part of.

Richard Reinsch: Many would argue, cynically perhaps, Originalism, though, always has to find a way to accommodate hard cases like Brown, which Raoul Berger, an early originalist, said was wrongly decided under Originalism. Then came the famous Law Review article by Michael McConnell which helped Originalists get Brown right.

Isn’t Originalism, though, going to have to do the same thing with Obergefell vs Hodges?

Lee Strang: I’m not actually aware of any attacks on the Originalist bona fides or lack there of, of Obergefell. There’s scholarship, for example, by Steven Calabresi that suggests that Obergefell is consistent with the Constitution’s original meaning, although I frankly just don’t find those arguments persuasive at all.

Richard Reinsch: Calabresi is one of the founders of the Federalist Society. He’s an Originalist.

Lee Strang: Yeah. An Originalist for a long time.

Richard Reinsch: I can think of some Originalists, a lot of The Volokh Conspiracy writers love the result. They criticized it in various ways. It seems to me, it’s inherently the political thing that comes out, and Originalism has to find a way to accommodate it. How do you see that?

Lee Strang: So on the one hand, when I think, so what’s a legal system’s purpose? A legal system’s purpose is provide a mechanism for people to live together as well as possible. Legal systems are run by human beings who make mistakes, sometimes unintentionally, sometimes intentionally. Justice Kennedy authored Obergefell. I think it’s inconsistent with the original meaning and I don’t know, intentional, unintentional, whatever. I don’t even know if he cared about what the original meaning was.

Any viable legal system that’s trying to help people live together is going to have built into it a mechanism to account for mistakes. Originalism has that mechanism, primarily through a theory of non-Originalist precedent. I push against the premise of your constructive criticism that if Originalism is able to accommodate non-Originalist decisions, or it seems like it does all the time, if that’s somehow a flaw, I think it’s only a flaw if the accommodation undermines Originalism’s fundamental commitments.

Because otherwise, I think that Originalism actually is virtuous for having accommodated some non-Originalist precedents. In fact, one of the reasonable criticisms of Professor Barnett’s view of Originalism is that his view would lead to dramatic destabilization of the American legal system because of so many decisions being overruled in such a short period of time. In fact, he recognizes that, right? In some of his scholarship, Professor Barnett has argued that judges should slowly overrule the non-Originalist precedents using their equitable powers, but that argument there is under-justified.

I think even people within Originalism who would be sympathetic to your view, which is that Originalism gets co-opted over time or has to fit with political or policy views, recognize that to be a functioning interpretive theory for a functioning legal system, it has to be able to account for mistakes, and I think Originalism does. At the same time, it has to have a mechanism that it doesn’t accept everything, right? Because then it becomes what you said, which is just another political manifestation.

What I’ve argued is that judges have an analysis, it’s not determinative. In other words, reasonable people could disagree. That takes into account three factors. One is to what extent is a decision, Obergefell, Brown, Roe, whatever, Wickard, inconsistent with the original meaning? Second, to what extent would overruling the decision harm rule of law values? Then third, and this is maybe the most provocative part of the analysis. To what extent does the decision under consideration reach normatively attractive results? Of course, people are going to disagree on that third point.

Richard Reinsch: That’s justice, right. The good.

Lee Strang: Does Brown, does Roe, does Obergefell create just relationships between Americans, or does it detract from it?

Richard Reinsch: Switching gears here, you also write a lot about Aristotle in this book, which I find interesting and a lot of others will find interesting. Does Aristotle help us think or bolster our thinking about Originalism?

Lee Strang: There’s lots of different individuals that I could have relied on. What I try to claim is that this way of approaching philosophy, this Aristotelian philosophical tradition, starting with Aristotle. I think Thomas Aquinas was the great synthesizer. Then there are modern exponents, John Finnis, Robert George and other people, so I try to look at this body of thought set in motion by Aristotle. For the most part, being faithful to Aristotle’s description of humans and human society.

Would Aristotle have something to say about Originalism? The answer, I think, is clearly, “Yes.” Because he has something to say about humans living together, in both parts, right? He has something to say about what it means to be fully human. He describes the ways in which, for example, justice is both an internal virtue but also a norm that humans should follow in their lives and in their interactions with each other. I translate that over into a conception of the common good that the American Constitution’s original meaning is the key mechanism to help American’s today pursue. Aristotle’s got a lot to say about Originalism.

Richard Reinsch: Well, I like that. Lee Strang, thank you so much for joining us today to talk about your new book, Originalism’s Promise: A Natural Law Account of the American Constitution. This has been lovely. I appreciate it.

How Sheen, King, & Falwell Changed American Politics Mar 10, 2020

Long-time contributor to Law & Liberty, James Patterson, discusses his new book, Religion in the Public Square.

Richard Reinsch: Today we’re talking with James Patterson about his new book, Religion in the Public Square: Sheen, King, Falwell. James Patterson teaches politics at Ave Maria University and I’m delighted to say, is a frequent contributor to Law & Liberty. James, glad to have you on the program.

James Patterson: It’s good to be with you, Richard.

Richard Reinsch: Congratulations on your new book just out with Penn Press. I thoroughly enjoyed reading it this week and preparing for this interview. Before we get to that, though, James, maybe introduce yourself more to our audience. You’ve been writing some for Law & Liberty. You teach at Ave Maria, located-

James Patterson: That’s right.

Richard Reinsch: in South Florida, a new university outside of Naples, Florida, I’m told. I’ve never been there. I’ve been to Naples, not to your university. I need to come sometime. If you follow James Patterson on social media you can frequently be treated to scenes from his family running across the state of Florida in the family auto, I should say motoring, as they escape oncoming hurricanes with great commentary from James about their adventures.

James Patterson: Yes. That’s the next book project. It’s the travel log from Irma and other such events.

Richard Reinsch: You really make it fun. One was about, the great thing about fleeing a hurricane in Florida is all the great scenery, but it was you surrounded by parking lots.

James Patterson: That’s right. When fleeing Irma, we drove an unbroken trip west and most of the time, when I had time to take pictures, it was in parking lots of Panera’s. My daughter, at one point, is delusional in one of the photographs. I was very proud of her for holding it together, considering she had no expectation that that afternoon that she was just going to get trucked to Texas.

Richard Reinsch: Also Ave Maria, I’m told, a new university built on or near a swamp … Frequently encountering wildlife, I’m told, is part of the job description at Ave Maria.

James Patterson: That’s correct. I live in a neighborhood where there’s considerable controversy over the placement of garbage cans too late at night, or overnight. As a result, the bears come to our neighborhood relatively frequently, now during the day. They just come up and down the street.

Richard Reinsch: They’re fun black bears, right?

James Patterson: These are just, yeah, they’re very sweet … No, I’m just kidding. They’re black bears, but it’s terrifying when you see someone’s very large dog has apparently escaped. Then you’re like, “Oh, no, that’s-”

Richard Reinsch: That’s just a bear.

James Patterson: “That’s a bear.” With the sheer volume of small children at this very Catholic university it’s funny, but then it gets kind of scary because you don’t want the kids to come running outside to pet the dog.

Richard Reinsch: Now, you do find time to write. You’ve written this book, Religion in the Public Square. That title, though, raises a lot of questions. What’s going on in this book?

James Patterson: Religion in the Public Square: Sheen, King, Falwell is about three cases in which we find political, sorry, public policy influenced by major religious leaders. The cases are listed in the subtitle. Soon to be Blessed Fulton J. Sheen, Doctor Martin Luther King, Jr., and Reverend Jerry Falwell. The public square, here, is understood in many cases as a media space, although all three figures obviously also engaged in real public square debates, such as Sheen giving public addresses, King marching through Birmingham, and Falwell giving public addresses in such places as Cambridge, Massachusetts. There’s a media story in that public square. The funny thing about those stories is that they’re all very different. Fulton Sheen was able to be ahead of the curve when it came to mass media.

Richard Reinsch: Maybe a lot of our listeners have heard the name Fulton Sheen. Maybe place him for us and give us some context. Maybe we can do that a little bit more in depth in the interview. Before we talk about these three figures, you have a wonderful chapter introducing the both prevalent and difficult and complicated presence of religion in American political life and in our public philosophy. You introduce us to Alexis de Tocqueville and the way he writes about religion. You quote his famous phrase, “The spirit of religion and the spirit of liberty.” Maybe talk about that.

James Patterson: Yeah, that’s true. I start there. So, Alexis de Tocqueville observes that in America, unlike in France, the spirit of religion and the spirit of liberty were friends and formed a common religious dogma that served as a political foundation for public discourse, which isn’t to say that American public discourse is always very pious or even necessarily very ethical. But at least it had a sense of limits that were placed on a common understanding of the human person, the nature and purpose of government and the obligations that individuals have to each other and their communities and to their broader political organizations.

The achievement of this alliance was as a result of the disestablishment of churches from the federal government and in some cases, most cases at the time but not all of them, from the state government. And what this enabled, was the congregations and clergy to be dedicated to their own spiritual welfare. The clergy were no longer dependent on the state for the collection of tithes to support parsonages.

The people were no longer scandalized by corrupt relationships between state and church after. And so, the state was then free to pursue whatever ends it was responsible for, whether at the national level that we study, through trade policy, or at the state level that the … managing contracts or setting regulations on businesses, building bridges and the like.

This kind of relationship was very profitable for the United States in terms of producing as much political liberty for a republican government as possible, as well as empowering the states of the various people to be relatively unmolested, and, the entire outcome was quite a contrast to the way things were going in France at the time.

Richard Reinsch: The disestablishment, being a part of American thinking, although certain states had established churches, I think the last one was 1833. Thinking about that, how does religion shape democracy in America, and how does democracy in America end up shaping religion in America?

James Patterson: So, religion becomes a kind of common language that people use in order to speak to each other about all things in their lives, especially with respect to politics. And, this need for a common dogma is one Tocqueville routinely observes. As an example from a book that I relied on by Alan Kahan, Tocqueville, Democracy and Religion, out from Oxford a couple of years ago, has this great example of dogma being something like the study in what colors of light mean when you enter an intersection, with individuals free to determine what the light colors mean on their own, then you have a lot of traffic accidents, because some people think red means go, some people will think yellow means go and some people think green means go.

And, what religion does, is it sets what those things really are in our public discourse, and it also orients individuals away from material life and teaching those dogmas. So, the Christian church dedicates individuals pursuing a kind of spiritual happiness. It places as secondary importance on material happiness, and Tocqueville is extremely concerned about this, because American democracy shows on the seams, on the limits, there are these examples of a hunger for material wellbeing.

And so, religion is very necessary to prevent people from succumbing to temptation pursuing unvarnished wealth. One final thing is that religion provides a kind of softening of the mores. It provides a discourse that is productive of better manners among individuals in their daily lives, instead of a kind of coarseness that emerges, and this is partly because religion brings people out of the home and civilizes them to engage in ordinary life, which is absolutely essential if you’re going to have a free people engaged in a self government.

So, there’s a lot that religion does for democracy. As for what democracy does to religion, the general idea is that it provides for the defense of the individual conscience. In this respect, there’s a fear that if the individual conscience is left on it’s own, then it may not be properly formed to pursue the spiritual goals of whichever church denomination you belong to. But in fact, what that means is that churches then have the liberty to go out and seek people and bring them into the faith. So, there’s actually a lot of good that democracy does merely by getting out of the way of the good ministration of a clergy.

Richard Reinsch: The spirit of religion and spirit of liberty, Tocqueville says, and you talk about this in your book, “Religion and liberty aren’t seen at loggerheads in the American tradition,” although we can talk about how that’s changed now. Maybe we’ll do that later in the interview.

But, the spirit of religion, and the spirit of liberty reinforce one another.

James Patterson: That’s right, provided that the institutions are kept in the balance that he finds them in, and it was a rather spectacular experience of no clergy in America appearing to want to belong to government. That’s the thing that really startles Tocqueville, especially when talking to the Catholic priests.

Richard Reinsch: So you write about the progression from Protestant hegemony to Judeo-Christian consensus, so the Protestant hegemony being America, part of the 19th century, going into the 20th century, we can talk about the things that challenge that, and you write about Archbishop Fulton Sheen who … the Protestant hegemony was not open to Jews and not open to Catholics.

Sheen opens that up, but then also the Judeo-Christian consensus, you argue, as it will receive another enlargement under Martin Luther King Jr. will then close. Curiously, you argue it’s either caused or correlated with Reverend Jerry Falwell, and so, maybe we can just move through that, but thinking about Archbishop Fulton Sheen, how does he challenge the Protestant hegemony and what does he bring?

James Patterson: So, just to set some terms, Protestant hegemony, these terms I get from Darryl Hart. It refers to the period in which the United States experienced a mass evangelization in the United States known as the Second Great Awakening during the 1830’s. In fact, part of what so impressed Tocqueville about American religiosity was that he was here when this was going on, and could very easily credit the fact that there was no established church as one of the key institutional factors that led to this evangelization.

And, hegemony really continued through the Civil War, into the beginning of the 20th century, and that hegemony expressed itself frequently when it came up against groups it didn’t like. So, one of the examples of this would be essentially the harrowing of the members of the Church of Jesus Christ of Latter Day Saints or what we call Mormons from northern New York all the way out to the canyon lands. We forget that we actually declared war on Mormons for a while, in 1858, I think it was. And so-

Richard Reinsch: An extermination order was issued against the Mormons, I think.

James Patterson: Yeah, I guess there was a lot going on in 1858, so there’s a lot of headlines that we have to … and, at the same time that’s going on, you have a lot of nativist opposition to the Catholics, especially Irish Catholics who were perceived as foreign agents who would undermine republican liberty rooted in the English Reformation, and that language was very common and frequently used for political purposes.

I told this nice story from Tocqueville earlier. I don’t mean to leave out these rather unpleasant historical moments, and so, Protestant hegemony is more or less in place until itself experiences a kind of internal rift that sends two sides of Protestantism in America in two different directions, begins with the advancement of historical criticism of the Bible that became known as modernist or liberal Protestantism, and then fundamentalist people who wanted to insist on traditional Protestant dogmas, differed over the direction that this theology was taking different Protestant in our nation.

You have that famous split that occurs over a period of 10 years between what I mention we call the fundamentalists and the mainline or liberal Protestants. And, once the fundamentalists go their separate ways, starting their own institutions, in some cases, denominations, that left mainline Protestants able to reach out to other organizations that maybe they shared cities with or they shared common interests with.

A lot of history is told in a book by Kevin Schultz call Tri-Faith America, which ends right around the same time that I’m picking up my cases. So, I just want to set that’s what Protestant hegemony means, and these folks, these mainline Protestants that reach out to Jews and Catholics during this period are doing so because of paramilitary violence by the Ku Klux Klan.

There is a real urgency to this in the 1920s, and the ironic outcome is no sooner do mainline Protestants began this kind of outreach to American Catholics and Jews, is that the leadership of the Judeo-Christian consensus is immediately under contest. So, one of the first people who really is able to marshal a kind of national audience that could describe themselves as Jews, Protestants and Catholics was not a mainline Protestant minister, but rather, Monseigneur Fulton J. Sheen in the 1930’s who would later be made a bishop in 1951.

What Sheen was able to accomplish was in two stages, that proves that American Catholics were patriots, that they loved their country, and to do that required both illustrating that the common enemy that Protestants identified that is the Catholic church, was actually a friend, and at the same time, that there was an actual common enemy to all people, and that enemy was Communism.

Sheen began this effort, under direct instruction from Pope Pius XI, and for those of you who don’t know Fulton Sheen was from outside Peoria Illinois, El Paso Illinois and from an Irish Catholic family. He was born in 1890, I forget the exact year, and was always a star student. He ended up just finishing his graduate work at the University of Louvain, where he received a degree of the highest honors. He was one of the most accomplished academic theologians ever in the history of the church up to that point.

When he took to the airwaves in 1930, he was bringing with him the kind of full force of this neo-Thomistic revival that Louvain had been leading, and was bringing it to of all places, the living rooms of the American people all with their radios on.

Richard Reinsch: So, what did Sheen want to bring to the public square?

James Patterson: So, it’s no coincidence that when he was going to the public, it was 1930, be the Catholic church in America was still smarting from the vociferous anti-Catholicism of the 1928 presidential debate, in which the first Catholic nominee, Al Smith, had run for president.

And so, Sheen saw that it was necessary for him to go on the air and explain Catholicism. He did so on the radio show called the Catholic hour. And, the argument that he made was that the common good in the United States was spiritual happiness. So, everybody is pursuing some kind of spiritual growth and a necessary condition for that pursuit is political liberty.

And for the establishment of political liberty, you had to revere the elements of the American regime that were most responsible for it. So, he was adamant in defending the United States Constitution and the Declaration of Independence as instruments of liberties for the pursuit of spiritual happiness. And, he calls it Americanism, which is a fraught term for American Catholicism, and it was strange is that he went for that term. He could’ve chosen a lot of different terms. I get into this in the chapter Americanism with selected Protestant hegemony called the true message of the American Constitution, which repudiated Catholicism, and it was also a term that has been more or less condemned by Pope Leo XIII in the practices of some churches in the United States.

Sheen goes right for this term. It was absolutely no punishment, instead, tremendous support from the Vatican in the process of using it, and the idea here is that when you look at the way that the church operates in America, it is constantly operating in a way that affirms the need for spiritual happiness and the liberty to pursue it.

There’s this not this conspiracy from Rome to undermine republican institutions, rather, there is an overwhelming support for those institutions. And, the real target for American opposition should be Communist countries that are responsible for the closure of all different kinds of religious institutions and the persecution of believers because Communism was, in his regard, what he called the mystical body of the anti-Christ that had its own Scriptures. It had its own saints, and he would make fun of the fact that Lenin had to be embalmed in order to look like he had immortality or eternal life.

So, these were all hideous simulacra is another term he uses. It revealed the true evil in the heart of Communism that all Jews, Protestants and Catholics could agree, was truly evil and needed to be opposed.

Richard Reinsch: Well, the Americanism he wants to correct is a Protestant use of that term against Catholics and against other dissenting groups as they see them. He wants to use Americanism because the Vatican has condemned it, without full information and he wants ultimately to vindicate maybe a deeper understanding of liberty, but run it through the American Constitution, through the foundations of constitutional order in this country and defend liberty in that manner.

James Patterson: Yeah, that’s exactly right. And, the consequence of this was overwhelmingly successful, not just owing to the message, but also the messenger. Fulton Sheen was a man of incredible oratorical gifts.

Richard Reinsch: He hosted a national television show in the early 1950s, you write about that in the book, that was widely lauded, which still is worth thinking about. I think the episodes are available on YouTube.

And, he does this Americanism on the show and frequently takes on a current issue, and found a way … you talk about also, he could bring a lot of people into the discussion that say, didn’t subscribe to his faith.

James Patterson: The show was called Life is Worth Living. It won an Emmy, I want to say in 1952, and he won an Emmy against Frank Sinatra and Milton Berle, which is pretty good. One of my favorite stories about this is that a friend of mine who’s Baptist, his father was a minister, a Baptist minister, talked about how his father would watch Life is Worth Living, despite the fact that there was this spate of priests on the television, not supposed to watch this as a Baptist. But, he would write down some of the best lines of the show and use them in his own sermon.

Yeah, he did have this ability to draw in audiences and that made him have a pretty strong platform to speak to public figures as well. He was showing up at the Eisenhower White House somewhat frequently, for example.

Richard Reinsch: We started off and you started off in your book talking about Tocqueville and the particular place, important place religion has in America and as a public philosophy. And then, we talked about the problems with that, the challenges, the violence, the refusals, at first to admit certain groups. How do you see Sheen and how do you see his Catholic intervention into Protestant hegemony. Is that working out Tocqueville, or does that challenge what Tocqueville says?

James Patterson: This is tough for Sheen. When he’s getting started in the ’30s, he’s actually getting it in the ear from Social Gospel Protestants, like G. Bromley Oxnam who was a Methodist bishop.

Richard Reinsch: Social Gospel Protestants being those who perhaps, say downplayed traditional Christian beliefs in favor of social democratic or progressive uplift and heavy focus on politics.

James Patterson: Precisely, sort of the development of American states where it’s a public welfare, in which the church would be an advocate about it, and the state would be the dispenser. And so, the reason why Sheen had to deal with this was also because of the prevailing anti-Catholicism among many of the American Protestants, despite the kind of efforts of some mainline Protestants to start a new consensus, a new Judeo-Christian consensus.

And, the way that he was able to affirm to the contrary, was constantly to talk about America in these terms that established constitutional democracy as a regime, that not only Catholics could tolerate what internalized as part of belonging to their country that they followed themselves. And so, these individual points, especially early in his career, were the kinds of examples where he had to make the rubber meet the road.

He has this great message. How is he going to prove that he actually means it. And, another way that he often did this, was in the form of conversion, so he was responsible for bringing Communists into the Roman Catholic church. There’s this pattern that emerges with Fulton Sheen, that as he brings Communists either … some of them were actually former Catholics, to bring them into the church or they would return to the church. And then, no sooner would they make this conversion and they would enter into the church, he would immediately send them to the FBI for debriefing or the CIA for debriefing where they would then be given some degree of federal protection.

So, you actually see in the process of Sheen’s conversions of these people, it moved them from this bad stuff that’s bad for America, it’s bad for people of conscience, and reconstituting them as good citizens.

Richard Reinsch: This part of the book is interesting for me, having written on Whittaker Chambers, because I was not aware of Sheen’s role in converting some of the people who had been in Chambers’ network. One of which was the blond spy queen, Elizabeth Bentley, and also Louis Budenz, who worked with Chambers, and Chambers refers to him several times in Witness. I wondered if Sheen or Chambers ever interacted. They had to have at some level, I would think, but-

James Patterson: They had to have.

Richard Reinsch: Maybe we will leap from Sheen in the 1950s, maybe there’s a bridge on Sheen and civil rights. You don’t write that much about Sheen and civil rights.

James Patterson: Sheen on civil rights, he was strongly in favor of civil rights, but by the time he was speaking on this, he was on television shows that were not getting renewed and he was more or less becoming a marginal figure in political life.

Richard Reinsch: As opposed to meeting with presidents in the White House.

James Patterson: Yeah, at that point, he was living in a one bedroom apartment in New York, because he was on the outs with Cardinal Spellman, but read the book if you want to know more about that. There’s Thomas Reed’s book on Sheen that’s really good on this too.

Richard Reinsch: Martin Luther King on the Judeo-Christian consensus. Tell us about King’s approach through his theological idea of the beloved community.

James Patterson: King’s fascinating on this, because no sooner do you start to see … the point at which Sheen is really at his pinnacle of influence over this Judeo-Christian consensus, is in the middle of the 1950s, and it’s no sooner is he at that pinnacle, then you start to see someone else who might also have a claim to preaching to this coalition of religious believers, the consensus of religious believers, and mobilizing them towards some other end.

James Patterson: And, King actually makes some references to Sheen early in his career. He actually criticizes one of his books, Peace of Soul as being insufficiently concerned with the ordinary lives of suffering in African Americans in the segregated south. So, there are these odd connections we find between the three cases. That’s one of them.

King actually used the term Hebraic Christians, the tradition or Hebraic Christian consensus or, it’s a bit different, but it means the same thing. And, his understanding was that these are all people of conscience who should not be adjusted, a term he likes to use. They should not be adjusted to segregation.

And, the reason that they are not is that they have domesticated churches, churches that have lost the prophetic voice, and if they were to regain that prophetic voice, the one that he’s trying to use to speak to the American people, what they would uncover is, that there is actually in the United States, this capacity for individuals to open themselves up to God’s love, and this is something he gets from people like Paul Tillich in reference to love as agape or sacrificial love, the love of Christ on the cross, and this sacrificial love in which a person sacrifices their own personal interests or wellbeing for the purpose of elevating the broader community, when done by everyone in that community, generates a tremendous amount of love for one another that will lead to changes in law.

And, this is one of the things about King’s foundational view of love, which is that the conversion comes first. You have to convert yourself to this change in the heart. Turn towards the cross and see that white supremacists need to surrender the unearned privilege they have in the segregation code, and in order for that to happen, African Americans and also whites, sympathetic white activists, have to demonstrate their willingness to love them, these segregationists, these white supremacists, by putting their bodies on the line to save their souls.

The hope was that this would draw in attention and propagate a movement in which this openness to the cross would lead to a purification of racial hatred in the form of internal conversion among the enemies of King, and would ultimately introduce them into that same beloved community that he wishes to realize. At the core of this … oh go ahead.

Richard Reinsch: Talk about King and what he thinks is the proper foundation of constitutionalism in America.

James Patterson: At the core of it, it’s the church. The church is supposed to bear witness and give this prophetic voice, but that tradition he has is one that he ties to the Jewish prophet, the famous line about let justice roll down like a mighty stream, comes from the book of Amos, and he would also speak to specific faith traditions when speaking to them. This is all forms of recognition.

He would quote Aquinas and then maybe he might quote John Bunyan. And so, you’ve got your Jewish, Catholic and Protestant position and then he would draw them together. Normally, those two figures he would single out are Thomas Jefferson, author of the Declaration of Independence, and co author Abraham Lincoln. Abraham Lincoln served as a kind of martyr to the political implementation of the Hebraic Christian tradition in the form of freeing the slaves.

But also, they’re very significant figures, especially later in King’s life, because they’re reluctant, and they’re imperfect. And so, they don’t have to become these pure defenders of the Hebraic Christian tradition, who have never thought a racist thought. What they just had to be is they had to be good enough as statesmen to know what the right choice is, and open themselves to constant improvement in the experience of God’s love in their lives.

So, he gets harder and harder on them over the course of his life as it gets harder and harder for him to push forth anymore racial justice. But, that’s still the connection that’s there. You have the person who gives the Declaration of Independence and the person who defends it while defending the Constitution. They’re seen as coextensive to Jewish, Catholic and Protestant religious faith in a way that’s absolutely vital to King, right up until his assassination.

Richard Reinsch: Maybe I’ve grown too familiar with his arguments there. You talk about this, that the non-violent resistance, if one were to be violent, and who does he rule out? He rules out anyone in the KKK, but he also rules out black nationalism, black militant groups as well, as a part of his group.

And, he wants non-violent resistance to be the only way to forge a new public bond. If it’s violent, there’s a practical problem, the sympathy from other white Americans, and from crucially white moderates won’t be there, but also, forgiveness itself is the only way to forge a new bond. That’s worth thinking about.

James Patterson: He’s inspired by Mahatma Gandhi in passive resistance in the removal of British imperialism from India. So, he has this funny line, he refers to, Jesus provides the message and Gandhi provided the method. And, the idea is that at this moment, the proper strategy for implementing the best of the Hebraic Christian tradition, is in the form of non-violent direct action in which the hope was that not only were the people who were persecuting the activists would take stock of themselves and what they were doing—they were firing high pressure hoses on small children and bombing churches—but also that everyone in the United States will bear witness to this fact and have to reckon with themselves where they stand on the matter.

I mentioned earlier there are these media stories, like Sheen is able to get his own radio station and his own television show. There’s a kind of funny reason for that, but he gets it. And, King does not have that option for a number of reasons. So, he has to bring the media to him, so there’s a secondary factor here where he’s trying to build the beloved community by demonstrating the willingness of activists to put their bodies on the line, but also to draw immediate attention to show exactly what’s going on because he has this concern that the black nationalists on the margins of the civil rights movement will grow strength increasingly, if his non-violent direct action does not succeed. And, he actually, the fear that he has becomes increasingly realized as black nationalism gets greater purchase towards the end of King’s life, and it’s very upsetting to him about that.

Richard Reinsch: The Letter from a Birmingham jail, What’s the essence there? He’s been put in jail for violating segregation laws …

James Patterson: So, there’s a lot of really great scholarship on the history behind this. One example that I really like is a book by S. Jonathan Bass called Blessed are the Peacemakers, And, there’s a funny moment in the book when Bull Connor decides to use violence against protestors where there’s actually a lot of excitement. They’ve been waiting for the violence, and they knew that if Bull Connor would give into the temptation to violence, that they would ultimately have on full display, at this critical moment … King hasn’t had a big win in desegregation in a while, and the memories of Montgomery are really fading in people’s minds.

And so, once Connor, for his own political reason, caves to this, there’s a kind of call from seven, I think it’s seven different clergymen, white clergy men in Birmingham. One’s a rabbi, there’s a Catholic priest, and Baptist, Methodist, Presbyterian and Episcopalian clergy, all write this letter asking for King to calm down. And, they make an amazing foil for King because here’s-

Richard Reinsch: And, also, that they also say, why is a pastor getting involved in politics?

James Patterson: That’s right. There’s this kind of … in the South especially, there’s this kind of don’t get involved in politics attitude in the church, because that inevitably means opening up this very question.

Richard Reinsch: Funny how that argument gets used in a lot of different contexts. We don’t really want to deal with you. You just shouldn’t be speaking. That’s interesting. Go ahead.

James Patterson: Yeah, you can imagine how they were in that Birmingham office, the SCL, these guys are doing exactly what we thought they would do. Everything is coming according to plan, so at this moment, this critical moment for King, he has got to get this right. He has got to get this letter right. And so, not only is he addressing the clergymen in the letter … something that gets overlooked is that he’s actually writing to them.

Of course, he doesn’t send them the letter by themselves, it gets into every newspaper they can possibly get to print it, but also he’s addressing the congregation. He’s addressing Americans as people of faith, and as well as clergymen to justify this stance on ignoring the plight of African Americans and the pictures that you see of the water hoses and dogs that emerge from this, really have a galvanizing effect on the broader country to respond.

As I mentioned in the book, and there’s a lot of really great work on this, but the one person that doesn’t move is John F. Kennedy, who’s obviously dealing with a lot of things in the White House, but after Birmingham, King becomes this force that cannot be ignored and really cannot be stopped. And, the Letter from a Birmingham Jail is crafted in jail and with people in his office taking drafts back and forth and at this critical moment in history, they got it exactly right, so it’s this deservedly lauded piece of English rhetoric that should be studied and read by everyone as far as I’m concerned.

Richard Reinsch: I agree. Okay, Jerry Falwell took the line, not necessarily a racist line, but the line that pastors like King should stay out of politics. That’s your next figure here. We asked this question about all three figures, why you chose them, but why specifically did you choose Jerry Falwell to be a part of this book?

James Patterson: That’s good. I wanted to take Sheen and I wasn’t sure actually … I ended up picking up Sheen because my mom encouraged me to do so. Originally, I had … and that’s because my mom was converted to Catholicism in part by Fulton Sheen by watching his show. So, thanks mom. But, he’s also under studied. Usually people … and I blame the prominence of Jesuit education in this country. I’m kidding. But, they tend to go for John Courtney Murray, but Sheen actually had much more of a presence in the Unites States than Murray did.

King, I think, is pretty obvious, but Falwell is a bit more contentious. In fact, Jon Shields, at Claremont McKenna, likes to, at least about 10 years ago, published a book downplaying Falwell, and the reason for downplaying Falwell was both because Falwell was at that stage 10 or 15 years ago, was at the end of his life, at the end of his political power, but also, American Protestants wanted to get past this … they wanted to get past the Moral Majority and renew a message. And, the reason that was given in scholarly terms was that Falwell seemed to have less of an influence in the Moral Majority than observers in the 1970s and ’80s thought he did.

And, my argument in the book is that if you go by social science methods, it’s sort of true that he didn’t have as much of an influence, but that’s partly because the social science at the time is trying to pull people back from thinking that Jerry Falwell is the real president behind Ronald Reagan, sort of a textual problem there, when we go back and look at this literature, but also because the most significant thing that Falwell did is he broke the taboo.

He was the one who decided that the separatism of independent and Southern Baptist churches was no longer doing good for the country. Baptists were part of that fundamentalist exile from politics, an exile that’s kind of been overstated.

Richard Reinsch: Conventionally seeing the start with the end of the Scopes trial, and a pull back from that point forward.

James Patterson: That’s right. And also the disaffection from the failure of Prohibition and so they have a skepticism about participation in government because what it seems to do is corrupt the church and they would rather the United States go into the inevitable decline that all states do when they cease to adhere to the Gospel, provided that they can save enough souls in the meantime.

And, Falwell’s big break on this is, we can’t save souls if America splits up. And so, he explains that it is necessary to preserve the regime if the church is going to save souls before the end times, or the Apocalypse in Revelations.

So, this is the last full measure of the church.

Richard Reinsch: You also said the Judeo-Christian consensus ends with Falwell. Talk about that.

James Patterson: Yeah. So, what happens during the period between King, when he’s assassinated in ’68 and the rise of Falwell is an interval of 10 years, and some folks will say, “Well, that was a big 10 years.” That was after ’68, you have the student revolt that gives rise to the new Left and the advancement of a secular politics, especially more aggressively socialist politics, which King was experimented with, especially towards the end of life.

And, the response that could have been made then would be for reckonings the churches would make with that. But instead, with Falwell, what you get is an effort to repurpose the Judeo-Christian consensus from a shared consensus under context from this secular world view, and instead, there’s this effort especially with people who supported this in the formation of the Moral Majority, to move that Judeo-Christian consensus into a constituency for the Republican party. And, that’s effectively what the Moral Majority was for.

When you look at Sheen, and when he meets the public figures, he’s meeting with Nixon and he’s meeting with Fiorello LaGuardia. He’s meeting with all different kinds of people. King was careful. He liked to meet with sympathetic Republicans and Democrats, although he would weigh in a little bit more, especially during the ’64 campaign between Johnson and Goldwater, but he was always open to anyone who was willing to sponsor civil rights legislation, because he needed all the help he could get.

And Falwell was a bit more regimented in what he was willing to accept. He defined himself as a conservative, associated himself with the new conservative movement, and was trying to bring as many people from within these churches as possible into the Republican party, as constituents who would be mobilized as a voter base, that would overwhelmingly turn out to vote and produce a Republican majority, rollback the 10 years that had elapsed between ’68 to ’78, ’78 being the year that Falwell really becomes part of politics.

Richard Reinsch: So we think about this Tocquevillean notion or norm that we started with, spirit of religion, spirit of liberty working together, strengthening one another, enlarging one another, and in the book, and maybe I read it wrong, is that it’s been challenged, the religion and liberty are in profound tension.

Falwell is seen, because of the way in which he focused in a very partisan way of putting religion both in the service of conservatism and in service to the Republican party, signals the end of that and then, I guess that opens the question though, where are we now with regard to religion in the public square?

James Patterson:Yeah, so, I don’t know how you could’ve read it wrong. There’s this line here, rather than find a new way to speak to all Americans, indirectly the clergy found themselves speaking to a shrinking number of stakeholders, campaign staffers and elected officials, interested less in the Gospel or Torah, and more towards the nation, voter registration and campaign volunteers. I don’t think you read that wrong.

Richard Reinsch: I remember that line clearly. Now, did you find it interesting in the 2016 campaign that Liberty University and Jerry Falwell Jr., seemed to be legitimating influences for Donald Trump within religious conservatism? The irony there was rich, I thought, right down to posing with Trump in front of a Playboy frame.

James Patterson: The Playboy magazine. So, I plant this flag a little bit at the end of the Falwell chapter. I didn’t want to be too Trump focused in the book, especially since much of this book was put together without ever thinking that he would go down that fateful staircase or escalator, I guess it was.

But, I do have this paragraph where I mention that the Nehemiad, which is a big part of Falwell’s message, I should mention this, the Nehemiad refers to taking the narrative of the pious Governor, that is Nehemiah in the Bible, and applying it to public figures. It’s actually a very old idea. It’s one that stems all the way back from the Puritan founding.

There’s the whole concept of the American Nehemiad. Originally that was John Winthrop. The title gets applied to George Washington. And, I actually learned about this by looking at Falwell’s sermons in which he talks endlessly about Nehemiad and normally when people talk about American Protestant narratives, they talk about the Jeremiad and Falwell uses it, but not really as a centerpiece.

When he’s talking instead about the rise of a pious Governor, and this is a pious president who will rebuild the walls, essentially bring back the ethical guards that America needs in order to preserve its fate against the end times. And, the person who returns to that image is Robert Jeffress, who is the pastor that gave the sermon right before Trump’s inauguration-

Richard Reinsch:Baptist pastor from Dallas, Texas. Who many listeners have probably seen on TV.

James Patterson: I actually, there’s only a little paragraph that raises this but I wanted to say more about it, but it didn’t fit in the book, so I put that in a piece to Law & Liberty, which they can actually … which you took, so you can see an extended discussion of that. The Nehemiad is very much part of this and Trump’s attachment to this whole Falwellian Nehemiad is part of this legacy of decreasing constituencies that are part of what we could call the Judeo-Christian consensus.

Richard Reinsch: Now, we know in this moment we’re in, we had the Obama administration. One thinks of the Hosanna Tabor case where the Obama administration seemed to argue against there even being a ministerial exception to civil rights law, thus the federal government would be able to pick your pastor, theoretically, if that argument had prevailed at the Supreme Court. It was slammed nine to nothing.

Also, the thing about the contraceptive mandate and … there’s a lot of flashpoints. And then also, we all get the picture now of a pretty strident opposition in this country, and it’s very partisan, on behalf of what religious liberty is and what’s going to be defined and when we hear … Hillary Clinton, Barack Obama, also will defend, they say, freedom of worship, which is very constrictive. That’s just what you do inside your church or your synagogue.

We still have this position out there that’s defended primarily by conservatives, by Republicans, conservative lawyers, and that’s where we are now with regards to religious liberty. One group that you’ve written about, and we’ve published a number of pieces on Law & Liberty, associated in certain ways with First Things, which itself is ironic. Certain writers there have repudiated or said the defense of religious liberty itself is no longer valid, even though it was prominently put forward by say, Father Richard Neuhaus, George Weigel, others in the pages of First Things. This no longer really works, we’re told. Our religious freedom doesn’t really exist. It can’t really be defended.

What could be done is something called integralism, we’re told. Adrian Vermuele, endowed chair at Harvard Law School prominently defended this, Gladden Pappen as well. Talk about that and how you see that playing out, making an impact.

James Patterson: Well, so, I’m very grateful you have not stated my Twitter handle at this point, because what integralism amounts to is, and I wrote about this in Law & Liberty, is that there’s a kind of despairing of the liberal democratic order. Deneen was the first step in this, Patrick Deneen spoke why liberalism fails, explaining how liberalism is fundamentally incompatible with Catholicism.

Richard Reinsch: Let me read, just for our listeners, I want to read this and get your comment. You say early in the book, and you’re referring to Patrick Deneen’s book Why Liberalism Failed. “Liberalism,” you say, “is not the cause of the problems Deneen observes, since ideas lack agency. Rather, one of the most important defenses against the accesses of American liberalism, religious institutions failed to remain independent of politics. In short, liberalism did not fail the church. The church failed liberalism.”

James Patterson: I guess if I were to pivot to talk about that quotation it would be that with the decline of the Judeo-Christian consensus from a generally shared set of values across a broad population, to a diminished constituency of the Republican party, what you saw with it was the compromise of the idea of the church as an authority that did not participate in politics, but instead, indirectly supported democratic regimes by instilling in people a sense of a shared dogma, the need for virtue, and ultimately to prioritize spiritual salvation over material goods.

And, that is what the role of religion was always supposed to be in a regime like the United States. So, what you end up with at the end of this neo-Christian consensus, are weak churches. You get weak churches, clergy who are unable to speak to a faithful that see clergy as either reactionaries or politically compromised or partisan.

You have sorting in churches. There are churches that will have different people with different kinds of beliefs and they won’t go to another church, or they won’t go to another denomination, and so the extension of politics into the church led to the rivalry in the United States, between the party of liberty the Democratic party, what critics will call the party of license, or the party of religion, which critics will call the party of reactionary medievalists.

And, integralists have adopted that kind of way of thinking, which is let’s be reactionaries. Let’s actually establish a church in the United States and impose its moral standards directly since churches themselves are too weak. And, that imposition will be productive of virtue. There’s this need to bring people into correction. And, in some way, integralists want to do away with the separation of church and state in the United States, because it was productive of this secularizing regime and instead, ease control of the administrative state for the purposes of the church and this is what Adrian Vermeule, you mentioned earlier, refers to as rally them all, or essentially this Catholic equivalent of the march across the institutions. And, that is definitely not a position that I ever expected to encounter in my adult life.

Richard Reinsch: It would seem in just thinking about this, you say the church failed liberalism and thinking about the rise of say, integralism. Liberalism itself never made churches in America reduce themselves, or create as many problems as they have created for themselves. In particular, thinking about the Catholic church, you and I are both Catholic, looking at the sex abuse crisis, which we don’t even realize the fallout from that yet. And here we are 2019, first big news of this was in 2002. So, I guess in a way, liberalism itself is not the problem.

James Patterson: The introduction of the book actually talks about the specific scholarly problems with this discussion of liberalism, and Sam Goldman wrote a review of Why Liberalism Failed, it is just perfect in isolating how liberalism serves as a kind of agent. And, that’s what I mean in that quotation about ideas do not do things. People do. There are historical contingencies. This is an argument that I actually drew from Goldman’s review, and so the idea that ideas are agents of political change on their own, this disembodied Geist, or what Goldman calls the Geist from treating this as a theory, is that liberalism becomes a demiurge. It’s this evil spirit and in order to deal with it, we have to summon the good spirit of integralism.

So, they have this weird existential fight that leads to people saying, sometimes ironically, that in the future integralist state, this problem or that problem will not exist, because somehow it’ll be destroyed by some sort of spiritual entity that will defeat liberalism, the cause for all of our problems. And, that speaks to the problem of a weak church, where people do not think the church speaks to them or deals with our moral problems in a prophetic way. It also speaks to a kind of isolation that they cannot account for why things are the way they are in their lives and so they look to these kinds of gnostic battles between lightness and darkness. And, that kind of isolation is something that would surface in the United States in the absence of strong churches bringing people together in communities.

Richard Reinsch: And, families and communities, yeah exactly.

James Patterson: Exactly.

Richard Reinsch: Yeah, my approach is not an integralist approach, it’s to say, “Well, how do we find ways to rearticulate why we have a limited government in the first place,” and why did we want robust communities in the first place, and it wasn’t just choice for the sake of choice. You’re going to define yourself however you want, but to draw on something Sheen said, and we talked about it in this interview, the attempt to know the truth about yourself, and it seems to me those things have to be rearticulated.

James Patterson, thank you so much for joining us and discussing your new book, Religion in the Public Square.

Dissecting the Trump-Russia Investigations: A Conversation with Andrew McCarthy Mar 10, 2020

We welcome National Review contributing editor, and former Assistant US Attorney Andrew McCarthy to Liberty Law Talk for a discussion of his recent book, Ball of Collusion.

Richard Reinsch: Today we are talking with Andrew McCarthy about his latest book, Ball of Collusion. Andrew McCarthy is a contributing editor to National Review. He is the author of the New York Times bestsellers, Willful Blindness and the Grand Jihad. Before his writing and commentating, he was a lawyer. He was an assistant United States attorney in the southern district of New York where he led the successful prosecution of the 1993 World Trade Center bombers and also participated in the prosecution of bombings of American embassies in Kenya and Tanzania. Andrew McCarthy, glad to have you on the program.

Andrew McCarthy: Richard. I’m a real admirer of your work, so it’s a delight to be here.

Richard Reinsch: Well, thank you so much. Now thinking about the title of your book and as we were discussing offline, I thought I understood the Mueller Investigation and yet I read your book, it’s incredibly complicated. There are a lot of players, a lot of facts, details, motives to keep in play here. So I’ll start with a basic question. What was or is the Ball of Collusion?

Andrew McCarthy: Well, I think what the ball of collusion is, it is sort of a combination of a political narrative as it is melded with the tools of, or the arsenal of an investigation. So collusion came to the public essentially as a political narrative, which was designed to lead people to believe that there was a conspiracy, a very particular conspiracy, a cyber-espionage conspiracy between the Russian regime and the Trump campaign. And specifically, this was the operation that has been attributed to Russia by our intelligence community, which was designed to influence the outcome of the 2016 campaign. And according to at least the consensus of the intelligence community influenced it with the specific purpose of advancing Donald Trump’s candidacy and undermining Hillary Clinton. So that was presented to the public as a political narrative in the aftermath of the 2016 election. And to some extent before the 2016 election, but I think it was really promoted with a lot more urgency afterwards and then-

I was going to say the other aspect of it is that it actually is a formal counter intelligence investigation where the background or the backbone to it, which I think was a protectual counterintelligence investigation, and I say protectual in the sense that it was really a criminal investigation, but they didn’t have a predicate crime. So the use of the counterintelligence powers of the government was the enabler which allowed the FBI and the Justice Department to look for a crime even though they didn’t have one.

Richard Reinsch: Now, to put a fine point on it, you say at one point in the book, the Trump-Russia investigation was built on a fraud. What do you mean there?

Andrew McCarthy: There was no evidence that there was … certainly no credible evidence that there was a counterespionage conspiracy between the Trump campaign and Russia. There’s not even really to be blunt about it any evidence that the Trump campaign had the competence, and the wherewithal to be a participant in a cyber-espionage conspiracy. Nor was there ever any credible indication that Russia, which is quite expert at cyber-espionage ever wanted or needed the help of any American partners, not just the Trump campaign, but any campaign. The only thread on which that was built was a claim by a former British intelligence official named Christopher Steele, that there was this enterprise between the Trump campaign and Russia. And that was based on his claim by his own description of it was based on sources of his, some of whom were anonymous, all of whom were two or three or four steps removed from him in a hearsay sense.

Andrew McCarthy: And when he got sued for libel in Britain, he himself said that this was raw intelligence that hadn’t been verified or corroborated and needed to be investigated. Yet this was the “evidence” that the FBI and Justice Department went to the foreign intelligence surveillance court on the basis of, so that’s why I say that the essential claim of a conspiracy between the two was fraudulent. That is not to say that there would no connections between the two sides. In fact, I spend a good deal of time in the book elaborating on those. But what we care about in law enforcement is not association or collusion, which is a weasel word. Collusion is just a concerted activity. You and I are colluding by having this conversation. What law enforcement and intelligence people are supposed to care about is conspiracy. And there wasn’t any evidence of that.

Richard Reinsch: When did intelligence officials, law enforcement officials in the executive branch begin to investigate the Trump campaign? And, I guess we’re talking about, what was their concern to begin such a review or investigation?

Andrew McCarthy: This is a really important question because it goes to I think the principle public confusion about the investigation, which I’m actually feeding into in a sense by calling it the investigation because I don’t think it ever really was the investigation as if it were a single set-piece in the way that we deal with the investigations, for example, when I was in the Justice Department where you have some criminal events or some threat to national security that you know of on the basis of some information that comes to the government’s attention, and as a result, you open a formal investigation. That eventually happened here, but I think it’s a late breaking development in the factual continuum that we have. The investigation I believe really began in the latter half of 2015 and was based on a combination of-

Richard Reinsch: You said 2015.

Andrew McCarthy: 2015, yes. In other words, after … I should put a marker on it. After Donald Trump announced his candidacy for president, which if I’m remembering right, was around mid June of 2015.

Richard Reinsch: So you’re saying right away? Right away they were concerned with Trump?

Andrew McCarthy: And when I say that I’m going on a variety of things that have been publicly reported, not the testimony that was given in congressional proceedings by John Brennan, who was the CIA director in the latter half of the Obama Administration, who says that he was getting, that is the agency was getting, streams of intelligence from foreign partners raising concerns about Donald Trump. And that those went back into 2015, and they became something that the CIA became very concerned about in the early quarter of 2016. But as I lay out in the book, I believe that particularly our European allies began raising concerns about Trump pretty early on after he announced his candidacy and there were allegations. This is one of the fascinating thread of the investigation that will be very difficult to get to the bottom of because as much as we want accountability for what happened here, these partnerships that we have with foreign intelligence services are based on mutual commitments that we’re going to keep the information confidential.

So they have to walk the line, which was a difficult one to walk between keeping our government accountable and at the same time respecting the arrangements that we make in these intelligence partnerships that we have with foreign countries that actually are quite important to national security. So whether we’ll ever get all of the answers here, I’m skeptical about. What we do know, at least on the basis of what’s been revealed thus far, that reporting came into the CIA from various European countries. And I think my memory is that Brennan or other intelligence officials acknowledged that some of it came from the Baltics, from France, from Italy I believe from Germany as well. And we can see in the factual recitation, and the investigative activities that have been confirmed, that there was a lot of activity involving Great Britain. We have our closest intelligence alliance with Great Britain and our agencies do not operate in Britain unless the Brits have been given a heads up about that.

And often we coordinate with them when we do act in their territory as they do when they act here. So, know that there was a lot of-

Richard Reinsch: What do you think they were saying?

Andrew McCarthy: I think Trump especially in some of the more explosive and controversial statements that he made early on in his campaign, and these really continued right through the election. But he was, to put it mildly, I think on the basis of his rhetoric, a skeptic about the utility of NATO and about the post World War Two world order that basically we, and our allies in western Europe have presided over and fortified for the last three quarters of the century. Trump certainly was skeptical about whether we were getting, we the United States, we’re getting the value of our investments in NATO. He suggested that our allies are all free riders. They don’t pay their fair share. We get entangled in too many foreign escapades at the expense of being able to attend to things in our own country and so on.

If you couple that with the other part of Trump’s rhetoric that was notable, which was the very friendly rhetoric towards Russia and toward Vladimir Putin personally. I think this was jarring to a lot of our allies and was particularly jarring to our allies in the Baltic who are justifiably, I think fearful watching what Putin and his regime have done in Ukraine, watching what they’ve done in Georgia that there’s obviously a revanchist impulse in that regime. I don’t know that the Putin really believes he could reestablish the Soviet Union, but he certainly does want to grab back as much as he can about his near horizon.

I think it be the allies obviously found all of this very alarming. Some of it was alarming because the idea that they would have to pay their fair share and pay what they’ve actually promised to pay into the NATO would put great strain on their budgets, they could give him what their and arrangements had been all these years. But I also think that there was genuine fear that Trump could number one, go soft on Russia, which would only encourage its aggression. And number two, create vacuums in the world if the America retrenched where bad actors have a tendency to just fill in when we scaled.

Richard Reinsch: So you would say, I don’t know, this period, latter half to 2015, early 2016, our intelligence officials are watching Trump. They’re concerned about what’s going on, on the basis of these reports. Hearing from other foreign intelligence agencies. At what point though, to things pick up, I mean, you mentioned sort of the formal investigation, which is July, 2016, but I also gather from your book, they were taking a deeper look even before then.

Andrew McCarthy: I think so. I think in terms of just aside from the geopolitical concerns, which I think are profound, there’s also specific information that comes into the CIA about the possibility that Russian money is actually going into the Trump campaign. And we suspect that that report comes from Estonia, but that has never been formally confirmed. There’s a lot of reporting about it, but whether it was actually Estonia or some other service, I hope we’ll find out someday, but we haven’t. So they were clearly looking at something that was more concrete than just geopolitics and around the same period of time, and now we’re talking about the transition from 2015 into 2016. You have this situation where Paul Manafort and Carter Page come into the Trump campaign, and they are figures who are of interest to our government because of their interaction with … Well, the way the government would say it would be, with people and elements who are connected to Russia and the Russian regime, as I argue in the book.

I think with respect to Manafort in particular, it’s much more about Ukraine than Russia. And part of the narrative is … part of the political narrative as to exploit the fact that most Americans I think don’t appreciate the differences between the politics of Ukraine and the politics of Russia. We were very susceptible, I think, to the idea that because Manafort had these connections to Ukrainian oligarchs who were connected to a party that is generally pro-Russian that they were almost effectively KGB agents. And there’s a big difference between being a Ukrainian oligarch and a Russian operative.

Richard Reinsch: No, I was going to say, so Manafort had … he had made millions of dollars as you document in the book representing or consulting Ukrainian politicians in particular heads of state in the Ukraine … It’s interesting too, you said he had actually counseled one of them to be much more in favor of the European Union for the future Ukrainian disposition as opposed to being within the Russian orbit. And yet, as you’re noting precisely because it’s Ukraine somehow that makes him open to being or being seen as a Russian agent. I guess when I read that, one of the things that you hear from people sort of in defense of investigating Trump or in defense of the Mueller Investigation was, it would have been hard for Obama intelligence officials to not be concerned on the basis of who Trump was aligning himself with. It just seemed odd.

Andrew McCarthy: I think that there’s a fair point in that, and it’s an argument that is frequently made. I guess my pushback at that is, and I have said this for a number of years of writing about this. If you legitimately thought that a political campaign or particularly a political candidate for the presidency actually was or there was strong evidence that he might be an agent of a foreign power, that would be something that the incumbent government would not only … it would not only be permissible to investigate that, I think they’d be obliged to investigate it. So what we’re always talking about here is what’s the factual predicate and are we going beyond … do we have something other than mere speculation? And if there’s some hard evidence of traitorous behavior or at least loyalties to another government that could undermine our government.

And I think you have to do more along those lines than speculate. I think there has to be some hard evidence because we have … to look at it from the other side, these counterintelligence powers that the government is given are awesome powers that are intended. The purpose of them is to protect the United States from foreign threats to national security. And we have a presumption against there being used in connection with American politics, domestic politics and there’s a long history that attaches to this, a little modern history that goes back to the 60s and 70s. The whole idea, the whole reason that we have FISA which I think as I explained, the book is a very imperfect solution to the problem that it was designed for. But part of the reason, I think a big part of the reason that we have it is because of the not only the potential, but the episodes of abuse of these intelligence powers.

The overarching message with all of this is that, if you’re going to use counter-intelligence authorities in order to investigate people connected to a political campaign, that you better have very strong evidence that there is justification for it. And just to finish the point to go to what you originally were asking me about, I don’t have a quarrel ever with the idea that the government has, enough facts from the government’s way, that they have a reasonable basis to be concerned and even to dig some more and look some more. Where I think you have to start to draw the line is, if they’re going to use tactics like going to the foreign intelligence surveillance court or using informants and operatives to infiltrate political campaigns, then I think you have to have a much stronger basis than just mere speculation that something may be a myth.

Richard Reinsch: So let’s talk about it, because this sort of leads into my next question, when the, I don’t know, formal or opening of a counter intelligence investigation, the Trump campaign in July of 2016, so we’re told when that happens, what’s the rule inside the Justice Department? Or is there a law or a regulation for, “Okay, we’re now investigating a presidential campaign of a rival party”? So automatically there are problems here. So how do we prevent abuse? How do you prevent abuse of investigating on a whim or for partisan purposes? And did the Justice Department in your opinion meet that standard?

Andrew McCarthy: No, I don’t think they did. Their own regulations talk about investigations being factually predicated and they talk all the time about predicated investigations. But I think the closer that you look at the regulations, the more you realize that they’re written to give the government maximum flexibility so that they can justify virtually anything. And that what we’re really reliant on is having responsible people in positions of authority, particularly supervisory positions who are mindful of, not only the investigative imperatives, but also the other interests that have to be respected and guarded, particularly keeping political campaigns insulated from the use of intelligence techniques or law enforcement tactics. You’re really more reliant I think on people than on regulations because they write the regulations in a way that really is designed so that if there’s a problem that they can usually justify themselves.

And I think if there’s one major failing that happened here, and this goes to actually what got me particularly interested in all of this. I mean, I’m very interested in the history of elections and the 2016 election in particular because I followed it so closely, but I was more interested in this episode from the standpoint of somebody who worked on national security investigations in the Justice Department, and as someone who was simply just interested in the history of the 2016 election. And what I was very concerned about and I continue to be concerned about is the abuse of our counterintelligence authority, and fact that I told people when we first started to learn about some of the things that had happened here, that they were crazy and that these things couldn’t possibly have happened, particularly the idea of going to the foreign intelligence surveillance court with a screen of opposition research that hadn’t been verified or corroborated.

When friends of mine first raised the possibility that the FBI had done that. I said, “You guys are crazy,” and insisted that when the dust settled, what we were going to find was that the FBI will have done what the FBI always does, which is, they may have taken this opposition research that was sponsored by the Clinton campaign. A lot of people say that they shouldn’t be able to do that. I tried to push back on that by explaining, in my years as a prosecutor, I took information from the worst people that you can imagine. I took it from terrorists, the mafia, hitmen and fraudsters and you name it, we took information. But the point is you can take information from anyone-

Richard Reinsch: But you got to verify it.

Andrew McCarthy: What you do when you get the information right? And the more suspect the sources, the higher your obligation is to corroborate it and make sure that you’re confident about it before you do something like bring it to a court. So what I said was, what you’ll find is that the FBI will have taken those four or five or six facts that they need and make out probable cause. And when we’re talking about foreign counter intelligence, we’re not talking about probable cause of a crime, we’re talking about probable cause if someone is acting as a clandestine agent of a foreign power and what I said is they’ll vet these facts. They’ll go out and get independent evidence for it. They’ll talk to other witnesses, they’ll gather records, they’ll do with the bureau does. And by the time they went to the FISA court, this will no longer be Christopher Steele dossier. This will now be an FBI investigation. You’ll never even have to hear Christopher Steele’s name. And what ended up happening was what I said could never happen is precisely what happened. So one of the things that’s really-

Richard Reinsch: So does that mean, lawyers for the government, and correct me, they’re trying to get surveillance on Carter Page, who works in the Trump campaign, has longstanding ties to Russia, tried to open an investment firm to invest in Russian energy. And the book documents how he had been questioned about various Russian issues by federal prosecutors in the past. So he’s of interest to them. But are you saying this memo is basically presented to the FISA court as is, with very little-

Andrew McCarthy: Correct.

Richard Reinsch: And they don’t disclose either from your book, if I remember, they don’t disclose that this is Clinton. The Clinton campaign had paid for this. That was left off I think.

Andrew McCarthy: I’d be interested in your reaction to this, but my reaction to this is just as a simple matter of common sense. If you look at what we’ve gotten … what’s been redacted from the submissions that they made to the FISA court, the first submission, if I’m remembering correctly, the footnote about Christopher Steele and his potential bias and the aspect that he was working for Fusion GPS and how he came to the investigation and why they bring the information. The footnote goes on for about a page and a half. And just the footnote. And I always thought, just having been in front of a million federal judges over the years, if you’re taking a page and a half to avoid uttering the sentence, they are working for the Clinton campaign, you probably need to disclose the sentence that they are working with the Clinton campaign.

I think what happened here is that they almost convict themselves of being disingenuous by the energy that goes into withholding information. It’s really quite astonishing when you look at what they filed. But they did essentially do the thing that I said would never be done, which is they took Steele’s information and they just basically cut and pasted it into FISA submissions or applications which are supposed to be called verified applications to the foreign intelligence surveillance court. And when director Comey, then director Comey, was asked by a Senate committee that he was briefing about why they would do that when Steele actually is not the source of any of the facts that the court was being asked to rely on for purposes of probable cause. He’s actually more like a case agent. He’s the accumulator of information from a bunch of sources who were three or four steps removed from him. And just so our listeners understand, Steele has not been in Russia for about 20 years. His cover was blown as an intelligence officer in the late 1990s.

Richard Reinsch: For the British.

Andrew McCarthy: As I understand it. Right, yes. And he did run the Russia desk for MI6 for about four years in the early 2000s, but he ran it from London. He hasn’t actually been in Russia. And everything he knows that comes from Russia, it comes from sources that he has that are quite many steps removed from him and a number of whom evidently don’t know that they’re sources. They’re talking to other people who are talking to other people who are talking to Steele. That’s how attenuated it is.

Richard Reinsch: Which raises the obvious question of was he being played?

Andrew McCarthy: Yes. Well that is a big question. And judging from what we’ve heard a little bit cryptically in the testimony that Attorney General Barr has given in the few occasions that he’s been before congressional committees, it seems to me that that is one of the major things that the investigation that he has basically commissioned in the Justice Department. That’s one of the main things that investigation is looking into, whether Steele was a vessel for this information coming into our government. I think there’s a very good possibility that, that’s true.

Richard Reinsch: I didn’t realize, and you raised it in the book, and I’ll butcher the Russian agent’s name, there was a Russian agent that defected to the British and Steele was actually his handler inside, or for British intelligence.

Andrew McCarthy: He lived in England.

Richard Reinsch: And he was murdered on British soil. So like Steele is … it’s like this guy is definitely compromised. And I guess maybe we’ll find out, was that taken into account at all by Americans dealing with the information they received from him.

Andrew McCarthy: Well, there’s an interesting … I rely on some really good reporting that was done by Eric Felten, and I think it’s the time he was at the The Weekly Standard. But he points out that for years during the Obama Administration, Steele was providing information to the State Department through this guy, Weiner, who is an old sort of right hand to John Kerry, I think he was a former Clinton administration official, if I’m remembering. And he comes back to the government with Carrie, when Carrie becomes Secretary of State, and it’s through him that Steele starts to bring some of his reporting into the State Department. And the old Russia hands at the State Department say that they took Steele’s information with a grain of salt because they knew that a lot of his clients were Russians and that they felt that they were getting, as Eric put it, I think the Putinesque spin on things and that doesn’t necessarily mean that Steele was intentionally trying to give them the Putinesque spin. He may have just been being fun. I guess we’ll find out.

Richard Reinsch: The question here too, I mean, just thinking about the sort of … Our own narrative sort of comes together and sort of hard to believe facts, our people in Washington in these positions you think would be much more skeptical than they were. Also, we’ve got our 28 year old master of foreign policy theorist, George Papadopoulos who ends up going to jail for false statements he gave to prosecutors, but he was really the linchpin for opening this formal investigation on the basis of conversations he had with an Australian diplomat where purportedly he says, “We’ve got emails from Clinton or we’re being told that the Russians are going to release emails and we know about it.” And of course the record is a lot more complicated, this guy was sort of relied upon as a direct connection to the Trump campaign and it’s supposed collusion with Russia. That in of itself is bizarre to me. And you write about that at length in your book.

Andrew McCarthy: Well, just to deal first with the opening of the investigation, I think that was a formal paper reality on something that was ongoing for a long time before they actually formally went to paper and opened it. And the George Papadopoulos episode maybe the immediate cause, but it’s not the overall, cause. There’s a lot of reasons why they opened the investigation. And in terms of the political narrative, Papadopoulos became the subject of a lot of emphasis, largely because the Carter Page thread, which initially was in the media’s mind, the big home run of Collusion when the Steele dossier couldn’t be verified and became increasingly discredited, that story became discredited. And as I say in the book, Papadopoulos becomes collusion 2.0 at that point, because the Page thing has collapsed.

The Papadopoulos story is just really remarkable. He is a 28 year old kid, who was so green that when the Trump campaign, for whatever reason, signed him on as a foreign policy advisor, and this is during a time when precisely because I think of the pro-Russia and NATO skeptical rhetoric, that sort of stuff that was coming out of Trump’s mouth and out of Trump’s campaign, the GOP, the Republican foreign policy really thumbs its nose at Trump, and nobody wants to be involved in that campaign. So they’re scrambling around for advisors because the media is asking, who’s going to advise you? And they bring in these obscure people like Carter Page and George Papadopoulos. Papadopoulos at that point was still putting on his resume that he had participated in the Model UN, which I had to do some research on, it was a middle school project.

But, he hadn’t really much experience, but because he was publicly held out as an adviser, he gets approached by this character called Joseph Mifsud, who I think is probably the most interesting figure in what’s a very interesting narrative. And he’s identified, I think in the last two or three months, former director Comey wrote a op-ed in the Washington Post that flatly said that Mifsud was a Russian agent. And as I show in the book there’s no evidence that he’s a Russian agent and there’s certainly scant evidence that he’s a Russian agent.

Richard Reinsch: What do you think he was?

Andrew McCarthy: I think he’s probably a British agent. I don’t know that he was an operative, but I think that if he was an operative, there’s a lot better chance that he was a British operative than Russia or any other. But I think it’s somebody who had-

Richard Reinsch: Deliberately sent to spy on Papadopoulos?

Andrew McCarthy: Well, this is what we don’t know. I mean, the frightening possibility here is that the Brits or that a British American intelligence operation targeted Mifsud at Papadopoulos loaded him up with information, which Papadopoulos then unburdened himself to the Australian ambassador Downer, who also has extensive ties to British intelligence. And then he takes the information and goes to the Obama State Department in the embassy in London. They feed him the information and then they take the information as the pretext for formerly starting the investigation. Now, I should underscore here, we don’t know that that happened. To my mind, as I say in the book, that’s the worst case scenario. But here’s what we do know, which is to my mind, disturbing enough. Mifsud has these Russian contacts.

He knows people in the Russian government, but he’s basically an academic. There isn’t good evidence that he has intelligence ties to Russia. And that he’s got any reason to know what goes on in Russian intelligence. That he would have had any reason whatsoever to have known about Russia’s cyber-espionage operation. He has this conversation in London on April 26, 2016 with Papadopoulos in which he allegedly tells Papadopoulos that the Russians have thousands of emails of Hillary Clinton. There’s a couple of interesting things about this. First of all, our only evidence that Mifsud said that is Papadopoulos, who is not reliable. I mean the factual record is that he’s not reliable and he’s pled guilty. What he pled guilty to was misleading the FBI agents in the investigation. He is the only person who says that Mifsud mentioned thousands of emails from Hillary Clinton.

I think that’s important to emphasize because it’s something that has not been covered at all that I can detect in the media, and is barely mentioned sort of in passing in Mueller’s report, which is that the FBI actually interviewed Mifsud a week after they interviewed Papadopoulos and Mifsud denied flatly that he said anything to Papadopoulos about emails. He says that he doesn’t know what Papadopoulos was thinking he’s thinking of but he clearly got that wrong. Now, he could be lying, possible. But the interesting thing about it, and this goes to my wondering about his connection to British intelligence. If there’s one thing that we learned during Bob Mueller’s investigation is that he knows how to bring a false statement case against people who lie to the FBI. Mifsud has never been charged. He made these statements to the FBI, and there was never any charge brought against him. Mueller never alleged that what he told the FBI about his conversation with Papadopoulos was untrue and he says it didn’t happen. That’s one thing.

Second thing, let’s assume it did happen. The emails of Hillary Clinton that were publicly, notoriously being spoken about at that time were Mrs. Clinton’s emails from her own private server that Donald Trump was talking about all the time, the 33,000 emails that she had destroyed and didn’t turn into the government, that there was a lot of speculation had been hacked by foreign intelligence services and the like. If they were talking about Clinton emails, those are the emails that Papadopoulos said that he understood were being discussed. And the reason this is interesting is a few weeks after, I think it’s about two weeks after the Papadopoulos conversation with Mifsud, this is when Papadopoulos has this meeting with the Australian Ambassador Downer in the club in London where they’re having a couple of drinks and they’re having this conversation and we don’t know exactly what Papadopoulos said to Downer, to the ambassador.

But we do know that Papadopoulos says that he didn’t mention emails and Downer does not say that he said emails. There was some indication from Papadopoulos according to Downer that the Russians had some information that could be damaging to Hillary Clinton that Papadopoulos thought for some reason they were going to release. And from that, now remind you, this conversation happened I believe in early May and Downer at the time thinks so little of it, he reports it to … his State Department reports it to the intelligence services and that’s the end of it. Flash forward about two and a half months. And then, Wikileaks puts out the tens of thousands of DNC emails that have been hacked by the Russians. At least that’s the allegation, whether that could be proved is another question.

But let’s assume that if the Russians did it, Wikileaks puts this out, Downer sees that these emails have been leaked at the time of the Democratic convention and suddenly says, “Oh, that must have been what Papadopoulos was talking about.” So he tootles down to the American Embassy in London and tells them that he thinks that this conversation that he had with Papadopoulos must have been about these DNC emails that got released. But there’s a lot of reasons to doubt that Papadopoulos was told anything about the emails even by Mifsud. If they did discuss emails, they clearly were not talking about the DNC emails and Papadopoulos himself never mentioned emails to Downer that is completely a deduction, that Downer draws from the fact that there’s a report of these hacked emails in the international press. So the whole thing is built on a deduction by this Australian ambassador, that seems to be a pretty steep departure from what Papadopoulos was actually talking about, if what he was talking about was honest. That’s the basis for your investigation.

Richard Reinsch: I mean, it’s amazing, so many personalities, so many facts, so many stories to pursue. You wrote a lot about, I remember reading this, if we move forward to the calling of Mueller to be the special prosecutor by Rod Rosenstein, who is deputy attorney general because Sessions had recused himself on the basis of advice from lawyers in the Justice Department, from handling any aspect of this Russian situation. Rosenstein appoints Mueller to be the special prosecutor. And you wrote that, Mueller himself or that Rosenstein himself had violated Department of Justice regulations in appointing a special prosecutor.

He gave Mueller the authority to investigate any links and or coordination between the Russian government and individuals associated with the campaign of President Donald Trump and any matters that arose or may arise directly the investigation. He tried to cure it by writing a separate memorandum justifying what he did, but that was redacted. And just thinking about all the conversation we’ve had today, the facts, the deductions and logic, things like that. Why do you think, Rosenstein didn’t want to disclose why he called on Mueller to be the special prosecutor, the factual basis he relied upon?

Andrew McCarthy: Because I think they relied on the Steele dossier, and the Steele dossier was already thought to be dodgy by that point. It was around that timeframe and thereafter that it was discredited. But we have good reason to think that when … what ends up happening, just to be clear on what the timeline is, in a remarkable bit of testimony in March of 2017 when he was still FBI director James Comey confirms the existence of the counterintelligence investigation and unbelievably identifies the Trump campaign as a subject of the investigation and suggests that at the end there’s going to be an assessment about whether any crimes have been committed. This violates virtually every rule in the book from the Justice Department, the FBI about proper commentary about people who haven’t been charged in about anything about other investigations and so on.

But Rosenstein when he appoints Mueller basically adopts Comey’s testimony just described before the House Intelligence Committee. And it does violate the special counsel guidelines because, you’re not supposed to have a special counsel unless you establish both that the justice department has a conflict that’s so profound at can’t investigate in the normal course, and there’s a factual predicate for a criminal investigation, and it’s the crime that is the source of the Justice Department conflict. He didn’t lay out a, a predicate for crime or describe a conflict that the Justice Department supposedly had. What he gave to Mueller was the counterintelligence investigation that Comey had described. And then there was no basis in the special counsel regulations to assign a prosecutor or special counsel, a counterintelligence investigation. In fact, counter intelligence in the government doesn’t get a prosecutor because it’s not prosecutor work. It’s not designed to build criminal cases.

So I think Rosenstein recognized that he had a problem, and it could become a bigger problem if Mueller were to proceed to bring any cases at that time, it looked like they were moving forward on Paul Manafort. There could be legal attacks made on the propriety of Mueller’s appointment. So I think in order to try to fix that problem Rosenstein issues this memorandum in the beginning of August of 2017 where he elaborates on the basis for Mueller’s authority to conduct the investigation. And as you say, most of that has been redacted, but we did get to see some of it. And the reason we got to see some of it is they had to disclose some of it in connection with Manafort’s prosecution. And what was disclosed about Manafort was that Mueller was given the authority to prosecute him in connection with his Ukrainian activities. And it also said in connection with the allegation that Manafort colluded in connection with the Trump campaign with the Russians. The only source that we know of for that allegation is the Steele dossier.

So I think we can reasonably infer that the parts of the memo, the three or four fifths of the memo that we haven’t gotten to see yet because it’s so heavily redacted rely just as the Manafort part of it did on the Steele dossier as the basis for Mueller’s authority to conduct the investigation. In other words, that’s the factual basis to believe the crimes may have been committed, namely the Trump campaign, complicity in Russia’s cyber-espionage that only comes from Steele. And I suspect that it’s the reason the Justice Department hasn’t wanted to disclose that is it would have cast a lot of doubt, at least politically, if not legally on the propriety of Mueller’s investigation if heavy reliance was placed on the Steele’s dossier for justifying it. My attitude about this has always been if they would take what I regard to be the much more important substantive, dramatic step of relying on the Steele dossier under oath in connection with FISA applications, that is applications to the foreign intelligence surveillance court.

To me, that’s a much bigger deal than the basis for an investigation. So there’s no reason in my mind to think that if they relied on the Steele’s dossier in connection with the FISA court, why on earth they wouldn’t rely on it to justify their investigation. I don’t see any reason why they wouldn’t, although I completely get why they don’t want to tell us.

Richard Reinsch: Do we learn anything from the Mueller report, from the Mueller Investigation about any of this collusion? Is there anything revealed? I mean, when people write about it, it turned into an obstruction investigation largely. And that’s sort of what we discussed after the Mueller report was released to the public. You wrote also about certain Russian companies Mueller indicted in which he made it publicly known that these Russian companies were indicted. One of them, Concord Management, wanted to defend itself in public, and wanted to defend itself in court, I should say. And dared Mueller to prosecute them, to actually bring charges against them in court. Did anything ever happen with that?

Andrew McCarthy: They’re in court now. And what’s going on is the Russian defendants are demanding the discovery, and the Mueller Investigation is trying to not give it to them or trying not to give it to them in a way that they can’t disclose it to their principals who are in Russia of course. Just to give a quick background on this, Mueller thought that these indictments were freebie, they were more in the nature of press releases than indictments because everybody knew that Putin is not going to allow any Russians to be extradited to the United States for trial on any of this stuff. So knowing that there was never going to be any trial, they could be very extravagant in their allegations because they’ve never gone to be tested in court. But I think the mistake that he made was to invite three Russian companies, which are really shell companies.

In addition to indicting Russian individuals, because unlike an American company, that’s actually a going concern, the Justice Department doesn’t really have a hammer that it can threaten a Russian shell company with, it can’t put it out of business, the kinds of things I can do to an American company. So what ended up happening was, as you point out, one of these Russian companies, Concord showed up in court and said, “We’re here, we’re ready to be tried. We need the discovery. Let’s have it.” And the prosecutors responded with the, I think the formal legal term is hummina hummina hummina because they clearly were not looking to try this case. And so what they have basically been doing for the month since that’ll happened is first trying to say that there was a question whether the Russian business had even appeared in court, even though they were sitting at the other table next to the prosecutors because they hadn’t been formally served.

The Justice Department said that they had let the Russians know that they had filed these indictments, but they had never heard back from the Kremlin. Defense lawyers are there at the other tables like, “Well, we’re here.” That wasn’t going to work. And then they started to complain about the discovery. But I think the most interesting thing that’s arisen out of that, which hasn’t gotten enough attention either, is that this company objected. This is in connection with what’s the so called, which is the propaganda operation, the social media accounts that put out all these messages. And what they demanded, what Concord demanded is, “What is your evidence government that the Russian regime, the government, the Kremlin directed this operation because you keep saying it in press statements and you imply it in your indictment, what’s the evidence of it?” And the Justice Department tried to stiff on, and for a long time. The court finally said, “If you have evidence, you have to tell them what it is.” And they had to come back and say, “Well, gee, we don’t really have any evidence of that.”

Richard Reinsch: Sort of a lack of seriousness almost within the Mueller team.

Andrew McCarthy: Yeah, but this is a big deal. I mean, if they’re making a concession that the Russian government wasn’t actually involved in the social media plot, which is one of the two bases, one of the two bedrocks for the cyber-espionage campaign, the hacking being the other one. What I’ve said all along was I accept the intelligence community’s assessment that Russia’s probably responsible for this, but I don’t think they could ever have hoped to prove it in court beyond a reasonable doubt, and here we have the first time that anyone’s gotten a chance to call them on it, the government had to come back and say, “Well, gee, it turns out we don’t have evidence to tie this to the Russian regime.”

Richard Reinsch: That’s incredible. Looking at all of this, t was made, not that it was started by it, but it was made worse by, I think, features of the administrative state. Something like, the FISA court, which sort of tries to add a legal patina to executive intelligence gathering, which is something that can never really be justified legally. It’s a decision made by political actors who are accountable constitutionally, both to Congress and other people for their decisions. But the FISA court sort of gives them cover, legal justification for collecting intelligence. And FISA usually approves applications for surveillance 90% of the time. And so you have the Steele Dossier helping to justify surveillance of the Trump administration and indeed spying on the Trump campaign.

Also, Special Counsel Mueller, and just the way in which the executive branch investigating itself with a prosecutor who has only light accountability, has a large budget, lot of lawyers that can be turned loose on someone they’re investigating, versus I think the constitutional way, which is congressional investigations being used to investigate and collect information. So Congress has to actually bear the burden, the public burden of investigating a president perhaps for impeachment. It seems to me all of this, what we experienced, I mean, obviously we’re in a period of hyper partisanship, but that’s actually a norm in American history. But it seems to me it’s the way in which we want to sort of squeeze politics into a legal box now that makes us worse.

I think that’s an apt description. And I’ve been a FISA critic going back to when I was a prosecutor, when I happened to be in terrorism cases, which were among the few examples that you get FISA evidence actually being used in court. But I think FISA was a bad idea, driven by good intentions. It’s a reaction to the Watergate and the spying scandals of the 60s and 70s. But it’s a bad idea. I often talk about a decision, Justice Jackson wrote in the early 50s about the propriety of courts getting involved in executive branch intelligence collection. And Jackson makes two points, one of which FISA tries to answer years later. And the other, which I think FISA can’t answer. The first is that there’s nothing about being a lawyer or a judge that makes one expert in intelligence matters. It’s simply beyond the judicial function. It’s not a judicial function, it’s an executive function.

And it’s a classically political function not in the pejorative sense of politics, in the distribution of power sense. So it’s not appropriate for judges who don’t have the institutional competence to involved in this. FISA tries to answer that by opening in one tribunal all of the different surveillance issues that would come up in intelligence collection with the idea being that the judges will develop expertise from handling all these cases. You can argue about how successful that experiment has been. But I think the other critique of Jackson is one that, FISA has no answer to and it can’t be answered. And that is that the most important decisions a body politic makes are the decisions about its security and those decisions ought to be made by the political representatives who are accountable to people whose lives are at stake and that you don’t want to divert them to the unaccountable branch.

I believed he was right then. I believe that’s right now. And what you get with FISA is the judges know that they’re doing really an executive function and they’re tepid about performing it. Do you want to be the judge who … If the people who are responsible for protecting the lives of our citizens come into court and they say that we think al-Qaeda is experimenting with a weapon of mass destruction, that they’re going to explode in a civilian center. Do you want to be the judge to tell them they can’t have their warrant? Of course not. So the pressure is on them to approve. And it gives them a judicial Patina or the sort of gravitas of the court is stamped on the executive activity. We see it in this very investigation where when you call them on what they’ve done with the Steele dossier, which anybody who has had any experience in the Justice Department who looks at these facts and looks at them objectively, says, “What on earth did they think they were doing here?”

What their comeback is, is always that four different judges signed off on me. Four Republican judges signed off on this, and I think it’s a fair question to ask. I hope somebody asks this in Congress who’s in a position to do oversight and do something about it. What was the core thinking when they review these warrants? I’ve read a million warrants, I’ve written a million warrants, and when you look at these, I think you have to ask, what were the judges thinking when they signed off on that? In defense of the judges who looked at this, there was a lot of information these warrants hadn’t seen yet. I don’t think there’s a whole lot in the probable cause section, but we need more disclosure before we can make a final assessment on how they perform.

But I think it’s worth asking, if the FBI came in and said, “We’re not giving you a reason why you should believe the sources of information, who made the observations, the sights, and sounds, and the rest that we’re asking you to rely on for purposes of probable cause. And instead we’re telling you that the person who accumulated this information is credible.” Which is generally beside the point when you’re going to get a warrant. I think it’s worth asking. What made the judges think that was okay?

Richard Reinsch: So I guess the next shoe to drop on this is the internal DOJ report.

Andrew McCarthy: Michael Horowitz is the inspector general. Now, Attorney General Barr initially said his report, I think in fact in April or March, Barr said we might get his report by May. We still haven’t gotten it. My understanding, at least what they say in Washington is that more people came forward and there’s been more testimony for Horowitz to consider. But at least some credible sources say his work is substantially done and they were in the final strokes of writing that report, and we may see it within the next three weeks or so.

Richard Reinsch: Well, Andy McCarthy, we’ll be looking to you for coverage and analysis. We’ve been talking with the author of Ball of Collusion.

An Invitation to the Land of Hope: A Conversation with Bill McClay Jan 12, 2020

The award-winning American historian Bill McClay returns to Liberty Law Talk to discuss his latest book, Land of Hope: An Invitation to the Great American Story.

The Logos of Western Civilization: A Conversation with Sam Gregg Mar 10, 2020

Sam Gregg returns to Liberty Law Talk to discuss his new book, Reason, Faith, and the Struggle for Western Civilization.

The Politics of Judicial Review: A Conversation with Keith Whittington Mar 10, 2020

One of our best scholars on constitutional interpretation and judicial power, Keith Whittington returns to Liberty Law Talk to discuss his book Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present.

Liberalism as Armed Doctrine: A Conversation with Philip Hamburger Mar 10, 2020

Editor’s Note: This podcast was originally published on August 15, 2018.

Every book that Columbia law professor Philip Hamburger writes changes discourse on a subject. The author of Separation of Church and State, Law and Judicial Duty, and the award-winning and Supreme Court cited Is Administrative Law Unlawful? now turns his inquisitive mind to the liberal mind. He joins us to discuss his latest book Liberal Suppression.

Borne Back to the American Founding: A Conversation with George Will Mar 10, 2020

Pulitzer Prize winning columnist and political commentator extraordinaire George Will comes to Liberty Law Talk to discuss his new book The Conservative Sensibility.

Dismantling the Leftist Academic Complex: A Conversation with Roger Scruton Mar 10, 2020

Editor’s note: This podcast was originally published on January 27, 2016. A new episode of Liberty Law Talk will return on June 15th with George Will on his recently released book The Conservative Sensibility.

Roger Scruton is certainly no stranger to Liberty Law Talk. His return is occasioned by Bloomsbury’s republication of his 1985 title, Fools, Frauds, and Firebrands, a book that caused tremendous academic controversy, threats against the publisher, and the book’s eventual scuttling by Longman, its original publisher. Scruton’s crime was to have attempted to take the New Left seriously, finding it severely wanting, if not absurd. We revisit the book’s fallout, discuss its ideas, and consider the state of contemporary Leftist thinking.

Politics as War: A Conversation with David Davenport Jan 12, 2020

David Davenport, coauthor with Gordon Lloyd of How Public Policy Became War, discusses how we lost “the cool, deliberate sense of the community” in making public policy and instead turned to the metaphor of war as the basis for political action.

Why Higher Education Is a Cartel: A Conversation with Todd Zywicki Jan 12, 2020

Todd Zywicki joins this episode to discuss a new book he has co-edited with Neal McCluskey titled Unprofitable Schooling that focuses on the economics and regulatory framework that protects higher education from competition and accountability.

Fear God. Honor the Emperor. A Conversation with Robert Louis Wilken Jan 12, 2020

The esteemed historian Robert Louis Wilken joins Liberty Law Talk to discuss his latest book Liberty in the Things of God: The Christian Origins of Religious Freedom.

The Economic Nationalism Agenda: A Conversation with Daniel McCarthy Jan 12, 2020

Daniel McCarthy joins Liberty Law Talk to discuss the merits of his recent essay “A New Conservative Agenda,” which has generated a number of responses, including Richard Reinsch’s “State-Based Conservatism: A Response to Daniel McCarthy’s New Conservative Agenda“.

Decentralization and the Common Good: A Conversation with Andy Smarick Jan 12, 2020

Andy Smarick joins us to discuss how Friedrich Hayek’s scholarship on the evolved nature of liberty and the principle of subsidiarity can undergird political decentralization and produce human flourishing.

Lord Liverpool & the British Tradition of Strategic Independence: A Conversation with William Anthony Hay Mar 10, 2020

Frequent contributor to Law & Liberty William Anthony Hay joins our podcast to discuss his new biography, Lord Liverpool.

Born-Again Paganism: A Conversation with Steven Smith Mar 10, 2020

Steven Smith returns to Liberty Law Talk to discuss his latest book Pagans & Christians in the City.

"Slouching Towards Mar-a-Lago:" A Conversation with Andrew Bacevich Mar 18, 2020

In a 2017 essay reprinted in his new book Twilight of the American Century, Andrew Bacevich comments

Like it or not, the president of the United States embodies America itself. The individual inhabiting the White House has become the preeminent symbol of who we are and what we represent as a nation and a people. In a fundamental sense, he is us.

He discusses this observation and more in this new episode of Liberty Law Talk.

Beautiful Losers in American Politics: A Conversation with Nicole Mellow Jan 12, 2020

Nicole Mellow discusses her new coauthored book with Jeffrey Tulis, Legacies of Losing in American Politics.

American Heresies and the Betrayal of the National Interest: A Conversation with Walter McDougall Aug 20, 2021

Editor’s note: This was originally posted on December 17, 2016.

What is American civil religion? And has it been distorted to the extent that it has undermined our nation’s foreign policy? The eminent historian and scholar Walter McDougall, author of the new book, The Tragedy of U.S. Foreign Policy, joins this edition of Liberty Law Talk to discuss these questions.

The Sacred Rites of Humanity: A Conversation with Daniel Mahoney Jan 12, 2020

Daniel Mahoney returns to Liberty Law Talk to discuss his newest book, The Idol of Our Age.

The John Marshall Legacy: A Conversation with Richard Brookhiser Jan 12, 2020

Richard Brookhiser joins this edition of LibertyLawTalk to discuss his new biography of John Marshall.

Andrew Jackson in Context: A Conversation with Bradley Birzer Jan 12, 2020

Bradley Birzer returns to LibertyLawTalk to discuss his new biography of Andrew Jackson.

Hamilton, Madison, and American Oligarchy: A Conversation with Jay Cost Jan 12, 2020

Jay Cost discusses with us his latest book The Price of Greatness: Alexander Hamilton, James Madison, and the Creation of American Oligarchy.

Knowledge, Risk, and the Surprised Banker: A Conversation with Alex Pollock Jan 12, 2020

Longtime Law and Liberty contributor Alex Pollock joins this edition of LibertyLawTalk to discuss his new book Finance and Philosophy.

Getting Right with Nationalism: A Conversation with Yoram Hazony Jan 12, 2020

Yoram Hazony, author of The Virtue of Nationalism, joins us to discuss why the nation-state is the best hope for liberty, peace, and prosperity.

The Peronist Pope Francis: A Conversation with Daniel Mahoney Jan 12, 2020

Editor’s note: This interview was originally posted on July 19, 2017.

Pope Francis’s political, social, and economic thinking has created great consternation, but he has also roused tremendous interest of Catholics and those outside the Catholic Church in his pontificate. Daniel Mahoney has written widely about Pope Francis and joins this edition of Liberty Law Talk to discuss what he thinks are the keys to understanding the current head of the Roman Catholic Church.

How Prosperity Is Improving the World of Work: A Conversation with John Tamny Jan 12, 2020

John Tamny returns to Liberty Law Talk to discuss his new book The End of Work, and why economic growth and prosperity are making it possible for people to do the work they love.

Is Relativism the Best Constitutional Defense of Free Speech? A Conversation with Hadley Arkes Jan 12, 2020

The great constitutional and natural law scholar Hadley Arkes joins this edition of LibertyLawTalk to discuss the triumph of free speech on the Supreme Court and whether its premise anchored in moral relativism can actually hold?

Galileo's Trial: A Conversation with Dom Paschal Scotti Jan 12, 2020

If you think the trial of Galileo was the black-and-white oppression of modern science by an intolerant church, then I have a podcast discussion for you. Dom Paschal Scotti comes to Liberty Law Talk to discuss his book Galileo Revisited.

The Administrative State under Trump: A Conversation with Adam White Jan 12, 2020

Adam White, Senior Fellow of the Hoover Institution, and Director of the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School, joins Liberty Law Talk to discuss the Trump Administration’s efforts to roll back the regulatory state.

The Rivalry and Friendship of Jefferson and Adams: A Conversation with Gordon Wood Jan 12, 2020

Gordon Wood, the great historian of 18th century American political thought, returns to Liberty Law Talk to discuss his latest book Friends Divided.

"God Bless America" and Other Songs I Learned from Immigrants: A Conversation with Wilfred McClay Jan 12, 2020

Noted historian and author Wilfred McClay comes to Liberty Law Talk to discuss the complexity of ideals, tradition, and memories that constitute American patriotism.

Freedom and American Higher Education: A Conversation with Keith Whittington Jan 12, 2020

Renowned constitutional scholar Keith Whittington visits Liberty Law Talk to discuss his new book Speak Freely on why we must defend free speech in American higher education.

The Solid Ground of Mere Civility: A Conversation with Teresa Bejan Jan 12, 2020

Teresa Bejan joins this edition of Liberty Law Talk to discuss her book Mere Civility and why Roger Williams is an exemplar of how to disagree well.

Leading a Worthy Life in a Scattered Time: A Conversation with Leon Kass Jan 12, 2020

We are delighted to welcome the great teacher and scholar Leon Kass to Liberty Law Talk to discuss his book Leading a Worthy Life.

Eric Voegelin Studies: A Conversation with Charles Embry Jan 12, 2020

Eric Voegelin sought to reawaken Western consciousness to the experiences of social, political, and religious order that are the very substance of civilization. Charles Embry, editor of a new Voegelin anthology, joins Liberty Law Talk to discuss his incredible scholarly quest.

Republican Virtue, Interrupted: A Conversation with Frank Buckley Jan 12, 2020

Frank Buckley, legal academic and public commentator, returns to Liberty Law Talk to discuss his latest book The Republic of Virtue.

Did Liberalism Fail? A Conversation with Patrick Deneen Jan 12, 2020

The prophet of post-liberalism, Patrick Deneen, returns to LibertyLawTalk to discuss his latest book, Why Liberalism Failed.

Presidential Rhetoric and the Challenge to American Constitutionalism: A Conversation with Jeffrey Tulis Jan 12, 2020

Jeffrey Tulis joins LibertyLawTalk to discuss his 1987 masterwork The Rhetorical Presidency, recently reissued by Princeton University Press on its 30th year of publication.

Debating the Thorniest Issues: A Conversation with Peter Schuck Jan 12, 2020

Peter Schuck returns to LibertyLawTalk to discuss his book One Nation Undecided: Clear Thinking about Five Hard Issues That Divide Us.

Walker Percy in the Ruins: A Conversation with Brian Smith Sep 16, 2020

The new Managing Editor of Law and Liberty, Brian Smith, joins us to discuss his recently published book, Walker Percy and the Politics of the Wayfarer.

Luther's Rebellion: A Conversation with Brad Gregory Jan 12, 2020

Brad Gregory, author of the award-winning historical works Salvation at Stake and the Unintended Reformation, joins us to discuss his latest book, Rebel in the Ranks.

The Great Libertarian versus Conservative Debate: A Conversation with Nathan Schlueter and Nikolai Wenzel Jan 12, 2020

Joining Liberty Law Talk are Nathan Schlueter and Nikolai Wenzel to discuss their long-standing and highly-informed debate between conservatism and libertarianism, which was recently published under the title Selfish Libertarians and Socialist Conservatives.

Music, Memory, and the Sound of Sacrifice: A Conversation with Mark Helprin Jan 12, 2020

Acclaimed novelist and foreign policy thinker Mark Helprin returns to Liberty Law Talk to discuss his most recent novel, Paris in the Present Tense.

Can Congress Govern? A Conversation with David Mayhew Jan 12, 2020

Distinguished congressional scholar David Mayhew discusses his latest book, The Imprint of Congress, on how Congress has balanced the presidency and legitimated our federal government for a divided public.

What's the Alt-Right? A Conversation with George Hawley Jan 12, 2020

George Hawley joins our discussion to talk about his new book, Making Sense of the Alt-Right. We talk about the Alt-Right’s power—real and imagined—its political goals, and the composition of this largely online movement.

The Challenges to Constitutional Government: A Conversation with Michael Greve Jan 12, 2020

Federalism and administrative state maestro Michael Greve, a regular contributor to Law and Liberty, returns to discuss with us the crises American constitutional government is facing today.

The Constitution and Prosecutor Mueller: A Conversation with Mike Rappaport Jan 12, 2020

Mike Rappaport joins us to discuss Special Counsel Robert Mueller’s investigation of the Trump administration and what the Constitution has to say about it.

After ISIS: A Conversation with Robert Reilly Jan 12, 2020

Robert Reilly, author of the Closing of the Muslim Mind and a veteran information specialist in the Iraq War, talks about the future of Islamic terrorism in the wake of ISIS’s territorial demise.

Introducing Originalism: A Conversation with Ilan Wurman Jan 12, 2020

Ilan Wurman joins this edition of Liberty Law Talk to discuss his new book, A Debt against the Living: An Introduction to Originalism.

The Personal Is Always Political: A Conversation with David Walsh Jan 12, 2020

Who is the human person and has modern philosophy given us a truncated understanding of the person? Those are some of the questions put to philosopher David Walsh as we discuss his latest book, Politics of the Person as the Politics of Being, in this edition of Liberty Law Talk.

Rights, Duties, and the American Republic: A Conversation with Thomas West Jan 12, 2020

Thomas West, author of the new book, The Political Theory of the American Founding, joins us to talk natural rights and how they shaped our Constitution.

How the Great War Changed America: A Conversation with Richard Gamble Jan 12, 2020

This year marks the one hundredth anniversary of America’s entry into World War I: “the war to end all wars.” Richard Gamble, author of The War for Righteousness, joins this edition of Liberty Law Talk to discuss how American intervention into the Great War irrevocably changed the country.

Is Globalization in Retreat? A Conversation with Samuel Gregg Jan 12, 2020

Samuel Gregg, Director of Research at the Acton Institute, returns to Liberty Law Talk to discuss the prospects for globalization in the wake of populist uprisings in many western democracies.

Brexit Prospects: A Conversation with Theodore Dalrymple Jan 12, 2020

Law and Liberty regular and essayist extraordinaire Theodore Dalrymple visits Liberty Law Talk to discuss Brexit, the EU, and rising nationalist currents in the West.

Understanding Relational Persons: A Conversation with Roger Scruton Jan 12, 2020

Returning to Liberty Law Talk is Roger Scruton to discuss his latest book, On Human Nature.

The Radical Jefferson: A Conversation with Kevin Gutzman Jan 12, 2020

In this edition of Liberty Law Talk historian Kevin Gutzman discusses his latest book, Thomas Jefferson—Revolutionary. We focus on Jefferson’s account of federalism, conscience rights, education, and race.

Is the Roberts Court Really Supreme Court Inc? Jan 12, 2020

This discussion with Jonathan Adler assesses the Roberts Court on “business” law cases. Is it true, as we’ve been told by Jeffrey Rosen, among others, that this Court is uniquely favorable to corporations, big business, and profits and dismissive of plaintiffs and the All-American little guy? Adler is the editor of the impressive new volume Business and the Roberts Court, which provides answers to this question in essays ranging from Environmental, Securities, and Antitrust cases to Citizens United. And it’s our good fortune to hear him discuss the Roberts Court and its record on business and the law.

James Burnham and Our 'Soul-Sick' Elite: A Conversation with Julius Krein Jan 12, 2020

Comes now to Liberty Law Talk, Julius Krein, founding editor of the explosive new journal, American Affairs. We discuss the crack-up in our politics and in the conservative movement through the lens of James Burnham’s classic work, The Managerial Revolution.

When Moderation Is a Virtue: A Conversation with Aurelian Craiutu Jan 12, 2020

Barry Goldwater famously told the Republican National Convention in 1964 that “extremism in the pursuit of liberty is no vice and … moderation in the pursuit of justice is no virtue.” Begging to differ is Aurelian Craiutu who joins this episode to discuss his new book, Faces of Moderation, a profound study of thinkers such as Raymond Aron, Michael Oakeshott, Isaiah Berlin, and others, who defended freedom and constitutional government against ideologues of all types.

America, What's Left of It: A Conversation with Patrick Deneen Jan 12, 2020

Patrick Deneen joins this edition of Liberty Law Talk to discuss his latest book, Conserving America? Essays on Present Discontents.

Patriot Fight Club: A Conversation with Steven Hayward Jan 12, 2020

How did key participants in Straussian fight club, especially Harry Jaffa and Walter Berns, challenge the progressive settlement of political science, the history of the American Founding, and constitutionalism? Our guide for understanding this debate will be Steven Hayward who joins this edition of Liberty Law Talk to discuss his latest book, Patriotism Is Not Enough: Harry Jaffa, Walter Berns, and the Arguments that Redefined American Conservatism.

Higher Education and the American Soul: A Conversation with Peter Lawler Jan 12, 2020

This edition of Liberty Law Talk is a conversation with Peter Lawler about his new position as editor of Modern Age and his just released book, American Heresies and Higher Education.

The Unjustly Neglected Roger Sherman: A Conversation with Mark David Hall Jan 12, 2020

This edition of Liberty Law Talk is a discussion with Mark David Hall about American framer Roger Sherman who was the only framer to sign the Articles of Association, the Declaration of Independence, the Articles of Confederation, and the Constitution. At the Constitutional Convention, he spoke more than all but three delegates and helped forge the Connecticut Compromise. Yet his writings remain relatively obscure. To help rectify this is Liberty Fund’s new volume entitled Collected Works of Roger Sherman, edited by Hall.

The Crisis of American Conservatism: A Conversation with George Nash Jan 12, 2020

The great historian of American conservatism, George Nash, returns to Liberty Law Talk to discuss the current state of conservatism after the improbable victory of Donald Trump.

After Obamacare: A Conversation with Josh Blackman Jan 12, 2020

This edition of Liberty Law Talk discusses with Josh Blackman his latest book, Unraveled: Obamacare, Religious Liberty, and Executive Power. Professor Blackman has been engaged with Obamacare since its creation and discusses the ways the law has impacted our thinking about healthcare, the regulatory state, and religious liberty.

Making and Unmaking the Bourgeois: A Conversation with Steven Smith Jan 12, 2020

This discussion with Steven Smith, author of Modernity and Its Discontents, explores what it means to be modern and why an age that has produced so many gains and advances has also produced so many counter-enlightenments and apocalyptic responses. To love the modern age well, do we need to love it moderately?

Is the Chinese Government in Late-Stage Regime Decay? A Conversation with Minxin Pei Jan 12, 2020

This new edition of Liberty Law Talk discusses with professor and author Minxin Pei how the nexus of corruption between businesses and officials within the Chinese Communist Party is negatively shaping the country’s current trajectory in economics and foreign policy. Much conventional thinking holds that China’s economic rise will continue unabated, but Pei’s account breaks with current wisdom by focusing on a decadent ruling class mismanaging China towards disaster.

Rebuilding the Liberty Narrative: A Conversation with Gordon Lloyd Jan 12, 2020

There is nothing more arduous than the apprenticeship of liberty, Tocqueville informs. While equality in modern democratic society is a natural tendency—one that grows without much effort—it is liberty that requires a new defense in each generation. In this spirit the next edition of Liberty Law Talk discusses with Gordon Lloyd the Liberty Narrative and its unending contest with the Equality Narrative.

The Decline of Constitutional Morality: A Conversation with Bruce Frohnen Jan 12, 2020

Is America in a constitutional crisis or is the country already post-constitutional and merely adjusting to a regime of quasi-law? Bruce Frohnen joins this edition of Liberty Law Talk to discuss this question and his latest book, coauthored with the late George Carey, Constitutional Morality and the Rise of Quasi-Law.

Liberal Democracy's Challenge to Freedom: A Conversation with Ryszard Legutko Jan 12, 2020

The great Polish political theorist, anti-communist thinker and member of Solidarity, Minister of Education, Secretary of State in the Chancellery of the late President Lech Kaczynski, and Deputy Speaker of the Senate, and current member of the European Parliament, Ryszard Legutko, joins this edition of Liberty Law Talk to discuss his latest book, The Demon in Democracy.

Freedom and the Natural Law: A Conversation with John Lawrence Hill Jan 12, 2020

Is the natural law necessary for any enduring consideration of freedom and responsibility? Answering in the affirmative is John Lawrence Hill who joins us in this edition of Liberty Law Talk to discuss his latest book, After the Natural Law.

Reviving Pluralism: A Conversation with John Inazu Jan 12, 2020

John Inazu has emerged as one of the leading scholars on freedom of association and religious freedom. His earlier book, Liberty’s Refuge: The Forgotten Freedom of Assembly revived our understanding of the significance of freedom of association in American constitutional history. He joins us in this episode of Liberty Law Talk to discuss his latest book, Confident Pluralism on why we must rebuild both the legal and civic engagement aspects of a pluralist society.

America and the Word: A Conversation with Mark Noll Jan 12, 2020

As the author of numerous influential histories of religion in America, Mark Noll is considered to be the master historian of this subject. In this edition of Liberty Law Talk, Mark Noll joins us to discuss his latest book, In the Beginning Was the Word. Noll describeshow the Bible shaped the foundation of public life in early America. He traces this influence directly in the Puritan biblical commonwealths in New England, to the narrow and intense Protestantism unleashed by the First Great Awakening, and the ways both Loyalists and independence-minded colonists used scripture during the Revolutionary War.

Regulatory Dark Matter: A Conversation with Wayne Crews Jan 12, 2020

This interview with Wayne Crews explores the growing lawlessness in the administrative state’s exercise of its powers. This regulatory “dark matter” ignores the formal rule-making requirements of the Administrative Procedure Act that mandates publishing a notice of proposed rule-making and allowing public comment. Crews outlines how the agencies of the regulatory state are resorting to the exceptions of using “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” to exert authority informally and without accountability.

The San Francisco Compromise: A Conversation with Michael Anton Jan 12, 2020

This conversation with Michael Anton explores how the gargantuan wealth of Silicon Valley allied with San Francisco Progressivism and is now redefining American culture and politics. But how durable is the alliance?

A Decentralizing Remedy for the Diseases of a Fractured Republic: A Conversation with Yuval Levin Jan 12, 2020

This edition of Liberty Law Talk welcomes back Yuval Levin to discuss his latest book, The Fractured Republic. Levin notes that our decentralizing republic, as observed in the decades long trends in social, economic, religious, and cultural diffusion, provides both opportunities and difficulties. America’s ongoing deconsolidation from a nearly unprecedented period of national cohesion after World War II has led to numerous benefits for individual freedom and economic prosperity. However, if we are more free than ever, we may also be more alone than ever and bereft of the contexts for a responsible freedom and citizenship.

And this has sparked a politics of nostalgia on both the Right and the Left with each group desiring to remake what has been lost from mid-century America. Or, as one boor continually observes, “Make American Great Again.” To these challenges, Levin addresses a series of local and personalist ideas and remedies that rely on our decentralized condition in an attempt to develop a future consensus for policies rooted in who we have become rather than a politics of nostalgia.

The Secret Lives of Right-Wing Professors: A Conversation with Joshua Dunn Jan 12, 2020

This next edition of Liberty Law Talk is a conversation with Joshua Dunn on a new book that he has co-authored with Jon Shields entitled Passing on the Right. Dunn and Shields interviewed 153 professors across a range of disciplines who consider themselves conservatives and libertarians. Their findings paint a more moderate position on the types of challenges conservative academics face compared to much conventional thinking on this subject. Evidence that they are the victims of a systematic campaign of exclusion and persecution doesn’t seem to exist. What does seem to exist is a host of other problems that must be carefully navigated. For example, many interviewees report self-censoring their comments and publications in various ways in order to receive tenure or other opportunities. But Dunn also reports that conservatives in the academy have found ways to get hired, obtain tenure, and thrive.

History of Violence: A Conversation with Barry Latzer Nov 11, 2021

This podcast with criminologist Barry Latzer focuses on the surprising findings in his latest book, The Rise and Fall of Violent Crime in America. Latzer discusses the violent crime wave that began in the mid 1960’s and how its sharp fall in the mid 90s has recast urban life in America. However, Latzer urges humility in understanding the rise and fall of violent crime, pointing to an array of social, economic, and demographic factors as likely reasons for the good news about the downturn in violent crime in the last two decades. While not dismissing recent calls for sentencing reform and a relaxation of aggressive law enforcement, Latzer argues for caution and notes that we remain a violent society as measured by arrests, convictions, and national crime surveys.

Congress as the Guardian of Individual Rights: A Conversation with Louis Fisher Jan 12, 2020

This episode of Liberty Law Talk is a conversation with congressional scholar Louis Fisher on his recent book, Congress: Protecting Individual Rights. Fisher argues that contrary to popular belief, Congress, not the Court, has been the foremost champion in protecting the rights of racial minorities, children, Native Americans, and religious liberties.

Publius for the People: A Conversation with Sanford Levinson Jan 12, 2020

Sandy Levinson joins this edition of Liberty Law Talk for a conversation about his latest book, An Argument Open to All: Reading The Federalist in the 21st Century.

The Prudence, Principles, and Passion of Edmund Burke: A Conversation with Richard Bourke Jan 12, 2020

Richard Bourke’s new book, Empire and Revolution: The Political Life of Edmund Burke is the subject of this new conversation at Liberty Law Talk.

Hamilton versus Jefferson: A Conversation with Carson Holloway on the Struggle to Complete the Founding Jan 12, 2020

This next edition of Liberty Law Talk is a conversation with Carson Holloway on his new book, Hamilton versus Jefferson in the Washington Administration.

The Myth of an Independent Federal Reserve: A Conversation with Peter Conti-Brown Feb 25, 2021

Peter Conti-Brown of the Wharton School comes to Liberty Law Talk to discuss his most recent book, The Power and Independence of the Federal Reserve.

Congress Derailed: A Conversation with Christopher DeMuth Jan 12, 2020

Christopher DeMuth, the great conservative authority on regulatory policy, comes to Liberty Law Talk to discuss his recent work on the institutional decline of congress and how it can return to its place of constitutional prominence.

Thucydides' Pursuit of Freedom: A Conversation with Mary Nichols Jan 12, 2020

In this Liberty Law Talk, Mary Nichols discusses her new book, Thucydides and the Pursuit of Freedom, which explores the idea of freedom in Thucydides’ History of the Peloponnesian War. This work, which Thucydides offered as a possession for all time, permits us, Nichols observes, to consider the manifestations of freedom in both cities and individuals.

Great Migrations: A Conversation with Peter Skerry Jan 12, 2020

This next edition of Liberty Law Talk is with Peter Skerry on the most significant story of 2015: the European migration crisis and what it portends for the European Union and the United States.

The Conservative Imagination of Russell Kirk: A Conversation with Brad Birzer Jan 12, 2020

Brad Birzer comes to Liberty Law Talk to discuss his upcoming biography of Russell Kirk entitled Russell Kirk: American Conservative. Our discussion focuses on the nature of Kirk’s conservatism and his place on the American Right. For example, many have prominently argued that Kirk’s conservatism is only strangely American. Birzer’s answer to this question will give these critics much to think about. We also discuss the influence of Edmund Burke and T. S. Eliot on Kirk, and we consider just what he meant by his invocation of the terms Moral Imagination and the Permanent Things.

The Paris Massacre and the European Future: A Conversation with Mark Helprin Jan 12, 2020

Award-winning novelist Mark Helprin is also one of the most significant voices writing on American foreign policy. Liberty Law Talk interviews Mr. Helprin about the recent terrorist attacks in Paris and what they mean for France, the European Union, and the United States.

Executive Power in the Age of Obama Jan 12, 2020

This edition of Liberty Law Talk features a discussion with George Mason Law School Professor David Bernstein on his recently released book, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law.

**Crime and Sentencing in America: A Conversation with Frank Zimring** Jan 12, 2020
This next podcast is with criminal law expert Frank Zimring, author of The City That Became Safe: New York’s Lessons for Urban Crime and Its Control, on the state of policing, crime, and sentencing in America. We discuss the revolution in policing and criminal deterrence in New York and what it has meant overall for criminal justice in America. In addition, our conversation focuses on recent efforts to reform state and federal sentencing laws.

"Don't do stupid stuff": A Conversation with Mark Moyar about President Obama's Foreign Policy Jan 12, 2020

This next edition of Liberty Law Talk is a discussion with historian Mark Moyar about his new book, Strategic Failure, which critiques the foreign policy pursued by the Obama administration.

The American Revolution and the Pamphlet Debate: A Conversation with Gordon Wood Jan 12, 2020

This next edition of Liberty Law Talk is a conversation with the great American Founding historian Gordon Wood on a new two volume collection entitled the American Revolution: Writings from the Pamphlet Debate that he has edited for Library of America. We discuss these foundational debates between British and colonial statesmen that contested the nature of law, sovereignty, rights, and constitutionalism and would serve as the basis of the revolution and lead to the creation of America.

Reagan's Legacy in a World Transformed: A Conversation with Paul Kengor Jan 12, 2020

This next edition of Liberty Law Talk features a discussion with Paul Kengor, co-editor with Jeffrey Chidester, of a new volume titled Reagan’s Legacy in a World Transformed that explores the incredible presidency and continuing impact of Ronald Reagan.

The Declaration: A Conversation with Barry Shain Jan 12, 2020

This conversation with Professor Barry Shain, editor of Liberty Fund’s new volume, The Declaration of Independence in Historical Context, explores the vigorous debates between the colonists and the British Empire that shaped our country’s charter document of independence.

Introducing the Constitution: A Conversation with Michael Paulsen Jan 12, 2020

This next edition of Liberty Law Talk is a discussion with Michael S. Paulsen, co-author with his son, Luke Paulsen, of their new book entitled The Constitution: An Introduction. The Paulsens’ book is a thoughtful and probing overview of the foundations and evolution of American constitutionalism.

Our discussion focuses on key ideas in the book: What does it mean to be a country that is defined by a written constitution? Is the Founders’s Constitution a pro-slavery document? Has the use of substantive due process in Lochner, Griswold, and Roe corrupted our understanding of the Fourteenth Amendment? Of what worth is the Youngstown decision that importantly limits executive power in the age of a rampant regulatory state? By returning power to the elected branches does the New Deal Court really restore the Constitution to its republican principles?

What is the State of the American Mind? A Conversation with Mark Bauerlein Jan 12, 2020

Is the American Mind–the collective intelligence of what it means to live as independent citizens and individuals in America–increasingly being lost? That is the subject Mark Bauerlein discusses with Richard Reinsch in this Liberty Law Talk. Some have argued that we are Becoming Europe in fiscal and welfare state policies. Others have noted the rise of political correctness as a smothering force in our society. Many have long observed that our education system not only inadequately prepares young Americans in primary schools and colleges and universities for the competitive private sector, but that it is nearly oblivious to the American Founding and the qualities of American citizenship. Mark Bauerlein, in a new volume co-edited with Adam Bellow entitled The State of the American Mind, pulls these critiques together in a powerful, contemporary light with 16 essays by various critics. Our conversation considers these contributions on education, politics, media, and culture.

How Modern Psychology Undermines Freedom and Responsibility: A Conversation with Theodore Dalrymple Jan 12, 2020

Frequent Law and Liberty contributor Theodore Dalrymple discusses with Richard Reinsch his latest book, Admirable Evasions: How Psychology Undermines Morality. Dalrymple, a former psychiatrist in the British prison system, diagnoses modern psychology’s tendency to enable its subjects or is it objects to engage in self-absorption not self-examination. The ultimate effect of various psychological schools, Dalrymple observes, is that of an acid eating away the responsibility and freedom of the human person. His solution: a return to literature, and with that, a return to the authenticity and realism of human action and its limitations.

The Takings Power: A Conversation with Ilya Somin Jan 12, 2020

Ilya Somin discusses at Liberty Law Talk his book The Grasping Hand: Kelo v. City of New London & the Limits of Eminent Domain. The book provides in part a fascinating account of the plight of the New London homeowners who challenged their city’s attempt to seize through eminent domain their homes for use in private development. In addition, Somin gives us a serious study of the eminent domain power, and he discusses why we need to reclaim a more restricted understanding of its legitimate use as opposed to the private to private takings blessed by the Court in Kelo and in many other cases stretching over several decades.

The Disappeared: A Conversation with Roger Scruton Jan 12, 2020

Roger Scruton discusses with Richard Reinsch in this edition of Liberty Law Talk his newest novel, The Disappeared. The story revolves around sex-trafficking in a northern city in present-day England, similar to the horrific disclosures of the recent Rotherham Report. It is also about the kind of society Britain has become. Interwoven in the novel is the fallout from the enthronement of multiculturalism, the welfare state, the cult of autonomy, and the loss of religious faith, all of which have brought a host of (unintended?) consequences. Many things have disappeared.

The Burkean Style of Daniel Patrick Moynihan: A Conversation with Greg Weiner Jan 12, 2020

Frequent contributor Greg Weiner speaks with Richard Reinsch about his latest book, American Burke: The Uncommon Liberalism of Daniel Patrick Moynihan, arguing that Moynihan’s liberalism combined a “stubborn optimism” in what government could and should do with a profound sense of limitations on “how it should attempt to do it.”

Economics in One Popular Culture Lesson: A Discussion with John Tamny Jan 12, 2020

John Tamny comes to Liberty Law Talk to discuss his excellent new book Popular Economics. Many will recall the first time they read Hazlitt’s Economics in One Lesson. That book’s clear prose and striking examples provided a foundational introduction to free markets. But, as is often true, our practices are better than our theories. We instinctively grasp economics in our daily habits and choices but misunderstand the conditions and principles that support economic growth. Americans are confused about inequality, trade deficits, antitrust policy, fiscal policy, minimum wage, job creation, etc, despite pursuing their own economic self-interest without much thought.

Dispelling such confusion is John Tamny whose work will become the Hazlitt of our day. Using examples from the Rolling Stones to illustrate the folly of taxing capital gains, why common antitrust theories were exposed by the FTC’s blocking of the merger of Blockbuster and Movie Gallery just as Netflix was making both companies obsolete, and demonstrating why the explanations of the 2008 Financial Crisis strain to avoid the obvious factor of currency devaluation, Tamny gives us free market lessons that we can’t not know. Enjoy the interview and buy the book!

Roving Bandits: A Discussion with Paul Nolette on the Power Wielded by State Attorneys General Jan 12, 2020

Paul Nolette comes to Liberty Law Talk to discuss his book Federalism on Trial, which demonstrates how state attorneys general quietly became significant national policymakers. What was once a rather staid position in state government has become the source of entirely new regimes of conduct impressed on companies and industries. Incredible evidence of this legal revolution can be seen in the Master Settlement Agreement with the tobacco industry, which, courtesy of the attorneys general, sent $200 billion to the states and negotiated an entirely new cartel for the industry without a single vote in Congress.

While some attorneys general have challenged key pieces of the Obama administration’s regulatory agenda, mostly what has occurred the past few decades is a bipartisan pro-regulatory agenda. In short, Nolette’s work indicates that we have been governed by a band of roving bandits who “bargain in the shadow of the law.” Under threat of investigations, lawsuits, and legal fees, companies and entire industries have accepted regulatory codes that, in many cases, were rejected by legislatures or not implemented by agencies. Not to worry, we discuss how State AGs pick up the slack, as it were, and make law in the gaps of accountability. That’s power, but it’s rule over and above the law.

We have Paul to thank for helping us get perspective on this disordered regulatory situation.

Public Union Power: A Conversation with Daniel DiSalvo Jan 12, 2020

FDR observed that “The process of collective bargaining . . . cannot be transplanted into the public service.” What does it mean for taxpayers if government workers organize into unions and engage in collective bargaining arrangements? What actually checks and balances their desires for greater pay and benefits? Politicians? Engaged citizens? Will dutiful public servants voluntarily restrain their appetites for the public good? To ask these questions is to answer them with a wry smile.

This episode of Liberty Law Talk with Professor Daniel DiSalvo on his new book, Government Against Itself, focuses on the dramatic growth of public sector unions in America. Legislatively created by states in the 1960s and 1970s, the rise of these unions has occurred without much public comment or notice. That changed with the 2008 financial crisis that exposed the fiscal weight these unions were imposing on states and localities, themselves struggling to meet their basic obligations.

Our guest doesn’t have much good news for those who believe in limited government. Public unions have contributed to unfunded pension liability for state and local government to the tune of $3.2 trillion or 21% of GDP. And this figure doesn’t include healthcare costs, estimated to be another $1 trillion. Crucially, DiSalvo stresses, government services, so greatly needed by the working class, languish because the primary need in many public budgets is to fill the growing salary, pension, and benefit needs of union members. In short, fundamental government work can’t be performed with anything like fiscal efficiency under the model of service that public sector unions create.

DiSalvo has the horrid details in this informative conversation on the past, present, and future of public sector unions in America’s states and localities.

Is America in Retreat? A Conversation with Bret Stephens Jan 12, 2020

This edition of Liberty Law Talk discusses with the Wall Street Journal’s Bret Stephens his recent book, America in Retreat. Stephens argues that an America which declines to engage globally with its military is accepting a false promise of peace at the expense of rising disorder. The introduction chapter is entitled “The World’s Policeman” where Stephens quotes President Barack Obama’s proclamation in a 2013 speech: “We should not be the world’s policeman.” Similarly, Rand Paul states that “America’s mission should always be to keep the peace, not police the world.” “This book,” says Stephens, “is my response to that argument.”

Our conversation focuses on the foreign policy choices that America should make by considering the factors that must be weighed and analyzed to make those decisions. Here, we disagree on foreign policy and strategy. If we believe, as Stephens argues, that “No great power can treat foreign policy as a spectator sport and hope to remain a great power,” then what, exactly, will that require? What are the ends that we seek, and what are the means at our disposal for pursuing a particular course? Why is a certain regional or national disorder in a part of the world America’s problem to remedy? How is that determination made?

While there is plenty of discussion on foreign policy here, Stephens also notes the strength of America. To Stephens’ credit he argues against the declinist talk we’ve seen take hold in recent thinking on America’s future. He marshals important data and tantalizing anecdotes that indicates something very much the opposite. Stephens observes the ways that elites from supposedly rising nations like China keep connecting their fortunes and their families to America. What do they know about us and about their own country that we choose to forget or ignore in our bemoaning of America? This conversation reminds us that for America decline is very much a choice. We can and should choose the better course.

The Dismal Performance in Federal Policy-Making: A Discussion with Peter Schuck Jan 12, 2020

Peter Schuck comes to Liberty Law Talk to discuss Why Government Fails So Often. Like James Buckley and John DiIulio, Schuck doesn’t have much good news for the large majority of Americans who are disgusted with the performance of the federal government and its ability to devise and execute policies. Schuck notes that in April 2013, only 28% of Americans had a favorable opinion of the federal government. Many have tried to explain this phenomenon with various government affirming answers, but Schuck is forthright in the book and this interview when he states that the best answer is that the “federal government does in fact perform poorly in a vast range of domestic programs.” One problem, among many, is that the bar to federal action is now so low. They can’t stop helping us.

When problems erupt: corrupt corporations, national security fears, financial crises, deficiencies in private healthcare, etc., the answer is massive statutes (Sarbanes Oxley, the Patriot Act, Dodd Frank, Obamacare), and even larger amounts of regulatory production and agencies to enforce them. Little consideration is given, Schuck notes, to questions of how markets will react to the regulations, how accurate the information is that policy-makers have relied on in shaping policy, and how credible and manageable the final product will be to those who will use it. Timeless problems of how centralization and knowledge impede effectively implementing the policies are rarely considered. Compounding this problem, Schuck says, is Congress itself, which is largely willing to push the real questions of statutory guidance onto the federal bureaucracy.

This discussion with Schuck also explores what he calls policy successes which are characterized by government not attempting to reshape markets and persons, but merely opening a legal door to goods for which there was pent up demand. Schuck remains a believer in the need for a large federal government, but notes that the way to competency and effectiveness isn’t likely to be found without substantial reforms in policy-making.

Putin's Russia: A Conversation with Karen Dawisha Jan 12, 2020

If there was any hope left that a Putin-led Russia might still transition to a democracy with a stable rule of law and truly independent civil society, Karen Dawisha’s Hayek Book Prize nominated Putin’s Kleptocracy would seem to have squashed it. Indeed, Dawisha argues that Putin basically rules through and with a criminal conspiracy whose goals are to “control privatization, restrict democracy, and return to Russia to Great Power (if not superpower) status.” She cites as powerful evidence the penalties imposed by the United States in April 2014 following the Russian invasion of Crimea. The American government didn’t primarily target Russia in its sovereign capacity, but instead issued asset freezes and travel bans on government elites connected to Putin. The best way to hurt the Russian regime was to issue private restrictions on many of its high-ranking officials.

Our knowledge of Putin largely owes to his clamp-down on journalists, speech, and protest rights that has grown worse over time, leading to widespread public resistance in 2011. By most accounts, Putin’s presidential win in 2012 has only led to an increase in repression of dissenting citizens.

Dawisha discusses that this pattern of rule began early in Putin’s political career. Putin began assembling his power base when he was deputy to the mayor of St. Petersburg. Here, he found a calling of sorts in his active management of power in St. Petersburg by allying with business, security, and political elites. He took these groups’ interests with him to Moscow in 1996 where he led the Federal Security Service. Called to Moscow for precisely his capacity to manage interests, Dawisha argues that “Putin and his circle sought to create an authoritarian regime ruled by a close-knit cabal with embedded interests, plans, and capabilities, who used democracy for decoration rather than direction.”

In the midst of Russian weakness in the 1990s, Dawisha discusses her documentation of Putin’s association with ex-KGB and former Communist Party politicians who believed in ‘revanche.’ They prepared for the moment of restoring Russian power, enlarging their wealth, and increasing their political power which was made possible with Putin’s presidential victory in 2000. And Dawisha observes that from the moment of Putin’s electoral triumph, “Russia ceased to be a place where democratic dreamers could flourish.”

Dawisha’s account of Putin also involves his “pleonexia” or nearly insatiable need for expensive personal items. Robert Kraft, owner of the New England Patriots, found this out the hard way in 2005, when Putin tried on Kraft’s first Super Bowl ring, encrusted with 4 carats of diamonds. Putin wouldn’t return it and departed the room, ignoring Kraft’s repeated demands to give it back. President Bush told Kraft that it would be better, foreign relations and all, if he stopped talking about it, and acknowledge that he had gifted it to Putin.

Leviathan by Proxy: A Discussion with John DiIulio Jan 12, 2020

This episode of Liberty Law Talk welcomes a truly gregarious man of public administration, John DiIulio, on his new book, Bring Back the Bureaucrats. That title might well lead to a collective sigh filling the air; however, DiIulio argues that we’re dishonest about the federal government in two significant ways:

(1) The federal government spends lavishly, but we borrow it from the wealth of future generations rather than tax ourselves.

(2) We actually administer most federal government programs not with federal bureaucrats but with a host of intermediaries: nonprofit entities, for-profit companies, state and local government employees that DiIulio refers to as “government by proxy.”

The number of federal bureaucrats hasn’t increased since 1960 while federal spending has ballooned. State and local government employees have increased dramatically in large part, DiIulio notes, to administer federal programs at their level. As a result, DiIulio argues that this government by proxy is another lie that lets us have big government but without actually seeing and feeling it. In the process, the feds have made many state and local government employees their agents while similarly corrupting the nonprofit sector, making it dependent on government for its revenues. The effects can be seen in incompetent and mismanaged government agencies, the proxies constantly lobbying for more money, with evident manifestations of stupidity visible in the daily headlines.

And so we can disagree with DiIulio. Will hiring federal bureaucrats with the intention that they must administer their own programs result in more limited, transparent, and accountable government? We might wonder how, exactly, is anything as large and monstrous as the federal government ever going to work well and accomplish its objectives efficiently? The nature of the case seems to augur against such a possibility. But DiIulio is here pointing to another discomfiting part of our government. We might dismiss his remedy but probably not his diagnosis.

To Adam Smith be True: A Conversation with Russ Roberts Jan 12, 2020

Did you know that Adam Smith’s The Theory of Moral Sentiments can change your life? In essays on self-knowledge, happiness, virtue, being loved and being lovely, making the world a better place, and most importantly, fame and self-deception, Russ Roberts’ new book on Smith explores why the 18^th century Scottish philosopher has the cure for the denizen of late modernity. The man mostly known for articulating in The Wealth of Nations how nations become rich and how they impoverish themselves also wrote eloquently on why we want to be loved and why we struggle with being lovely. In short, Smith soberly reminds that we easily deceive ourselves as to just how lovely we are. We want fame and wealth, Smith says, but does this conduce to our happiness? At the heart of our conduct, of knowing how to hit true north with our actions, is the impartial spectator according to Smith.

This spectator, Smith says, “is reason, principle, conscience, the inhabitant of the breast, the man within, the great judge and arbiter of our conduct. It is he who . . . calls to us, with a voice capable of astonishing the most presumptuous of our passions, that we are but one of the multitude, in no respect better than any other in it.” Roberts observes that this spectator is the community itself, reminding us of how small we are, of the humility that we easily forget. This is the problem we face in living well. How do we stand up in relation to the spectator?

But is this also Smith’s problem? We discuss what problems are introduced here with Smith’s impartial spectator. Does it have the objective capacity to chasten us if its standards are of the community? What if the community itself is bad?

There is also what is commonly referred to as the Adam Smith problem, which Roberts invites us to consider. How does the Smith of self-interest, of the commercial society that we see in The Wealth of Nations, reconcile its passions with the sobriety of life that he recommends in The Theory of Moral Sentiments?

Liberating the States and Their People from Federal Grants: A Conversation with James Buckley Jan 12, 2020

Now comes the great James Buckley to Liberty Law Talk to discuss his new book Saving Congress from Itself that argues federal grants-in-aid exemplify the obstacles currently posed to constitutional government. The key to our constitutional health must involve, Buckley declares, the elimination of these programs. The issue is more than just the overwhelming spending, which has soared from $24.1 billion in 1970 to approximately $640.8 billion in 2015. Buckley and I also discuss the obvious constitutional problems, namely, that through the so-called spending power Congress can impose laws on states that it otherwise possesses no constitutional authority to enact and enforce.

As Michael Greve has consistently noted in this space, state governments find it virtually impossible to leave federal grant money on the table, strings attached notwithstanding. Their loss, ultimately, is the ability of their citizens to freely govern themselves. However, the loss of self government is both local and national, as members of Congress divert their attention from the more pressing objectives of national government. They find it easier and more advantageous to manage the federal government on behalf of local concerns and interests that are served by grant programs.

The conceit of federal spending in the form of grants to states and localities is that Congress and federal agencies are better positioned to shape local priorities than the actual authorities elected for that very purpose. In this manner, centralization–the central mistake of the twentieth century–and its belief in experts ruling with and through knowledge continues unabated. Buckley, as the book’s subtitle states, has a plan to emancipate the states. The prescription we discuss is to end federal grants immediately, saving billions of dollars and, most significantly, restoring the Congress to its proper remit of deliberating national problems and issues in place of funding sidewalk construction in Sharon, Connecticut (Mr. Buckley’s hometown) on behalf of a federal anti-obesity initiative for children.

The Cost of Liberal Compassion: A Conversation with William Voegeli Jan 12, 2020

What does it mean to turn politics into an exercise of compassion? That’s the question William Voegeli invites us to consider in his latest book The Pity Party. He bids us to the same conclusion, but in policy and political terms, that our parents once gave us: pity parties are a guilt trip. Of course, the particular politics Voegeli is discussing emerges from the sense of injustice and unfairness that modern liberals everywhere perceive. Their primary motivation, however, is to relieve their own inner discomfort. Their compassion, even more problematically, is disconnected from any real notion of virtue or individual integrity. So the results of policies they champion, and the abilities of programs to uplift those in marginalized economic circumstances, isn’t the first priority or much of a priority at all. What matters is President Bill Clinton telling us that “I feel your pain.” Or his wife exhorting us to a politics of meaning and to be devoted to raising everyone’s children because we’re all part of the collective village.

Voegeli and I discuss the policies of compassion ranging from the Great Society, gun control, the welfare state, racial preferences, etc. and what their substance is really about. What matters at the pity party is to do something, anything for the marginalized and oppressed. Measuring if it works is not even secondary, Voegeli notes. In most cases, efficacious results aren’t considered or valued. The protagonist in this drama isn’t the oppressed, it’s the suffering liberal conscience. And that means that we are prohibited from looking too deeply into behavioral and cultural causes and links that might uncover the sources of failures seen in the lives of countless individuals and families. No, that’s part of the oppression, and isn’t compassionate. And on and on it goes.

Fortunately, we have Voegeli to shed light on this, unpack the pathologies at work, and, perhaps, point a way forward to the rightful use of compassion.

The Economic Crash that Cured Itself: A Conversation with James Grant Jan 12, 2020

What if a profound economic downturn occurred and the federal government basically ignored it? Couldn’t happen, right? In his latest book, The Forgotten Depression, James Grant details for us the depression of 1921 and how it was permitted to cure itself. We discuss in this podcast how the Wilson* and Harding administrations let prices and wages fall, balanced the budget, and raised interest rates through the Federal Reserve. The result was a painful and, more importantly, quick depression that righted itself by late 1921, setting the stage for the economic growth of the 1920s.

The comparisons are easy and telling. The 1929 crash saw the federal government choose the opposite course by quickly enacting wage floors and ceilings that were designed to keep people employed at current wages and to stabilize prices. Resulting from this policy, and a host of other unhelpful interventions, was an economic disaster that lasted more than a decade. Our own anemic recovery from the 2008 crisis has been medicated with fiscal stimulus, intense regulatory measures such as the Dodd-Frank Act “so this never happens again,” and the Fed’s quantitative easing making it akin to a sovereign wealth fund. The effect is that prices haven’t cleared and thus can’t accurately prepare and guide the market in a new round of economic growth.

Grant details for us that we once took a different path in the wake of economic distress, one that ended the pain faster, and didn’t grow government and diminish freedom. It is a history worth telling.

*Woodrow Wilson shouldn’t come off exactly smelling like roses for his benign policies after the decline. He was basically incapacitated at this point in office and relied on others to make policy here.

Flemming Rose on the Aftermath of the Mohammed Cartoon Crisis Jan 12, 2020

This next podcast is with the Danish journalist Flemming Rose, foreign news editor at Jyllands-Posten, on the controversy he ignited in 2005 when he published cartoons satirizing the prophet Mohammed. His new book, The Tyranny of Silence, offers his reflections on the conflagration that ensued, including a jihadist’s attempt to murder one of the cartoonists with an axe. Rose received the protection of Danish security services after threats were made on his life. Not bowing to intimidation, Rose has spent the last decade highlighting the dangers of foregoing a commitment to freedom of speech. Our interview delves into these experiences and also the lessons that Rose believes are a warning for individual and political liberties in Europe.

He commissioned the cartoons, he tells Liberty Law Talk, because he was taken aback by the self-censorship in Denmark, and throughout Europe, on the subject of Islam and its status in European democracies. And this self-censorship now frequently melds with legal prohibitions in certain European countries that vaguely hover over “incorrect” speech. The effect, Rose notes, is to drive controversial ideas or arguments out of the public sphere.

One surprise stemming from the Muhammad cartoons crisis, Rose observes, was the European elites’ retreat from defending free speech in favor of granting group rights and preferences. We discuss the new model of interaction exercised by political leaders in Europe, which is to deal with individuals within minority groups solely as members of those groups, religions, or ethnicities rather than as individuals. The consequences, Rose reports, are that “leaders” of Islamic communities are the only ones empowered to speak for Muslims, and they have great latitude to govern their communities separately, in many cases, from the legal and cultural norms of the country. On the basis of his interviews with young Muslim women in Copenhagen, Rose believes these women might be living with less freedom than they had in their (or their families’) countries of origin.

There is no doubt that Rose is a tremendous journalist who demonstrated his commitment to the basic truths of a free society. This interview is an opportunity to hear from someone who has ventured much in the defense of freedom.

The Ghosts of Presidents Past: A Conversation with Stephen Knott Jan 12, 2020

Presidential power scholar Stephen Knott discusses in this latest edition of Liberty Law Talk his book Rush to Judgment: George W. Bush, the War on Terror, and His Critics, recently released in paperback form by University Press of Kansas. Knott has a point in this book. He argues convincingly that the vituperative critics of George W. Bush’s use of executive power, in many instances, were willfully ignorant of the historical use of these powers. Past presidents, ranging from George Washington, Thomas Jefferson, James Madison, Abraham Lincoln and certain presidents in the twentieth century, defended and exercised powers similar to those employed by the Bush administration. But that, of course, raises deeper questions about the use of executive power in a republic that is governed by a written constitution.

A portion of this interview looks into those historical claims, but we also compare this use of power with the expectations of the Founders regarding executive power. In particular, their experience with crown prerogative shaped how they sought to limit such powers in the new Constitution. How does such an understanding square with much of our contemporary constitutional thinking and the precedents set by past presidential administrations? Finally, we consider the arguments made by Jack Goldsmith while he was head of the Office of Legal Counsel (October 2003 to June 2004), who contended some of the most striking actions taken by the Bush administration in the War on Terror were unconstitutional.

Who's Afraid of Consumer Credit? A Discussion with Todd Zywicki Jan 12, 2020

The market for consumer credit has been subjected to an ever increasing amount of federal regulation since the 2008 crisis. The Dodd-Frank Act created the Consumer Financial Protection Bureau to intervene in consumer credit markets and protect us from the rapacious lenders who devour household income and place consumers in unmanageable levels of debt through stealth and manipulative business practices. The predictable results have been a marginal increase in the cost of credit and its decreasing availability to lower income consumers as the CFPB’s rules price them out of this market.

Todd Zywicki, co-author of Consumer Credit and the American Economy, discusses in this podcast that the jejune view of this market articulated by Elizabeth Warren and other progressives isn’t supported by wide-ranging data. What the evidence tells us, Zywicki argues, is that when debt is measured and analyzed on a flow basis, meaning it is paired with consumer’s income streams, it is quite manageable for most households. Simply tallying up levels of consumer debt or overall credit card debt doesn’t give us a true understanding of how consumers are using it. Frequently, however, this stock to stock comparison is used in journalistic and media accounts to support the view that these markets are out of control.

What are the alternatives here? Well, loan-sharking used to be a brisk mafia business, often being their most profitable operation, Zywicki notes. Consider that Richard Nixon at the 1968 Republican National Convention explicitly called for its curtailment. Why? Under a former regime of strict credit controls and usury laws, consumers, many of a low income nature, couldn’t get the credit they needed. They did what they had to do, and that frequently meant turning to less transparent and accountable sources of capital. And of course, while loan sharks frequently stepped-in in former times, many consumers now turn to payday lenders as a needed source of credit in tough circumstances. Is this option somehow superior to credit cards?

What we might consider as a more significant challenge to the widespread use of consumer credit is that even if consumers are managing their debt, are they also building wealth? That is, is debt too easily resorted to instead of saving and investing through a more ascetic consumer lifestyle with the bigger, future payoff one of increased independence from both government and the vagaries of the market?

Leaving Behind the EU: A Conversation with David Conway Jan 12, 2020

The attempt by the media and the political elites of the three major political parties in the United Kingdom to heap contempt on Euroskepticism no longer possesses the same power. With the victory of the United Kingdom Independence Party in local and European Parliamentary elections, the prospect of the UK leaving the European Union is a live one. Indeed, Prime Minister David Cameron has agreed to a public referendum on this question in 2017 should the Conservatives be returned to power in 2015. I recently discussed the case for a UK exit with David Conway, a frequent contributor to this space, and author of the recent book With Friends Like These… Why Britain should leave the EU–and how.

This interview explores the major aspects of how an exit would impact the UK’s economy through potentially lost trade opportunities on the continent, but also what the country might gain by once again having control of its borders, its laws and regulatory apparatus, and no longer needing to align its defense forces with the EU. In general, Conway notes, the UK is coming to the proverbial fork in the road on a number of issues, that will force it to become either a full-fledged member of the EU or its own country. One thing is for sure, the time for straddling the fence on EU membership is coming to an end.

Telling the Truth about Aleksandr Solzhenitsyn Jan 12, 2020

Comes now the great Daniel J. Mahoney, author of penetrating intellectual biographies of Bertrand de Jouvenel, Raymond Aron, and Charles de Gaulle, among other books, to discuss his latest work, The Other Solzhenitsyn. Mahoney, coeditor of The Solzhenitsyn Reader, offers in this discussion a tremendous introduction to the Russian dissident writer’s oeuvre and a rebuttal to his many critics.

We might say that some Western writers who, from their position of faux outrage, frequently critique their governments, societies, and cultures have Solzhenitsyn envy, earnestly wishing their work had even a fraction of the impact of the Russian anticommunist’s corpus of writings. Not that they admire Solzhenitsyn’s political or moral philosophy, or his belief that freedom is ultimately born of spiritual commitment. They only yearn to have it said that their words put a “sliver in the throat of power.” Such was the praise given Solzhenitsyn in 1962 after the publication of One Day in the Live of Ivan Denisovich. (more…)

Rescuing American Prosperity: A Conversation with Joel Kotkin Jan 12, 2020

This latest podcast is with Joel Kotkin, America’s Demographer-in-Chief, on his recently released book, The New Class Conflict. Kotkin and I discuss his grave warning of an American future that no longer contains the promises of democratic capitalism. Two groups, in Kotkin’s telling, have converged and share a vision of America that is unconcerned with economic growth, shared prosperity, and the need to rein in state power. The book’s opening argues that this class of tech entrepreneurs and the “Clerisy” pose a fundamental challenge to America’s self-understanding as a nation of economic mobility:

In the coming decades, the greatest existential threat facing America lies with the rise of a new class order that leaves diminished prospects for the vast majority. In this emergent society, wealth and power are concentrated in ever fewer hands and threaten to erode much of the traditional appeal of America, its institutions, and sense of promise.

Instead, Kotkin argues that class divisions promise to harden underneath the influence of a newly-minted ruling class who, unlike its predecessors, is relatively unconcerned with upward prosperity and middle class abundance. The middle class is a diminishing category and those who compose its ranks are increasingly anxious about their future. Kotkin’s term for this disposition is the “Proleterianization of the Middle Class.” One massive barrier they face, according to Kotkin, is the indifference of the “Valley of the Oligarchs,” or that group of tech investors and moguls, software engineers, and other information technology denizens of Silicon Valley and Seattle who are increasingly able to shape the flow of information and media in America. These digital mavens are the new elites. However, said oligarchs don’t depend on a large middle class workforce to buy their products, nor do they create one with their labor needs. Their business incentives are unlike those that led the production and manufacturing kings of another period to promote a broad-based capitalism of mass employment, mass production and consumption. After all, affording a smartphone isn’t that difficult, but owning a new Ford required a good job.

So they show little concern with ensuring that needs like energy, housing, education, and other costs remain affordable for most Americans. The past conditions for upward prosperity that even many progressives once favored don’t register their approval. Instead, they find progressive solutions superior because they purportedly promote a clean-environment and lessen inequality through redistribution.

This brings us to another key aspect of the ruling class which Kotkin labels the Clerisy, or those academics, members of the administrative state, journalists, and related symbol-manipulators who believe they hold an authoritative role to proclaim the true ideals that will guide America’s future. While not directly aligned with the Valley Oligarchs, the two groups share basic goals of clean energy, diversity, sustainable growth, highly-dense urban planning, and the gnostic belief that science can authoritatively answer political questions. It follows that there are sheep and goats on every issue, and the Clerisy per scientific knowledge knows the difference. Together, this ruling class, Kotkin argues, poses a unique challenge to the American Dream.

The Pathetic Record of Environmentalist Pessimism Jan 12, 2020

This conversation with Patrick Allitt on his latest book, A Climate of Crisis, provides a historical judgment on the environmentalist movement in postwar America. We see its causes, self-understanding, and the motives and beliefs driving its adherents. Allitt, unlike most in this area, does not come to propose or critique policies, but to note the benefits and consequences that have resulted from the particular brand of environmentalism that emerged in America. Curiously, Allitt notes, environmentalism received its initial energy from the immense capacity for wealth creation that America generated in the postwar environment. This freed us to notice the damage that had been inflicted on the environment by industry and our careless practices. One must be separate from nature in order to be sympathetic to it.

In this respect, concern for the environment was the offspring of a tremendous achievement. Yet, the same confidence that filled Americans with respect to growing the economy and generally getting on with it after the Depression and the War, soon departed when it came to the environment. Allitt notes that the apocalyptic rhetoric that frames our debates on environmental policy has been present from the beginning.

Allitt discusses those whom he terms pessimists as the true believers who have insisted at every turn that we face various ecological crises. However, despite a long record of failed predictions and impugned hypotheses, their rhetoric and overall framing of the issues still drives our approach to the environment. In short, why do the losers, with their morally superior demands that we change our way of life, still shape the debate, even when proved wrong by scientific evidence, or in the case of Paul Ehrlich, a really bad bet with Julian Simon? Less noted, but highlighted by Allitt, is the case made by the optimists who have generally insisted that markets, wealth, and increased technological sophistication will enable us to surmount our ecological troubles. They have been right far more often than their pessimist opponents.

We close our discussion with the central issue of the day: global warming. Here, too, Allitt notes that we have a problem, but he looks to the past record to conclude that science and markets will ultimately make this issue manageable by a mediated solution versus the rather dramatic demands for economic transformation still issued in order to, you guessed it, save the planet.

Rule by Edict: Shep Melnick on the Power of the Civil Rights State Jan 12, 2020

This conversation with Shep Melnick looks into the enforcement practices of the Office for Civil Rights in the Department of Education, one of the most powerful and secretive agencies in the administrative state. This agency caught the attention of many in 2011 when Russlynn Ali, Assistant Secretary for Civil Rights, sent a “Dear Colleague” letter to colleges and universities lowering the standard of guilt in a sexual harassment or sexual violence proceeding from guilt beyond a reasonable doubt to preponderance of the evidence (i.e., it is more likely than not that sexual harassment or violence occurred). Topping it off was the letter’s statement that double jeopardy is permitted against an accused person should that person appeal an initial ruling by a campus judicial process. The letter stated that the failure to use this lower standard of evidence for a conviction will mean that a school’s grievance procedures are inconsistent with Title IX. In short, “Dear Colleague,” you lose your federal money and will be the recipient of an embarrassing federal investigation, but thanks for playing.

In the wake of this severe deprivation of due process by Obama’s Office for Civil Rights, many have been puzzled about how this could happen. How a federal agency could use a “Dear Colleague” letter to enforce Title IX of the Civil Rights Act to begin with, not to mention using an informal method to diminish the constitutional rights accorded the accused of sexual violence charges, is a question that can only be answered by digging into the troubling, if not unlawful, practices of this significant agency.

Fortunately, we have Shep Melnick to inform our understanding of the tremendous growth in power of the “Civil Rights State.” Melnick discusses the power of the OCR, and how it has established its ability to rule informally, outside of the law, and with little accountability to Congress and the statutes that authorized its existence. Importantly, he provides guidance on how to begin curtailing the OCR’s unlawful edicts.

Achieving America's Peace Sep 22, 2021

Angelo Codevilla comes to Liberty Law Talk to discuss his latest book To Make and Keep Peace Among Ourselves and with All Nations. Our conversation focuses on Codevilla’s main argument that American statesmen increasingly fail to understand the nature and purpose of statecraft: the achievement of peace. So what does it mean to achieve America’s peace? To do so, Codevilla insists, requires concrete evaluation of the means and ends necessary to protect American interests. This requires particular judgments about power, interests, and the practial reality we are confronted with. Our practice, for well nigh a century, has been to speak in glittering generalities about America’s role in the world as a force for democratic and humanitarian progress, refusing to recognize the unwieldy consequences that result from applying abstract ideals in a Hobbesian environment. The refusal to be frank about how military victory must be used to achieve a peace on American terms not only produces unending conflicts with no clear idea of victory, but also leads to deep reverberations in domestic politics as coalitions form around perceived patriotic and traitorous courses of action. Post 9/11 politics, anyone?

We also explore what Codevilla perceives as the failures of our major schools of foreign policy. The neoconservative believes that an aggressive America must give a shove to the forces of global democratic progress, while the internationalist has a similar end in view but wants to secure it by reducing American power in the world, harnessing and moralizing our power and interests through an array of multilateral institutions and treaties. In a different vein, the realist assumes that all nations have the same kinds of interests and pursue the same goals regardless of the ideological cast of regimes and governments. All three approaches have been tried repeatedly, but, Codevilla argues, America’s interests have not been secured. Even though our nation wins its battles and wars, we lose our peace. Where then to look for wisdom in the practice of successful statecraft? That is where the conversation begins.

The Unlawful Administrative State: A Conversation with Philip Hamburger Jan 12, 2020

The standard narrative used to justify the existence of the administrative state and thus legitimate its powers is that America in the late 19th and early 20th centuries entered into a realm of industrialization, corporate power and concentration, density and urbanization, among other causes, that entailed the need for expert rule in executive agencies. Necessity of government action required courts and rule-making agencies that could adjust the social order to rapidly arising needs not anticipated in the ‘horse and buggy’ Constitution. However, what if there really is nothing new under the sun about administrative power? Instead, what if its call for the exercise of judicial and legislative powers, apart from the channels of the Constitution, also found comparative expression in medieval and early modern legal absolutism, particularly in the Stuart monarchs? That’s the stunning claim made by Philip Hamburger in his latest book, Is Administrative Law Unlawful?

Hamburger does not make formal arguments of constitutional law, instead he seeks to show that administrative law, which he hesitates to even properly call law, is a fundamental threat to our liberties in its very operation. The administrative state, he believes, must first and foremost be criticized for the deprivations it works on individual liberty in defiance of the core protections set forth in the Anglo-American legal tradition. This conversation explores how the administrative state operates above and apart from the law. We focus on the detailed legal historical arguments made in the book that compare the operations of our administrative state with the prerogative powers of the Stuarts as the best way to understand the constitutional settlement of the 17th century that law must be exercised through the law of the land and the courts. This settlement naturally found expression in our own Constitution. The reasons why our Founders set forth these limitations are at the heart of Hamburger’s book and this podcast.

The Ascent of Originalism: A Conversation with Michael Rappaport Jan 12, 2020

The many schools of originalism all face the same questions: does it merely perpetuate the dead hand of the past? What about the exclusion of women and blacks at the Founding? What does one do with the mountains of non-originalist precedent? This next podcast with our own Mike Rappaport, prompted by his new book that he co-authored with co-blogger John McGinnis entitled Originalism and the Good Constitution, focuses on the rise of originalism as an intrepretative methodology for Constitutional Law and attempts to answer these and other questions with a new framework called original methods originalism.

Our discussion thus focuses on the central claim of original methods which is that the enactment of the Constitution and the approval of its subsequent amendments were achieved under supermajority requirements. So we have an enduring Constitution because it has been built to satisfy more than mere majorities. As such, we discuss this important rationale for why its original meaning should be preserved.

The Revised Version of American Religious Freedom: A Conversation with Steven Smith Sep 13, 2021

This next episode of Liberty Law Talk is with Steven Smith on his new book The Rise and Decline of American Religious Freedom. Our conversation explores Smith’s challenge to the dominant academic narrative that the Supreme Court’s mid-twentieth century decisions imposing secular neutrality vindicated the religion clauses of the First Amendment. In this version, their essence was to secure a government free of religion, tout court. But what if the First Amendment’s original public meaning and subsequent practice reflected a very different essence?

Our conversation begins with the history of the ratification of the First Amendment. What do we make of the fact that the religion clauses were scarcely debated in the Congress that approved them? Smith argues that this should dissolve any notion that a grand constitutional moment occurred and that gave us the religion clauses as “articles of faith” in secularism. We discuss Smith’s view that the lack of debate owed to an existing consensus that wanted to prevent the national government establishing a national church while the states would continue their established churches, in some cases, and other lesser forms of religious influence in their laws. Contrary, Smith argues, to a national standard of religious freedom or secularism, the constitutional course was “contestation” or an ongoing conflict between religious and secular claims. Thus the Court’s separationist jurisprudence of mid twentieth century, Smith discusses, was a departure from an original understanding of religious liberty and its practice for most of our history.

Smith also discusses and disputes the view that American religious freedom is an outcome of the Enlightenment. His controversial claim is that it is a recovery of a key concept of Western civilization, freedom of the church, and, its later Protestant development, freedom of the “inner church” or conscience. Recovery is here stressed because it was modern political development, Smith notes, that had subordinated the church to the state and stripped it of institutional freedom.

Herbert Hoover's Righteous Crusade Against the New Deal: A Conversation with George Nash Jan 12, 2020

Herbert Hoover’s legacy is perhaps forever linked with the failure of the American economy under his presidency after the stock market crash of 1929 and his ensuing defeat by Franklin Delano Roosevelt in the election of 1932. Further adding to his difficulties is the charge that he was progressive-lite in his policies before and after the Great Depression. The proper foundation, it follows, for advocates of a renewed conservative focus is Calvin Coolidge, a President who cut budgets and taxes. This discussion with Hoover scholar George Nash begs to differ.

Nash, who previously appeared on Liberty Law Talk to discuss the lost Hoover memoir he edited entitled Freedom Betrayed—a brilliant criticism of American foreign policy from the late the 1930s through the early postwar period—has now edited another memoir of Hoover’s. This discussion with Nash on The Crusade Years 1933-1955: Herbert Hoover’s Lost Memoir of the New Deal Era and Its Aftermath considers the thoughts, writings, and speeches of Hoover across three decades as he attempted to rally leaders and citizens against the New Deal. Hoover charged that the New Deal would produce a regimented America, one that was no longer free under the rule of law and limited government. In short, Hoover became to the New Deal what Edmund Burke was to the French Revolution, a tireless enemy. So what is the final legacy of Herbert Hoover? This discussion of Hoover’s memoir on domestic policy might cause you to rethink your former assessment.

Getting Right with the Fourteenth Amendment: A Conversation with Kurt Lash Jan 12, 2020

Kurt Lash comes to Liberty Law Talk to discuss his newest book, The Fourteenth Amendment: The Privileges and Immunities of American Citizenship. If you think the Slaughter-House Cases of 1873 gutted the Privileges or Immunities Clause of constitutional meaning and set us on our present course of strangely incorporating the Bill of Rights through the Due Process Clause, then you need to listen to this conversation. Lash argues that the original public meaning of the Fourteenth Amendment’s Privileges or Immunities Clause is definite once you understand the context of the debate in the 39th Congress.

Rather than emerging from the Comity Clause of Article IV, Section II, Clause 1, Lash argues that John Bingham and Jacob Howard, the two representatives who led congressional approval of the 14th Amendment, adjusted to criticism and pinned the Privileges or Immunities Clause on embodying the first 8 amendments and other enumerated rights of the Constitution. Nothing more was intended. In this way, these amendments were now barriers to state action. Rather than being a somewhat mysterious clause containing a seemingly limitless number of fundamental rights, Lash argues that the meaning of Privileges or Immunities is clear. As a result, incorporation of the first 8 amendments of the Bill of Rights, for the sake of political morality, correct history, and constitutional meaning, should happen through the Privileges or Immunities Clause of the 14th Amendment.

Critiquing Leo Strauss from the Right Jan 12, 2020

This next episode of Liberty Law Talk is a discussion with author and professor Grant Havers on his conservative critique of Leo Strauss. Many conservatives hold Strauss in high regard as a thinker who shaped their intellectual commitments. Havers discusses the question: what’s so conservative about Strauss’ philosophy?

Havers’ recent book Leo Strauss and Anglo-American Democracy: A Conservative Critique contends that Strauss was a liberal Cold War warrior who most wanted to defend the foundational principles of British and American democracy. Going to the heart of Strauss’ philosophical principles and his grounding of modern constitutional liberty in classical Greek political thought, Havers argues that these ideas fail to uphold the political tradition Strauss was loyal to. Moreover, does Strauss’ approach unduly ignore other contributions that are more historically connected with Anglo-American liberty? Here, Havers emphasizes religion and modern sources that, he contends, have guided its political practices and its leading statesmen. In this regard, Havers’ book is also an important Protestant assessment of Strauss’ ideas. Enjoy!

Robin Harris Discusses the Rise, Fall, and Legacy of Margaret Thatcher Jan 12, 2020

Margaret Thatcher’s death one year ago sparked much commentary either critical or adulatory. You were certainly hard-pressed to find balanced commentary on her legacy unless you were reading Theodore Dalrymple’s thoughtful assessment on this site (his latest on Thatcher is here). Now contributing to this site’s ongoing appraisal of Thatcher is Robin Harris, her speechwriter and policy advisor. He comes to Liberty Law Talk to discuss his highly-acclaimed 2013 biography of the Iron Lady entitled Not for Turning: The Life of Margaret Thatcher. Harris worked closely with Prime Minister Thatcher from 1985 until her departure from Number Ten. He left with her and subsequently drafted the two volumes of her autobiography.

Harris includes in the book a letter he received in 2005 from Thatcher. She states the following:

Over the years, both during my time as Prime Minister and since, you played an important role in shaping not only my own thinking but that of the Conservative Party. As a key figure in Central Office during the 1980s you knew the struggles we endured in turning our beliefs into policy, often in the face of severe opposition. And because we have spoken about it so often, you also know, better than anyone else, what I wanted our reforms to achieve for the people of Britain.

This discussion recounts both Thatcher’s rise in the Conservative Party as she waged a rebellion against its uninspired leadership and her intellectual development into an adherent to free-market, small government, and low tax policies. Talking with Harris, we begin to understand just why she was the Lady who was ‘not for turning’.

Presidential Power Rising: A Conversation with Frank Buckley Jan 12, 2020

This next Liberty Law Talk is with Frank Buckley about his new book The Once and Future King: The Rise of Crown Government in America. Buckley’s book is a profound challenge to the script of presidential power that many conservatives have read from over the past decades. Our conversation focuses on Buckley’s argument that the American constitutional system has become dangerously unmoored from the congressional system of government that its ratifiers intended for it.

This conversation explores a close reading of the Constitutional Convention of 1787 to understand Buckley’s claim of how indisposed the members of that convention were to an executive power that would dominate the federal government. All of this matters profoundly, Buckley contends, because presidential forms of government are not, generallly speaking, well disposed to freedom. Parliamentary systems are in fact freer than their presidential rivals. Among presidential systems, America has been the exception in the high level of freedoms it has preserved.

There is, however, great reason to be worried, Buckley observes, that such a trend will continue for much longer. Power continues to accrue in the American presidency, and congress shows little willingness to reassume the full constitutional powers granted it to run the government.

America's Way Back Jan 12, 2020

Friedrich Hayek once noted that “A successful free society will always in large measure be a tradition-bound society.” In pursuit of Hayek’s wisdom, this podcast with Donald Devine, author of America’s Way Back: Reclaiming Freedom, Tradition, and the Constitutionfocuses on his attempt to revive fusionism by harmonizing freedom and tradition in the manner once proposed by Frank Meyer.

While conservatives and libertarians have long been fractured, Meyer attempted in a series of essays almost fifty years ago to find the principles that would unite them. He observed that individual freedom emerges from the religious and moral heritage of the West. However, this freedom presupposes virtue that individuals must practice in order to be free. This heritage of freedom and its underlying principles forever remove the state from possessing a comprehensive ordering role in the lives of its citizens. So the state should not and cannot make virtuous individuals, but freedom, Meyer argues, requires virtue and the commitment to excellence in the use of one’s choices. Freedom is high drama and welcomes family, religion, and the arts of association for its support. Believing that we are a nation exhausted by the size of government and the inefficacy of our major parties to defend the American tradition of liberty, Devine discusses why we need to recover Meyer’s fusionism today.

Common Core Nation Jan 12, 2020

In this discussion I talk with Professor Sandra Stotsky who has emerged as one of the leading critics of the Common Core State Standards Initiative. Stotsky has testified before numerous state legislatures and has written reports and op-eds documenting its deficiencies. Common Core aims to be a national solution to the problems of performance that have dogged education in America. As such, its scope is comprehensive in its attempt to impose education standards, testing requirements, teacher and student evaluations, among other items, on all 50 states. Currently, 45 states have accepted the standards and are implementing curricula around them. But do the standards actually raise the knowledge bar? Stotsky, who was for a time a member of the validation committee, argues the opposite. Educations standards are lowered by the Common Core in an attempt to get to the next-best result. Its own writers seem to agree.

This process, as noted by Stotsky, has never been driven by the states. Rather, it is the outcome of philanthro-policy making, notably the Gates Foundation and the National Governors Association, and a heaping dose of cartel federalism courtesy of being tied to the Obama administration’s Race to the Top legislation. As Stotsky and I discuss, slighted by the process have been parents, teachers, and local school boards who have somewhat helplessly watched their State Boards of Education adopt the standards, in many cases before they were even finalized, in order to receive largesse. States accepting the Common Core standards and testing apparatus received money and a waiver from No Child Left Behind requirements—the last successful attempt at national education policy.

In almost 4 years, the Common Core standards have swept the country and only now is a real push-back beginning to occur.

PovertyCure: From Aid to Enterprise Jan 12, 2020

Can the current model of humanitarian aid generated by networks of large philanthropic foundations, NGOs, and Western governments actually alleviate the poverty of the world’s Bottom Billion, to quote the title of Paul Collier’s book? This podcast with the Acton Institute’s Michael Miller, director of the new Poverty Cure Initiative, puts forward a persuasive case rooted in particular communities in Africa and South America that the conditions for prosperity emerge from our free and relational nature as human beings. Accordingly, authentic help to the world’s poor must not be driven by the notion that the global poor are the objects of wealthy compassion, but that they are the subjects of creative potential. As Miller discusses, the prevalent humanitarian aid model frequently uproots the very beginnings of the circles of exchange that must exist for wealth to be created in these societies. Frequently missing as well in the current approach is understanding how crucial the rule of law, property rights, and markets are in the uplift from poverty, and that frequently, these economic and legal orderings are absent in regions of hardship. Consequently, the conditions for human flourishing don’t exist and cannot be created by large philanthropic interventions, which everywhere substitute parental relationships between the donor and recipient in the place of real human flourishing in these communities.

The New Deal & Modern American Conservatism Jan 12, 2020

This next Liberty Law Talk is with Gordon Lloyd of the School of Public Policy at Pepperdine on his new book, co-authored with David Davenport, The New Deal & Modern American Conservatism (Hoover Press, 2013). Much has been made, and rightly so, of the example set by Calvin Coolidge in his confrontation with the forces of taxing and spending and nascent regulatory attempts to cartelize certain markets, among other challenges he faced. However, might it be that Herbert Hoover and his “American System” articulated in the 1932 campaign, along with his subsequent attempts to repeal the New Deal, offers the better teaching moment? After all, as Lloyd stresses in this conversation, Hoover confronted dead-on the revolutionary moment urged by Progressives in the form of the New Deal. He lost, but the principles he articulated remain latent within our Constitution and civil society. As the authors state on the first page, “Go back to come back.” This conversation focuses on Hoover, his defense of the American constitutional order, and what this might mean for our contemporary challenges.

The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left Jan 12, 2020

This edition of Liberty Law Talk is with Yuval Levin, author of The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left. A 2013 Bradley Prize recipient, Levin connects us with the actual contest between Burke and Paine as they debated the central claims of the French Revolution and much of modern political thought with its focus on rights, individualism, the social contract vs. Burke’s more expansive notions of social liberty, the contract among the dead, the living, and those yet to be born, and his belief in prescription or the notion that change should be guided within the broad lived experience of the nation. Levin and I discuss the terms of the Burke-Paine debate while considering how it continues to shape the contours of current political conversation.

Power Tends to Corrupt Jan 12, 2020

Christopher Lazarski comes to Liberty Law Talk to discuss his deep inquiry into Lord Acton’s attempt to understand the dimensions and nature of liberty as it unfolded in Western history. In this podcast, Lazarski underscores Lord Acton’s historical quest to find the conditions of liberty, as well as his formal understanding of what constituted liberty. The conditions of Acton’s ordered liberty we can describe as “arbitrary law,” national history, and a bottom-up development of positive law.

Arbitrary law was Acton’s way of describing divine and natural law, which he believed a pillar in support of political liberty because it was law that transcended human invention. The significance is that man is not the author of truth and authority but discovers and receives them. As a result, Acton stresses that liberty is a “summons to do what one ought,” and not a expansive practice limited only by the rights of others. National history is merely that political tradition that provides weight and context to the collective choices being made by persons in society. Perhaps the key here is the generational inheritance of a regime of ordered liberty that must be preserved and modified by each subsequent generation. Again, liberty under law is profoundly stressed by Acton. Lastly is the growth of rule of law by communities in their traditions and habits as opposed to the geometric projection of individual liberty from the center as in the French Revolution. Lazarski also provides a fertile discussion of Acton’s understanding of liberty of conscience and his differences from John Stuart Mill on the general question of liberty.

Slavery, Abortion, and the Politics of Constitutional Meaning Jan 12, 2020

This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion, the 14th Amendment and its privileges or immunities and due process clauses, abortion and the common law, the historical legal record the Roe Court relied on, and Rawlsian public reason as a legitimating authority for political debate.

Immigration and the American Exception Jan 12, 2020

This next conversation is with Richard Samuelson on the constitutional principles that have guided our nation’s approach to immigration, that is, until recently. In an essay in the Summer 2013 Claremont Review of Books, (link no longer available) adapted from an academic version published in Citizens and Statesman, Samuelson argues that

Our political institutions strive to treat individuals as individuals, who relate to the government on that basis, rather than as parts of groups, castes, or classes. A regime dedicated to protecting the rule of law and the rights of men–including the right of each individual to make his way in the world, and to keep the rewards he gains for his work and talent–was the key to making America a beacon for wandering peoples, and for immigrants in general.

Things changed, Samuelson observes, with the tremendous growth in government power and its centralized administrative capabilities. This fact alone threatens to fundamentally change our exceptional approach to welcoming new entrants to the country. In short, the federal government relates to Americans not as individuals but as members of divers groups, rent-seeking, special interest, race, gender, the list is long. Consequently, the federal government no longer understands the individual citizen as deserving of equal treatment apart from group membership. If this is true, and much evidence suggests it is, our approach to immigration will be the management of hyphenated groups and not persons “as equal citizens, creating together the government by which we secure those public goods that cannot be secured any other way.”

In Sunlight and In Shadow Jan 12, 2020

Mark Helprin, award-winning novelist, former member of the Israeli Army and Air Force, foreign and military policy strategist, comes to Liberty Law Talk to discuss his latest novel, In Sunlight and In Shadow. Strange, you say, for a site devoted to law and political thought to devote time to a novel, a love story at that. However, Helprin’s book is a story of many things that all seem to connect and hold together. The tapestry created is of love, honor, dignity, and the freedom to act heroically within a democratic political and social order that trims, calculates, and forgets the preconditions of its freedom and prosperity. Helprin’s novel might best be described as an extended meditation on Beatrice’s response in the second Canto of the Inferno, amor mi mosse, che mi fa parlare “love moved me and made me speak.” This, Helprin notes, was Dante’s explanation for why he wrote the Divine Comedy. Set in New York City in 1946, the novel is also about a confident and united postwar America. Within this setting we are treated to the grand love story of Harry Copeland and Catherine Thomas Hale.

Harry, a former paratrooper in the 82nd Airborne during the war, served as a “pathfinder” charged with marking the way, conducting reconnaissance, and creating havoc in advance of the main body of paratroopers. He doesn’t stumble in the aftermath of the war, but Harry isn’t exactly thriving either. Instead, he is somewhat aloof from his father’s fine leather goods business, and otherwise he forgoes choosing the life he should lead.

Harry’s indecisiveness soon leaves him when he spies Catherine on the Staten Island Ferry. His love for her, immediately evident, calls him out of himself, and demands the defense of the things he loves. He must win her and prove to himself that he is worthy of her love. His business is set upon by the mafia, so Harry will protect it when the law fails him, refusing, ultimately, to run or pay protection money. His actions of rising above the law to defend the law are not really about upholding the business as a going concern per se, or his need to impress Catherine, daughter of a fantastically wealthy family, but the vindication of his immigrant Jewish father and his family. Their memory will stand, as will the community formed among Harry and the employees that make its goods, many of them being immigrants and newly-minted American citizens. The story is beautiful. As one reviewer noted, his only displeasure with the novel was that it had to end. Agreed.

Twilight of the American Republic Jan 12, 2020

This next Liberty Law Talk is a conversation with Justin Litke on his new book, Twilight of the Republic. Our conversation focuses on the book’s attempt to situate twentieth century claims of American Exceptionalism within the context of the political symbols and public meanings that are revealed in significant political documents stretching back to the Mayflower Compact and forward to Albert Beveridge’s 1900 Senate speech “In Support of American Empire.” Along the way, we discuss the Declaration of Independence, Federalist Papers, the Constitution, and the presidency of Abraham Lincoln in order to better understand Litke’s powerfully argued claim that the constitutional consensus of our Founding has broken into competing meanings. We are no longer even aware of the prior political tradition of our Founding, Litke contends. As a result, America now authorizes its political actions under various ideologies in both the domestic and international spheres with such policies frequently resulting in deleterious consequences.

The Tragedy of Religious Freedom Jan 12, 2020

This next Liberty Law Talk is with Marc DeGirolami on his new book, The Tragedy of Religious Freedom (Harvard University Press, 2013). Central to DeGirolami’s argument is the failure of monistic accounts that seek to resolve religious liberty disputes by cosmic appeals to neutrality, equality, or other universal rationales. These fail because they do not consider the range of conflicts, practices, traditions, and meanings that are at stake in these highly controverted cases. Similarly, DeGirolami takes issue with those who deny even the possibility of the concept of religious freedom. Instead, he looks in a Burkean manner to how the practices and traditions of religious liberty have inherent meaning and worth to their participants. The existence of various forms of outward religious expression testifies to their goodness in virtue of having become living projects of individuals and citizens. It follows that disputes between litigants advancing secular arguments against religious expression should be weighed and judged not by “abstracted, absolute values” but by social history and a pluralistic perspective. In doing so, courts would recognize that these are “irreducible conflicts” that should be judged with balance and a common law methodology that would move slowly and refrain from issuing sweeping decisions one way or the other.

Law, Legislation and Liberty Jan 12, 2020

This Liberty Law Talk is with philosopher Eric Mack on Friedrich Hayek’s 1973 magnum opus,Law, Legislation and Liberty. Hayek’s significant trilogy distinguishes between law and legislation, considers the appropriate rule of judges within a spontaneous order, observes the difficulties of even defining social justice, and attempts to set forth the principles of a new constitutional order for a free people. This conversation considers at length the major ideas that Hayek advances in his incredible work on the principles of law and just order.

Reforming Class Action Abuse Jan 12, 2020

This Liberty Law Talk is with Ted Frank on reforming class action litigation and, in particular, the settlements plaintiffs receive under the current system. Frank, the founder of the Center for Class Action Fairness, argues that class-action suits contribute little to plaintiffs and substantially benefit only their lawyers. Monitoring and agency problems reign because most plaintiffs lack the incentives to ensure that the class’s lawyers are actually representing their interests and not the lawyer’s monetary desires. We also discuss the turn to arbitration by companies as an exit from class actions and Frank’s work that contests egregious attorney fee awards in class settlements. To date, the CCAF has had over a quarter of a billion dollars in attorneys’ fees reduced in class action awards.

Accelerating Democracy Jan 12, 2020

This next Liberty Law Talk is with John McGinnis, the George C. Dix Professor of Constitutional Law at Northwestern University, on his book Accelerating Democracy: Transforming Governance through Technology. McGinnis aims for an updated government that will use technology enabling it to fit with the progression of change in the twenty-first century. This involves improving the government’s capability to better utilize accumulated information to make sounder public policy. Part of this, McGinnis argues, is in using prediction markets and ensuring that information flows more transparently to citizens. Also, government must not stand in the way of new developments like Artificial Intelligence. In the case of prediction markets, McGinnis asserts that government should actually support such technologies to ensure increased accountability in government.

First Amendment Institutions Jan 12, 2020

The next Liberty Law Talk is with Paul Horwitz on his new book, First Amendment Institutions. Horwitz challenges the dominant legal perspective on free speech in American law, which focuses on speaker and state. Instead of this acontextual approach, Horwitz poses that speech is impossible without the institutions that both form it and give it the opportunity to be heard. Institutions are the “scaffolding” of the individual’s right to free speech and should be accorded greater autonomy from the state in their self-government. Horwitz would include many state institutions in this category. Thus, the law, in regulating or permitting speech, must be guided by the shape and contour of these institutions and their meaning to civil society. When this is done the legal results will seem surprising but more in tune with how citizens actually live as neighbors, students, members of religious bodies, volunteers, etc.

Financing Failure: A Century of Bailouts Jan 12, 2020

So we were told with the passage of the Dodd-Frank Act that too big to fail was now behind us. Except it isn’t. In fact, the conditions supporting bank bailouts have only gotten worse with the nation’s largest banks actually increasing in size and scope since 2008. TBTF, however, goes back farther than you might think. This podcast with Vern McKinley on his book, Financing Failure, discusses the regulatory history of bank bailouts rather than winding down insolvent institutions. Contrary to the Hank Paulson and Ben Bernanke narrative of the 2008 crisis, although the scope of the problem was new, the subject matter of the problems faced by regulators was anything but unique. McKinley provides this account in interesting detail and considers our future under Dodd-Frank.

Rediscovering the Missing Element of the 'Dismal Science' Jan 12, 2020

This next Liberty Law Talk is with John Mueller, author of Redeeming Economics. Modern economic thought focuses on production, exchange, and consumption. Much of Mueller’s focus, however, is on final distribution, or the notion that a great deal of our economic activity is really about providing benefits or gifts to those we love. Mueller returns to Aristotle to articulate why this missing element is so important for understanding economics. In his Politics, Aristotle described the economy by using a household model oikos, the root of our word economics, where agents distribute goods to increase the flourishing of family members and friends. Augustine of Hippo, Thomas Aquinas, and the Scholastic school, as noted by Joseph Schumpeter in his History of Economic Analysis, refined and developed this notion of final distribution as a prime component of economic analysis. Our conversation turns to this missing element and seeks to understand what it adds to economic thought and what has been lost by its omission.

Theodore Roosevelt and the American Political Tradition Jan 12, 2020

Who could be more American than former president Theodore Roosevelt? You might be surprised if you listen to the next Liberty Law Talk with Jean Yarbrough on her newest book, Theodore Roosevelt and the American Political Tradition. Winner of the American Political Science Association’s Richard Neustadt Award, Yarbrough’s book is an incredible study of Roosevelt as student at Columbia, as an accomplished historical writer, and as a statesman.

We might conclude, Yarbrough observes, that it is Roosevelt’s robust American nationalism, his vigorous spirit, and his environmentalism that produced our national parks which marks him as a prominent president. Indeed, his place on Mount Rushmore, where he sits with George Washington, Thomas Jefferson, and Abraham Lincoln, seems strange otherwise. Unless we count his prescient leadership of an emerging American nation departing from its decentralized past as worthy of remembrance, then it becomes difficult to find his great stature.

On this progressive legacy of Roosevelt, Yarbrough focuses much of her scholarly attention. Roosevelt publicly professed admiration for the American Constitution and the ideas of our founding, but departed from them as president, particularly in his second term. He embraced the administrative state before Woodrow Wilson. Roosevelt found no real limits to state power, and believed the federal government indispensable in the active management of the economy. He wanted presidential power to become more, an embodiment of the American people. Redistribution of wealth also had his support. In his New Nationalism speech he stated: “We [the government] should permit it [wealth] to be gained only so long as the gaining represents benefit to the community.” This is the Teddy Roosevelt we need a clearer understanding of, and Yarbrough has certainly provided it.

Constitutional Conservatism Jan 12, 2020

This Liberty Law Talk is with Hoover Institution fellow Peter Berkowitz on his new book Constitutional Conservatism: Liberty, Self-Government, and Political Moderation. The book deepens Frank Meyer’s conservative fusionist project by adding an Aristotelian and Burkean challenge to both libertarians and conservatives in America. Both groups must lead with political moderation, Berkowitz counsels. One example of such moderation was Ronald Reagan, Berkowitz observes, and this explains much of his success. But this sounds odd, surely Reagan stood for something.

Berkowitz’s understanding of moderation, however, is not that of the mealy-mouthed variety, but is found in the application of principles to the politics that public opinion will bear. Moderation may involve, relatively speaking, appearing extreme as one insists on refusing to compromise certain principles. But the substantive point is the bringing to bear of principle within the time and circumstances given to the statesman. Politics, it follows, cannot be reduced to various theoretical commitments like the natural law, free market theories, or autonomistic individualism. And this, I think, most obviously has not been done by many on the Right consistently enough. To do so is to take political representation seriously. Finally, Berkowitz leaves us with the formative role of tradition in a liberal society that liberty and progress must remain in dialogue with or risk dissolution at the hands of the Left, for whom the clock is always behind schedule.

What to Expect When No One is Expecting Jan 12, 2020

Jonathan Last’s book What to Expect When No One is Expecting is the subject of the next Liberty Law Talk. Last, a senior writer for the Weekly Standard, points our attention to below replacement level birth rates evident in countries throughout the world (including America since 2008) and the dismal future it promises if things don’t change. In short, Last compels us to wonder who, exactly, will bring the future? However, Last does not come to cast blame on anyone or a particular philosophy, although he notes that our individualism must think more deeply about the requirements of human flourishing. Moreover, the demographic downturn he documents is obviously not just an American or European problem. Just ask the Singapore government, which has been trying to entice, with little success, greater fertility amongst its citizens using all manner of incentives. Last’s purpose is to get us thinking about what it means when a prosperous society of free persons hesitates to fulfill its crucial role in giving birth to and forming the next generation in sufficient numbers. Last’s fact-laden book is challenging, controversial, and also necessary for us to reflect on as we consider the foundations of a liberal society.

Making the Supreme Court Safe for Democracy: A Conversation with Joshua Hawley Jan 12, 2020

This next conversation is with Joshua Hawley, a former clerk to Chief Justice John G. Roberts, Jr., and an associate professor of law at the University of Missouri, about the arc of power exercised by the Supreme Court since the passage of the 14th Amendment. In one sense, we understand directly what the Antifederalist Brutus once opined about its potentially unlimited powers. The Court, Brutus informed, would be the most dangerous branch because its judges “are independent of the people, of the legislature, and of every power under heaven.” Of course, criticisms of the Court’s activism are now part of our political discourse. Indeed, how could they not be given the Court’s performance in any number of decisions?

But where does a revival of a limited judiciary begin? Less noted amidst talk of judicial methodology and interpretation that fills our discourse on constraining the judiciary is that our written Constitution is rooted in the principle of self-government and is, ultimately, the people’s document to be interpreted by their voices and practices. Its political structural principles of federalism and separation of powers seem to commend a competitive politics that is largely free of substantive judicial intervention. So, how to get there from here? For that, you will need to listen to Hawley discuss several ways a more targeted focus on self-government might challenge the Court’s self-understanding of its expansive powers.

Curbing Campaign Cash Jan 12, 2020

The next Liberty Law Talk is a conversation with Paula Baker about her new book, Curbing Campaign Cash. You might recall former FEC Commissioner Brad Smith’s review of the book in this space. Smith observed that Baker’s book uncovers for the reader the perennial tale of campaign finance legislation and its many untoward consequences that distort a system of fully competitive elections. “Before Super PACs, McCain-Feingold, “soft money,” and the Keating 5; before Watergate, and even before Teapot Dome, there was the Michigan Senate race of 1918. . . . one of the nation’s most contested elections and earliest campaign finance “scandals.”” As Smith also notes, “Unlike the typical political saga, however, Baker presents the story not as a morality tale of honest government corrupted by big money, but rather as a cautionary story about big government regulation of honest money and the political choices of the electorate.” I hope you enjoy this conversation about one of the first attempts by campaign finance rules and the self-interested incumbents who enforce them to restrict basic constitutional freedoms in the name of equalizing politics.

The Constitution and Immigration Jan 12, 2020

This edition of Liberty Law Talk is a conversation with Vincent Cannato, author of American Passage: The History of Ellis Island, about America’s constitutional and policy history regarding immigration. In this podcast, we discuss the recent Supreme Court decision Arizona v. United States that substantially limited the rights of states to set their own immigration policy apart from the federal government. Cannato recounts the history of the authority exercised by the federal and state governments for immigration which diverges substantially from the holding in Arizona. In addition, we discuss at length the evolution of immigration policy from the early nineteenth century to present day. Our evolving immigration policy, to note one of Professor Cannato’s recent musings on the subject, closely tracks our expectations for the role of the federal government.

Becoming Europe Jan 12, 2020

This Liberty Law Talk is a discussion with Samuel Gregg about his most recent book, Becoming Europe: Economic Decline, Culture, and How America Can Avoid a European Future. Recent events in Cyprus, to say nothing of the economic stasis that envelopes much of Europe, highlight America’s need to think deeply about the current trajectory of our fiscal and entitlements policies, among other weighty matters. Gregg’s book, however, is not merely a rehashing of dire spending problems and bankrupting entitlements and the predictably poorer future this promises, but is a discussion of the social and cultural commitments that are required to make economic freedom a reality in America. The erosion of these norms within Europe has made it much easier for the array of dirigiste economic policies pursued by so many nations on that continent. The good news, Gregg informs, is that we aren’t quite Europe. To avoid its fate America must reexamine the foundations of its own economic success and renew its commitment to them.

Additional Law & Liberty links: Theodore Dalrymple’s review of Becoming Europe.

Coolidge! Jan 12, 2020

Amity Shlaes comes to Liberty Law Talk to discuss her new biography, Coolidge, that explores and analyzes the triumph of Calvin Coolidge. Much like the title of Shlaes’ previous bestseller, The Forgotten Man, Coolidge recovers for the reader a president that our country seems to have forgotten. For many, Coolidge had to be left behind. The successes of his fiscal and regulatory policies and the judgments these policies make on America’s New Deal and postwar open-ended spending and regulating tendencies are hard to reconcile. There is also the sober rectitude that Coolidge insisted should guide our lives in a modern commercial republic. The deep pre-commitments of a free society require diligent work, an effort that Coolidge profoundly, even spiritually understood, quite well. Unfortunately, it seems, we have kept at a distance the vital truths that Coolidge lived and governed by.

Coolidge’s life speaks to us in other ways. For the thirtieth president’s life was not an inevitable rise to prominence. It was marked by tragedy in the early deaths of his mother and sister, and also the death of his 16-year old son, Calvin, Jr. in the White House. As Shlaes observes, however, these personal losses did not equal defeat. His life was not “Yes, but.” It is a story of “But yes.”

The achievements of Coolidge’s presidential tenure are staggering. “Under Coolidge the federal debt fell . Under Coolidge, the top income tax rate came down by half, to 25 percent. Under Coolidge, the federal budget was always in surplus. Under Coolidge, unemployment was 5 percent or even 3 percent.” As Shlaes details even further, “When in 1929 the thirtieth president climbed onto a train at Union Station to head back home to Massachusetts after his sixty-seven months in office, the federal government was smaller than when he had become president in 1923.” Why, you may ask, do we not know more of this man, this American leader?

Answering that question is Shlaes’ Coolidge. Listen to this podcast with the author. Then, buy the book.

What is Marriage? Jan 12, 2020

The Supreme Court will soon pronounce upon the constitutionality of California’s Proposition 8, which amended that state’s constitution to prohibit same-sex marriage, and the federal Defense of Marriage Act that was enacted into law in 1996 under then President Bill Clinton. This conversation with Ryan Anderson, co-author with Sherif Girgis and Robert George of the recently published What is Marriage?, engages the philosophical argument that there is a natural form to marriage which has been instantiated by the western legal tradition in various ways. This lively conversation debates the most basic questions on this subject in a serious and respectful manner. Don’t miss it.

Beyond Politics: How to Think about Government Failure Jan 12, 2020

The next Liberty Law Talk is a conversation with Randy Simmons on his recently revised and updated book, Beyond Politics: The Roots of Government Failure. Serious policy analysis frequently begins with the unspoken assumption that government must fill the gaps in the marketplace. Markets are vastly imperfect and require for their proper functioning the precise, i.e., perfecting, commands of the regulatory state. Not content with this narrative’s iron-clad belief that government rules and regulations live and move in rational operation, having their being serving the commonweal 24/7, Simmons provides a comprehensive way to think about the giant suck of political reality. The truth, Simmons tells us, is that markets are rarely corrected by government diktat (what would that mean, anyway?), but are frequently distorted, minimized, if not corrupted by the machinations of public law. Listen and learn from Randy Simmons.

Ratifying the U.S. Constitution Jan 12, 2020

This next edition of Liberty Law Talk is a discussion with John Vile about his new book, The Writing and Ratification of the U.S. Constitution: Practical Virtue in Action. Our discussion, chronologically and philosophically, retraces the dramatic story of the Founders’ Constitution. In four parts, we talk about the failing of the Articles of Confederation, the need to reground republican government on constraints and diffusions of power given the governing weaknesses of many state governments, arguments and contests among major and lesser known figures at the Philadelphia Convention, and the often overlooked state ratifying conventions where the Constitution had to prove itself to delegates highly critical of the new powers it assumed.

Unlearning Liberty: Campus Censorship and the End of American Debate Jan 12, 2020

The next Liberty Law Talk is a conversation with Greg Lukianoff, attorney and president of the Foundation for Individual Rights (FIRE), about his new book, Unlearning Liberty: Campus Censorship and the End of American Debate. For those who have followed the pathetic censorship episodes on campus the past few decades, you might think that many of these battles had been won. Lukianoff, however, has the proof that free speech, freedom of religion, and freedom of association remain under siege on campus in myriad forms. Unpopular opinions, usually attributed to those held by conservative students and religious students, are frequently targeted by administrators laboring under diversity and no intolerance mandates. To put it mildly, this type of heavy-handedness proceeds apace. Political comfort for certain students is privileged over the search for different forms of meaning and truth that other students might be articulating. Ultimately, Lukianoff wisely argues that the inability to argue, debate, and take ideas seriously on many campuses makes students dumber and indifferent, with consequences for public discourse and civil society that stretch beyond college years.

A Nation of Takers: A Discussion with Nicholas Eberstadt Jan 12, 2020

Nicholas Eberstadt comes to Liberty Law Talk this month to discuss his significant new book, A Nation of Takers: America’s Entitlement Epidemic. Our conversation focuses on the staggering data of our transfer payment state and how it is inevitably strangling the federal government’s operations (by 2010 entitlement spending counted for almost 2/3 of federal spending). We also discuss how we arrived at dependency, the consequences for limited government if it isn’t rectified, and some possible ways of redress. Eberstadt’s book is a sobering account of our fiscal situation and should be read carefully by all.

Related items: David Armor reviews A Nation of Takers.

Failing Law Schools Jan 12, 2020

The next Liberty Law Talk is with Brian Tamanaha on his important book, Failing Law Schools. This discussion focuses on Tamanaha’s claim that legal education is the victim of regulatory capture by the ABA Legal Education Committee. This has led to the imposition of a one-size model for legal education, resulting in a product that is good for professors and their salaries and for administrators, but laden with problems (debt and unemployment) for many students.

Additional items at Law and Liberty:

Andy Morriss reviews Failing Law Schools in the essay, “Two Cheers for Failing Law Schools“

Lincoln's Code of War Jan 12, 2020

The next edition of Liberty Law Talk is with professor and author John Fabian Witt on the subject of his new book Lincoln’s Code: The Laws of War in American History. Recently named by the New York Times to its 100 Notable Books’ List for 2012, Witt’s account of the laws of war in American history illustrates the tensions and conflicts that have followed from America’s intention since the Declaration of Independence to fight under the existing laws of war, appealing to them for protection, while also using them to advance American interests. Witt’s account moves through the War for Independence, The War of 1812, the Indian Wars, and the Mexican-American War before arriving at the centerpiece of the book, Lincoln’s Code.

The story behind Lincoln’s Code, the laws of war promulgated by Lincoln in 1863 (General Order No. 100) and followed by the Union Army, is fascinating and, Witt argues, was tied to the Emancipation Proclamation and the need to utilize the newly freed slaves on behalf of the Union effort. The code’s drafter, Francis Lieber, was a Prussian who fought against Napoleon at the Battle of Waterloo, came to America, taught at South Carolina College, and then moved to New York to teach at Columbia College’s nascent law school. Fascinated by war, Lieber’s code of war was central to the war effort of the Federal army. Readers and listeners can obviously judge for themselves if that was a good thing or a bad thing. General William Tecumseh Sherman’s famous March to the Sea does not appear to run afoul of the code. Lieber’s code was widely adopted by European nations in the late 19th century, and subsequently formed the basis for the multilateral treaties on the conduct of war-making in the 20th century.

The Rise and Rise of Independent Federal Agencies Jan 12, 2020

This next edition of Liberty Law Talk is a discussion with Adam White, a lawyer in Washington with Boyden Gray & Associates, about the increasing policy significance of independent agencies. White discusses how these agencies have assumed increasing power for implementing policy items that are politically unpalatable but are favored by key segments of a president’s political coalition. Analyzed by White in this podcast are the NLRB-Boeing episode, the derailing of the Yucca Mountain nuclear repository project, and the avalanche of independent agency power delegated by the Dodd-Frank Act.

Understanding Alexander Hamilton Jan 12, 2020

The next episode of Liberty Law Talk is a discussion with Michael Federici about his new book, The Political Philosophy of Alexander Hamilton. Federici attempts to get beyond the mountains of secondary material on Hamilton and the regnant opinions that he was a monarchist, an elitist, or a proto-nationalist thinker. Federici’s goal, and the point of this podcast, is to understand this American founder as he understood himself and his purposes within the American constitutional realm. Our conversation focuses on Hamilton’s overall political philosophy, but also tries to understand his Christian anthropology, his constitutionalism, political economy, and foreign policy.

Defending the Electoral College Jan 12, 2020

This next edition of Liberty Law Talk is a conversation with Dr. Gary Gregg, author of Securing Democracy: Why We Have an Electoral College, on the foundations of the Electoral College, its connection with the Founders’ concept of deliberative democracy and the formation of reasonable majorities, and the federalism and separation of powers purposes it serves in our presidential system.

Additional Law and Liberty Resources:

Derek Muller reviews Enlightened Democracy: The Case for the Electoral College.

Czars in America Dec 17, 2020

This next edition of Liberty Law Talk is a conversation with Mitchel Sollenberger and Mark Rozell on the use of ‘czars’ by American Presidents. Sollenberger and Rozell are authors of The President’s Czars: Undermining Congress and the Constitution. The conversation places this twentieth century presidential phenomenon in constitutional, political, and historical context. We focus on exactly what constitutes and defines a public official being labeled a czar. Of course, most importantly is the constitutional legerdemain engaged in by presidents who create and appoint czars, outside of the senate confirmation process, to exercise power in a manner that is accountable to the president alone. Sollenberger and Rozell also provide an interesting historical perspective on the use of czars by Woodrow Wilson (the first president to create a czar), Franklin D. Roosevelt, Richard Nixon, and, of course, George W. Bush and Barack Obama, where the practice has flourished like never before.

The Crisis of Modern Liberalism: A Conversation with Charles Kesler Jan 12, 2020

The next edition of Liberty Law Talk is a conversation with Charles Kesler on his new book, I am the Change: Barack Obama and the Crisis of Liberalism. Professor Kesler’s book argues that the intellectual world of modern liberalism is built on philosophical contradictions about the nature of liberty and the requirements of law and government to protect it. A more basic flaw is its continuing inability to limit itself when it comes to state power and welfare entitlements. This “never enough” mentality translates into the overwhelming and barely governable size of the modern democratic state. Our current President, Barack Obama, embodies these contradictions and tendencies and, as such, richly illustrates modern liberalism’s contemporary understanding of law and power.

Additional Law and Liberty links:

Understanding the Best Book Ever Written About American Democracy Jan 12, 2020

This new edition of Liberty Law Talk is a conversation with Daniel J. Mahoney of Assumption College regarding Alexis de Tocqueville’s counsel in Democracy in America on how Americans can best combat an unbound egalitarianism and the prospect of soft-despotism. Tocqueville’s writings have been significantly featured over the past few years given his warnings and sense of the dangers of overly centralized government, so this conversation with a noted Tocqueville scholar will add greater depth to our understanding of what the author of the best book ever written about democracy can teach us regarding the challenges and opportunities that America now faces.

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