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American Heresies and the Betrayal of the National Interest: A Conversation with Walter McDougall Aug 20, 2021

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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.

How to be a Conservative Aug 16, 2021

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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

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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…

Full show notes at the publisher

Restless Amidst Prosperity and Freedom Jul 15, 2021

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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 gen…

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Led by Truth, Inspired by Beauty Jun 30, 2021

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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 a…

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Why the Framers' Intentions Matter Jun 14, 2021

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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…

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Liberalism and the Family May 14, 2021

Show notes

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 t…

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Robert Nisbet, Community Organizer May 03, 2021

Show notes

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…

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Prospects for Inflation Apr 15, 2021

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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…

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How the Framers Made the Presidency Mar 31, 2021

Show notes

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…

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