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    Philosophy

    The Law & Liberty Podcast

    Law & Liberty contributing editor James Patterson interviews prominent authors and thinkers. A production of Liberty Fund, Inc.

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    Latest Episodes:
    The Founders' Senate Nov 11, 2020
    Show notes

    Richard Reinsch (00:18): Hello, and welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Professor Todd Zywicki, welcoming him back to Liberty Law Talk, a frequent guest, to discuss recent calls for reforms to the Senate in particular and to the Congress and what might restore that body to more vigor and greater political-institutional health. Todd Zywicki, a frequent guest on Liberty Law Talk, when last he was on we discussed the cartel of higher education in conjunction with a book Todd had just written with Neal McCluskey. Todd is an expert in bankruptcy law and consumer credit, among other specialties. He’s also an economist, he teaches, I mentioned at the Scalia Law School. And he’s also a Senior Fellow at the Cato Institute. Todd, you are also a star, I noted, at the Social Science Research Network. You are in the top 10% of most downloaded scholars on the Social Science Research Network, so congratulations. Todd Zywicki (01:17): Thank you. Richard Reinsch (01:18): Nice to have your work sought after. I was thinking about, Ben Sasse had this op-ed “Make The Senate Great Again,” that was in The Wall Street Journal earlier in September. And he listed a number of reforms to make the Senate work better. Sasse himself a scholar, PhD in history, I think from Yale. His first speech in the Senate was about the sort of underwhelming nature of Congress in its current operations. And he listed a number of reforms, some of which I thought were ho-hum, some seemed interesting. One, take cameras out of the Senate, out of committee hearings, abolish standing committees, I would actually argue the committee should be strengthened if you want to restore the vigor of the body. Pack the floor, meaning require attendance at debates so there’s a full house. Live together in dorms, and also sunset all agencies and departments. Give them a year left to operate and force the Senate to begin making laws again. So he understands the administrative branch dynamic there. Then also, and you’ve written on this, several law review pieces and debates and shorter pieces, “repeal the 17th Amendment” would be key. And he makes the point that it would allow the states to reenter national debate as states again. And that would sort of diffuse maybe the ongoing just ideology that percolates through the Senate. So what do you make of any of those proposals and then we’ll also focus on the 17th Amendment? Todd Zywicki (02:47): Well, more generally, all of them raise the same question, Richard, which is one of the things that Sasse is basically [inaudible 00:02:54] at with a lot of these things is that the process of electioneering has come to dominate the process of governing with respect to the Senate. And the great irony of that is that the original Senate was elected by state legislatures, and that was changed in 1913 with the 17th Amendment that moved to direct election of Senators. And I know we’re going to talk about this in detail, but in many ways what Sasse in coming back to rests on that foundation which is that the framers clearly had a design in mind for the Senate, which it would be fundamentally different from the House. They hoped, and thought, it would be a body that would not be driven by electioneering. It would be driven by basically governing. Which is that the House was seen as the place where politicians would posture and do the things that politicians do in order to get votes and scramble for votes. But that the Senate, due to its longer term and the manner in which is was elected, would be different. And a lot of these things he talks about, like cameras in the room, the way in which the committee system is used to basically deliver benefits to special interests, all those sorts of things, in many ways are by-product of that same fundamental dynamic which is the adoption of direct election of Senators by the people in partisan elections is fundamentally incompatible, fundamentally contradicts, the idea that the framers had in mind for the Senate. And I think, in many ways, that’s what all these things are is a manifestation of that problem. And it’s not clear… We’ll talk about sort of what went awry and that sort of thing, but I think he’s right with a lot of that. And in many ways he’s trying to treat the symptoms of that and not just the causes. Richard Reinsch (04:51): Yeah. He also calls for extending the term to twelve years from six years, and prohibiting any political fund raising while the Senate is in session. So I think that fits your analysis, more treating symptoms. The thinking here, too, it seems to me that a fundamental problem as well, and James Buckley has a book on this, that he wants to amend the Constitution to prohibit the Congress from being able to just make sort of general grants to states. That it would have to be constitutionally tied. Appropriations would have to be a part of the delegated powers. And so it seems like he’s trying to limit, effectively, what they could do, another way of going at this. Thinking about the 17th Amendment, so you mentioned 1913. It was ratified, it provided for direct election of Senators. What’s the significance of that. I mean many people I think would say… Obviously there’s a democratic point there, but why would you argue that that remade the senatorial body? Todd Zywicki (05:58): Well, 1913 is, in many ways, the pivotal moment in American Constitutional history, in sort of the dawning of the Progressive Era and everything we’ve seen since. Which is, two things happened in 1913, which was not just the ratification of the 17th Amendment, but also the ratification of the 16th Amendment, providing for the income tax. So in many ways what we saw with those two back to back was that the 16th Amendment unleashed the taxing power of the government. And the 17th Amendment unleashed the spending power of the government and, in particular, the ability of the national government to easily provide to take those new funds and redistribute them to special interest groups in particular. And so if you look at it from that lens, essentially at that point the New Deal, which comes along obviously 25 or so years later, as kind of a mop-up operation, once you’ve basically set that structure in place for a more robust national government in terms of taxing and spending power. one thing that’s often forgotten when we talk about the original Senate, was the idea of bicameralism. And the idea of having two bodies composed by different groups of constituents was designed to limit the power of interest groups. We can go, and I think we will go into detail about the specific impact of the 17th Amendment, but what I think is significant and relates to Buckley’s comments that you noted, was that when it comes to Federalism specifically, the framers saw the election of senators by state legislature to essentially both be necessary and sufficient condition for preserving constitutional federalism. And the magic expression here is Federalist 51, which is where everything comes back to Federalist 51. Which is Madison’s view that in order to preserve the Constitution, the interests of the man must be aligned with the Constitutional rights of the place. The interests of the man must be aligned with the Constitutional rights of the place. Which is to say that if you want federalism to be preserved as a Constitutional value, the view of the framers was you have to make the self interest, the political self interest of the representative be aligned with promoting that Constitutional value. What Senators care about is being Senators. And being a politician is a competitive business. And so, what you have to do is basically make sure that if you’re a Senator that you’re responding to your constituents. And if your constituents are state legislatures and state legislators, that’s a very different constituency from the general public. And that’s what the framers understood and that’s what the framers were trying to do. Which, to some extent, was done imperfectly, because, as we all know, some kind of mechanisms of direct election arose during the nineteenth century. But I still think it had an impact, even with some of the mechanisms of direct election that arose. I think, when I look at the historical record, it looked like a lot of these things we talk about, unfunded mandates and a lot of the real incursions of the federal government on the states, just don’t seem to be there. And I don’t think they would be there to the same extent even if the prior 17th Amendment Senate was an imperfect vessel for preserving federalism. Richard Reinsch (09:17): Auxiliary precautions in Federalist 51. That’s a phrase that I think sticks with me as I think about problems in our current federal government. So the House, obviously, two years directly tied to the people. The Senate would have been tied, was tied, to state legislatures appointing the two senators to represent their state. And the auxiliary precaution meaning two different bodies elect those two branches. And that being crucial because it’s not just a majoritarian, two bodies representing majoritarian interests. Could you talk more about that, what was the significance there? Todd Zywicki (10:00): Yeah. And the framers, obviously it was kind of a genius structure, right? Which is, two houses elected by different constituencies for different terms. We also have a president who’s going to be indirectly elected. That didn’t last very long. We still have the vestige of the electoral college, but we do not actually have electors. And we had judges who would basically be appointed for life, right? And the idea was, was this machine in which these different hubs selecting the members of the federal government by different mechanisms would bring certain incentives to what they were doing in that the system as a whole would be more than just the individual pieces. If you look at the Senate specifically, there were two basic goals here. Which the first was kind of recreate a House of Lords. Which is, as I mentioned, the idea was the House would be the place in which people did politics, retail politics. The qualifications were younger, the terms were shorter, and they expected that there would be direct accountability on the House. The Senate was obviously modeled, to some extent, after the House of Lords in Britain. And the idea was that the Senate would be the place for people who are accomplished in life. Qualifications were that they had to be older, 30 rather than 25. And the idea would be that very distinguished people would be selected to serve in the Senate. Not only career politicians, is what’s ended up happening, but accomplished lawyers, business people, military heroes, people of stature, who were turned off by the idea of House and all the electioneering in the House. And they would be chosen for character, judgment, and prudence, and that sort of thing. Which is I think also one of the reasons why they gave to the Senate special responsibilities like with respect to treaties and the like that they didn’t give to the House. That idea of the Senate as a House of Lords was, to some extent, true. Because it did allow people like Daniel Webster to move in and out of the government. A lot of those people we know during the 19th century would kind of rotate in and out of the government, kind of returning when they were needed. Whereas one of the big things that’s happened is now the Senate is basically just full of career politicians. Which has changed the dynamics, I think, of the Senate itself. The second important thing about the Senate that you allude to is the structural piece. Which is, it’s supposed to be two things. One, preserve federalism, as we talked about a little bit. But the second one is to bring this notion of bicameralism that you mentioned. And bicameralism is the idea of having two houses that are designed to pass laws in different way. So as to, as the framers clearly understood, mitigate the power of faction, what we would call special interests today. And the idea is that through bicameralism interest groups would have more difficulty influencing the government, and the public interest would prevail by having two bodies selected by different groups. And that’s one thing that’s often forgotten when we talk about the original Senate, was the idea of bicameralism. And the idea of having two bodies composed by different groups of constituents was designed to limit the power of interest groups. And now, when you make the two bodies more or less identical, it eliminates some of those brakes and some of those checks on interest group factionalism as Madison called it. Richard Reinsch (13:22): Now I know, just thinking through all this right now, it’s been a part of center right conservative thinking in this country. And it’s now at a fever pitch with anger at elites or distrust of elites. Thinking about this system where state legislatures would appoint people to represent their state in the original design, couldn’t that also lead, though, to a system of elites bargaining with elites and distributing spoils? As opposed to say a more popular check that we currently have? I mean, I guess, I’m sort of thinking how would it work now that the ideology is really switched? Of course, progressive thinking has switched where states now very much want to be a part of receiving rents from the federal government. I think what, I would say most states, 20% of their… What they receive from the federal government probably equals 20% of their annual budget, if not more. What do you think about that? Todd Zywicki (14:16): That’s exactly the criticism that’s been expressed. And it’s not just from conservatives now. That was exactly the argument that was made beginning in the late 19th century when people started beating the drums for direct election, the muckraking newspapers, the populist newspapers, deeming the Senate of the late 19th century and early 20th century, the millionaire’s club. And, of course, if you go back and read the Federalist Papers the Senate was one of the things that the anti-Federalist’s found most obnoxious for precisely this reason. Was that what the framers saw as a feature, this sort of House of Lords, the anti-Federalists saw as a bug, right? And they genuinely were concerned about this notion that the long terms and lack of political accountability would make the Senate into this elite group. But again, if we go back to Federalist 51, what does Madison say is the challenge? If angels were to govern men, no government would be necessary. But if we’ve got men running the government we have this trade off. In the first place the government must be powerful enough to control the governed. And in second place it must be obliged to control itself. Which is, there’s this tension inherent in our Constitution between limiting the power of faction and limiting the power of democracy. Which is the point about the government being able to control the governed, which is why they thought in terms of an indirect elected president, an indirect elected Senate for long terms, and, of course, an independent judiciary that would be protected from the accountability of the democratic process and all that. But at the same time, the concern about elitism, which is to say that if you create independence to resist factionalism you run the risk that the governors become the faction unto themselves and basically end up running the government for themselves. And, of course, the exact same criticism you hear about the Senate is what conservatives say about the judiciary. Which is that the unaccountable, unelected judiciary basically imposes their own views on society without any direct accountability. The framers answer was that we want to have all of that, right? That’s why they thought of all of those four groups, four different bodies, interacting in some way that would bring different perspectives and that sort…

    Full show notes at the publisher

    It's ACB's Seat Now Oct 31, 2020
    Show notes

    Richard Reinsch (00:04): Welcome to Liberty Law Talk I’m Richard Reinsch, today we’re talking with John McGinnis, about the addition of Amy Coney Barrett to the United States Supreme Court, and also the recently commenced Supreme Court term. We’ll discuss some of those cases and what else that we think Justice Barrett might contribute there. John McGinnis, many of you will know, is a long-time contributor to Law & Liberty. So we’re glad to have him on the program. He’s the George C. Dix Professor in Constitutional Law at Northwestern University. He’s the author of numerous books and essays and law review papers, including his most recent book was a co-authored one with Mike Rappaport, Originalism and the Good Constitution. He’s also the author of Accelerating Democracy, that was published by Princeton University Press. He is one of our most significant legal thinkers in America, and one of our leading constitutional originalists, John McGinnis, we’re glad to have you on the program today. John McGinnis (01:19): I’m delighted to be here at an interesting time for the court. Richard Reinsch (01:22): Interesting time, so last night October 26, Amy Coney Barrett, nomination received 52 votes. She was sworn in by Justice Clarence Thomas, which I thought was just a wonderful sight. Amy Coney Barrett, talk about her constitutional philosophy much has been said by her and by others that she is an originalist. What kind of an originalist is she, John? John McGinnis (01:48): First of all, I think it’s quite clear. She says her philosophy is the philosophy of Justice Scalia. So I think that she’s going to be an original public meaning originalist rather than original intent originalist. Beyond that I think it’s a little hard to say because while she’s been a prolific scholar, she’s not been a constitutional theorist. And the one thing we do know about her is I think she is unlikely to be a strong, what I would call libertarian originalist. Someone who sees that there is a presumption of liberty like Randy Barnett in the constitution, and that should inform her take on perhaps the original meaning. And what’s called the construction zone would be claimed by some originalists, that some parts of the constitution are determined and for people like Randy Barnett, that’s filled in to some extent with respect to a presumption of liberty. And there I think we do know she gave a somewhat unfavorable review to Randy Barnett’s book, on trashing what I’ll call libertarian take on originalism. So I think that’s pretty clear that she’s not of that kind. I wouldn’t necessarily think she’s way on the other side, someone who thinks like early originalists, that democracy is the key aspect of the constitution. And therefore we should engage in a lot of deference to the legislative branches, even when there are rights set out in the constitution. I don’t think she’s ever suggested quite that. And so I tend to think she’s going to read the constitution without a presumption and favor of liberty or without a presumption and favor of legislative actions. Somewhere like straight down the middle originalist in that respect. But there are many questions I don’t think are entirely clear. And it’s not suprising that they’re not entirely clear, when she is not an originalist theorist and she’s going to get on the bench, and have to grapple with cases and their intersection with theory. So one area, I think we’re going to see a lot of discussion of her and others on the court, it’s already begun is in relation to originalism and stare decisis and where she’s going to come out exactly there, I’m not sure. She has written an article about originalism and stare decisis, in which she sort of has endorsed the Scalia as opposed to the Thomas approach. But while endorsing it in sort of broad terms, she suggested the kind of tightening of it. And so I tend to think it will be somewhere between Scalia and Thomas. Thomas is recalled as someone who really largely rejects stare decisis in Constitutional Law, except when he can’t say the decision is wrong. Scalia, seems to accept a lot of decisions that he thought were wrong because there was just too much water under the bridge to overrule them. Where she’s going to come down between those two polarities as it were within the originalist camp, I’m just not entirely sure. I don’t think I’m quite sure she’s not entirely sure it’s going to be forged in discussions with her colleagues, that she correctly stated being a judge is different from being a professor, more to be informed by academic theories. She’s obviously going to take account of what her colleagues say and with the context of the cases that come before her. Richard Reinsch (05:22): That law review article, if I recall she listed Brown v. Board of Education as a super precedent, not an earth shattering move there. A lot of people would say that, I think everyone would say that. She did not include Roe v. Wade or Planned Parenthood v. Casey in that piece as a super precedent itself. John McGinnis (05:39): Super precedent as she was at pain to explain in the hearing, she was really using as a kind of academic term of art, but one of the best actually parts of the hearing is where Amy Klobuchar, quizzed her why isn’t Roe a super precedent, but she said, well, of course you have to really ask whether it’s a super precedent or not, really isn’t. And that’s sort of the definition, that one thing that really no one wants to overturn. And of course that’s not true of Roe that’s not true of Citizens United, it’s not true of a whole range of cases that are important precedents of the court, but that serious scholars and serious legislators thinks should be overturned. Richard Reinsch (06:27): Now, you mentioned she’s not and she’s indicated this in her writings she’s not inclined towards the judicial engagement camp of originalism. So with that being noted, do we have clues in her writings of how she will engage the questions of the administrative state that have really come to the fore? John McGinnis (06:47): I don’t think we have many clues in the writing. First of all, unlike some academics she’s really not an administrative law academic. I do think the best clue that we have that she’s not going to be a judicial deference is from her action on the Seventh Circuit, where in a Second Amendment case, she says that, even the non-violent felons should be able to have access to guns where she could have deferred to the legislature. And there’s some nuanced language in Heller itself that sort of gives the blanket categorical blessing to permitting States, to exclude felons from the right to have guns. Where she pointed out that didn’t make a lot of sense when a narrow kind of compelling interest path, or even intermediate path when the felon went violent, because of someone committed some sort of felony under the securities law that gives no reason really to believe that they’re likely to be violent with or misuse a gun. So I think that’s some indication that she’s not of the judicial deference school. I think with respect to the administrative state, we have very little to go on, except the general idea, which is that most originalists think that at least at its outer bounds, the administrative state seems to bump up against the core idea of the separation of power. It’s the legislature who should be making the rules, not the executive. So I’d be surprised if she were to not take that view. And that’s important because as you may know, there are even five votes, including Chief Justice Roberts on the court, express concern about the breadth of the court’s previous permissions for Congress to delegate authority to the administrative state. And therefore in some sense, aggregate their own responsibility to make clear, at least the broad outlines of the laws. Richard Reinsch (08:55): There was a case she wrote on recently in the Seventh Circuit, that involved a police officer and qualified immunity, where a police officer, I think had falsified something about the defendant, some official document. Maybe it had been the warrant itself, and she did not give this police officer qualified immunity, she ruled against it. So no deference there. Now, the facts there, which I can’t exactly recall were quite shocking. So there’s that, also it seems though one question comes to mind. If she said Scalia is sort of her mentor, she clerked for Scalia, and this is just one way of thinking. Did he shape her thinking about the administrative state? He was notably open to its powers until later in his career, towards the end of his career, where he seemed to have realized maybe this had gone too far. John McGinnis (09:49): Yes, that’s interesting because let’s understand that Scalia, came up I think when there was still a lot of sense among conservative legal scholars, that originalism really was a kind of way of reigning in the excesses of the Warren Court. Which seemed to even in administrative law seem to reach out, to restrict the political branches. And so I think that’s the view from which Scalia comes. That’s really not the thinking now. And so Scalia, I think as you correctly point out with himself changing. So I would not think that Amy Coney Barrett is likely to be the early Scalia in this respect, more likely to be the later Scalia moreover. That’s one area where I think there’s some substantial unity, I would say, including with between Chief Justice Roberts, who in some cases was if one talks about being more skeptical of the administrative state as the right to being ideologically on the right, he was ideologically right of Scalia. For instance, there’s a case in which Scalia upholds under Chevron deference, the ability of a agency to interpret ambiguities in their own jurisdiction in their own favor. And Roberts says, well, that actually putting the fox in charge of the hen house. That’s too far for Chevron deference. So this is an area I think of substantial unity. I would be very surprised if Amy Coney Barrett were not to fall in with the rest, this is not an area I think she’s likely to be a leader on. She’s not someone who is an administrative law scholar, she’s not unlike many of the other justices, like three of the other justices on the conservative side, a DC Circuit alumnus, where of course their largest diet is administrative law. But I would think she’ll at least go along with where I see the center of gravity is now on the court. Richard Reinsch (11:52): You’ve mention his name several times, what does this appointment mean for Chief Justice John Roberts, and in particular, the strategy he seems to have been employing recently he doesn’t want the court to be seen as totally aligned with the Trump administration or with conservatism. He’s made some interesting moves. What does she pose to that strategy? John McGinnis (12:15): Yes. Well, it’s always hard to understand the motivations of justices, but one plausible take is that Roberts is a Chief Justice and the Chief Justices have argued before, really I think has different motivations from other justices. It’s his court, everyone calls it the Roberts Court. And so he’s very concerned about… Chief Justices I think are always concerned about the standing of the court. One actual natural experiment we have in that respect is Rehnquist was much more conservative before he became Chief Justice. So and obviously I don’t think his views changed. It was the seat that changed. And so I think one way of understanding Chief Justice Roberts, is he’s very concerned with what political scientists call the diffuse support for the court. And that may in close cases at least make him interested in distributing victories, particularly in a court that now is partisanly aligned and with all the liberals are Democrats and all the conservatives are Republicans. And so I think that has been an element of his strategy as it were a kind of distribution of victories. Moreover, he is an incrementalist, and so some of his decisions while giving victories to the liberal side, I think the example of the abortion case last term, might not in the long run do that. So he gives a sort of little Easter eggs and even in his opinions as it were for the liberal side. And so that’s just kind of incrementalist approach to the law. So how will it change? Well, I think he an issue that he’s, I think he’s been the most powerful Chief Justice for decades. Because not only was he, the chief after Kavanaugh was confirmed, he was the median justice. That meant that he genuinely, I think, was in most cases in the middle and therefore the way he swung he could swing the court, and that gave him enormous power. And in addition, he has the power when he is in the majority of assigning the opinions. And so that allows him to choose the writer, including himself, which he took in many of the important cases, to write the opinion which sets the trajectory for the law. So suddenly he’s in a different position. He’s no longer the median justice. When you talk about who exactly the median is, I don’t think it’s entirely clear, but it’s certainly not him anymore. And that puts him in a dilemma, because he could still vote with the liberals, but that doesn’t give a victory, we still have a conservative victory. Worse still when he’s not in the majority, Thomas who’s the senior associate justice assigned the opinion including to himself. And that means we might get, since I think opinion writers have some political scientists say, some ability to write the opinion. If some discretion as it were, can move the trajectory of the law in a rightward direction. So he may oddly enough move to the right, would be my prediction because, by moving to the right, he at least retains the opinion and assignment function, and can assign the opinion to himself or to the least conservative member of the majority. So oddly enough, Barrett’s confirmation, I think is going to make Robert’s vote more to the right. And when he doesn’t vote to the right, it will make the opinions more to the right because Thomas will assign them. So that’s a hidden benefit for conservatives and for originalists. Because Thomas, of course is out of a subset, I’m always fighting against calling a justice as liberal or conservative. There are methodological differences and Justice Thomas is the most consistent originalists on the court. So that’s going to create a more originalist court because of Justice Thomas, his greater power to assign opinions. Richard Reinsch (16:16): So, Amy Coney Barrett’s position on the court will act in many ways to constrain Justice Robert’s past behavior as he navigates the terrain in the future. John McGinnis (16:28): Yes. It will constrain him, but I mean, as a rational actor, he’ll act in different ways, the constraints will be different. He’s differently constrained in the sense that he felt more constrained by the politics of the country, now he’s constrained as it were sort of by the jurisprudential positions of his colleagues. And so we have to take that into account. Richard Reinsch (16:51): You’ve written pieces on Law & Liberty, and you’ve just mentioned the idea of the median justice on the court, with Barrett’s addition, who do you think is the median justice? John McGinnis (17:01): I don’t think it’s clear yet. I think there are three candidates, I think the most and I’ll talk about them in the descending order of likelihood. I know the most likely is Kavanaugh, because I think he’s less committed as an originalist than Gorsuch. Now, of course, that doesn’t mean that even if that’s the case, that in every case there’ll be the median justice, we saw of course, Gorsuch in the Title VII Case, write the opinion for and regard as the liberal side of the court and Kavanaugh, was in dissent. I think we’re likely to see a situation more like the world where we saw when Kennedy and O’Connor were on the court. Where Kennedy tended to be the median…

    Full show notes at the publisher

    How the West Was Lost Oct 15, 2020
    Show notes

    Richard Reinsch: (00:04)Today we’re talking with Stanley Kurtz, about a new book he has authored called The Lost History of Western Civilization. Stanley Kurtz is senior fellow at the Ethics and Public Policy Center. He’s a well known commentator on education, higher education, urban suburban policies. He’s also a student of the American left. He’s authored two books on Barack Obama, Radical-in-Chief, and Spreading the Wealth: How Obama Is Robbing the Suburbs to Pay for the Cities. We’re glad to have him on the program today to discuss something that seems evident to us now, particularly over the past couple of months, this lost history of Western civilization. Stanley, welcome, and what’s going on in this book? Stanley Kurtz: (01:09)Well, Richard, thanks so much for having me. And yes, I put out a book called The Lost History of Western Civilization. It came out in January. It’s a little bit unconventional, it’s actually available as a free downloadable PDF from the National Association of Scholars. It’s sort of a book-length report for the National Association of Scholars, so readers can actually get it just by clicking on the free PDF. And I put it out in January, and the book has a couple of themes, but one turns out to be surprisingly relevant to the turmoil the country is going through now. The first half of the book largely focuses on the destruction of the academic tradition of teaching Western civilization. And some of the intellectual critiques that were used to justify pushing Western civilization required courses aside in our colleges and universities. For a long time, if you went to college, you likely took a course on Western civilization, and of course on American history, by the way. Those were very often required. And that was all pushed aside amidst great national controversy around 1987 and 1988. And the controversy was focused on Stanford University, there was a famous or infamous demonstration chant by the student protesters, “Hey, hey, ho, ho. Western culture’s got to go.” And once that chant was publicized, it really galvanized the national controversy. And one thing I do in the book is to dive into the argument which was probably most important for America’s scholars regarding this conflict. It wasn’t nearly as well known to the general public, but scholars, what are called deconstructionist historians and academics who were receptive to this skeptical form of postmodernism that we call deconstruction of history. Those sorts of historians argued that the very idea of Western civilization was a kind of bogus, late invention, rather than Western civilization being a great long-standing, continuous cultural tradition coming down to us, from the Athens or Pericles, and from the biblical period, running through Ancient Greece and Rome and then the medieval era, and on into the enlightenment and modernity. These deconstructionist historians suggested that instead, the very idea of Western civilization was a kind of propaganda device, an invention created during the First World War to essentially hoodwink young American soldiers into thinking that they shared enough with Europe to make it worth their while to put their lives on the line in the trenches of the First World War. So this is a great example of what we mean by deconstruction of skeptical history. And then in the second half of the book, I somehow segue from all that into a reflection on the ways in which this dispute over Western civ, and which gave rise to what came to be called political correctness and multiculturalism actually set the template for our politics today and to the constant accusations of racism and bigotry that we see today. Somehow these things are in fact linked. So that’s broadly speaking what the book tries to do. Richard Reinsch: (05:06)A question just apart from the ideas. Why Stanford University? Why was it ground zero for this attempt to remove Western civilization courses from higher education in America? Stanley Kurtz: (05:17)Well, that’s a great question, and the likely reason is that the demographics of Stanford in 1987 and 1988 were somewhat different from the demographics of colleges in most of the rest of the country. Stanford being in California had a relatively large percentage of minorities of various sorts, there were South Asian, East Asians, there were blacks, there were Hispanics in fairly large percentages. And these groups allied with strongly left leaning white students to form what they called a rainbow coalition. And they were taking their lead from Jesse Jackson presidential campaigns at the time. They were somewhat quixotic presidential campaigns, but they were a foreshadowing of what came later in the Obama years. They were a foreshadowing of we what we think of as campus intersectionality. And this was the coalition that chanted, “Hey, hey, ho, ho Western culture has got to go”, on a day when Jesse Jackson was actually visiting the school to help rally students in support of what would become his second presidential campaign in 1988. So Stanford in a way prefigured the rising diverse population that we see in our colleges and universities, and the ideology carried by that group. Richard Reinsch: (06:54)Thinking about Stanford at that time as well, specifically, it seems to my mind, what objections would you raise to learning about Western civilization? And you talk a lot about a certain scholar making this argument that it was put together during World War I to give the soldiers a fighting faith, to give the citizens a fighting faith, etcetera, something like that. But even then I thought, “Okay, maybe that’s the case.” You prove conclusively that it was not the case. But even if we assume that this person is right, one should still learn about aspects of your civilization, the fundamental ideas and history behind your civilization. Why would you not want to, and what were the arguments that they made? Stanley Kurtz: (07:43)Well, that is a really very interesting issue. And one of the things that I argue in the book is that the opponents gave an argument to the effect that Western civilization and the great books that belong to it are racist, that the study of it is racist. It’s racist in the sense that the West was a colonial power that oppressed people of color across the world. It’s racist in the sense that by focusing on so many authors who are “famously dead white males,” it’s racist. But what I argued in the book was that that wasn’t entirely the full truth of the objection. I think the real reason for the objection to Western Civ was that it was powerful that it did teach us about ourselves, that it was a popular course, that students loved the great books. Because whether they agree with a given great book, author or not, the great books as a whole brought students into confrontation with the fundamental questions they would be facing in life, philosophical questions, questions about what they wanted to devote their lives to. And these courses were extremely popular. They were in fact the most popular courses in the school. Now, if you have a very, very popular course that is all about Western civilization, and if students there feel as though that is not really their heritage, they’re coming from outside, from Asia, or as far as I’m concerned, a black American is part of Western civilization and has every legitimate reason to be proud of that. But many black students in Stanford at the time felt as though they were identifying with Africa and their African heritage. So if you don’t feel as though you’re part of the Western tradition in the first place, and the Western tradition turns out to be tremendously popular and appealing, you actually experience that as an affront. Richard Reinsch: (09:53)This is at some level, and by the way, and we were talking about this before the call. I took a great books seminar on Western civilization. I have a very distinct memory of the last day of class of the students in unison, applauding. The last day, the professor, I think, in recognition of how excellent the course had been, and how much we had all learned. Things that we had no clue of before. But that was my freshman year, it was the first time I had read T.S. Eliot. So I think that’s exactly right on and what those courses were able to do and are able to do, where they’re still taught, which makes what happens in my mind, just insidious and dastardly. Question though, this is also our university’s rejection of the educational enterprise of the liberal arts. Hearing that, and you say that in the book that, “Well, this isn’t me.” Or, “These courses don’t reflect my heritage or my background.” But that’s the very idea of education, that it takes you out of that. One could also take courses in African history or something like that, but this in itself is to misunderstand what education is, it’s to turn it into an ideological enterprise. Stanley Kurtz: (11:06)Well, I think that’s true. And I think you can also put it another way, going back to the point I made about American blacks actually very much being a part of Western civilization. And in the book, I say that the same thing applies, say, to Hispanic students, and to almost any student who gets into, say, an elite college has already very likely, in almost every case, become deeply a part of Western civilization. And in the last part of the book, I look into some of the controversies playing out on our campuses. And I argue that in fact, they are very Western controversies, controversies about say whether you should use the word Latinx, instead of Latino. In other words, controversies over whether we should think of ourselves as part of a larger family, and part of a tradition about the family, or whether we should be such free individuals that we can almost create our own language, a language that completely respects and preserves the rights and independence of every individual with respect to their sexuality. That is a very Western sort of controversy. And the students who attack the West don’t fully realize that the cultural politics that they carry is a descendant of the individualism and the great tradition of liberty of the West. Now, it may be, and I personally think it is the case that they’re taking this tradition to a dangerously radical extreme, and in that sense misusing it. But whether you think they’re going in precisely the right direction or not, I don’t think you can understand campus politics today in a deep way, without actually reading the great books of the West. And these students, even students who are of different races and ethnicities, are profoundly Western and could gain self knowledge by truly reading and learning to understand the great books of the West. Richard Reinsch: (13:23)Thinking about, and you make a nice point towards the end of the book, that those making these claims about gender identity would have to confront more… Okay, well, what about the claims now of community, or the accumulation of knowledge and tradition within a community and how one balances that out with individualism? All sorts of examples of intellectual challenges that would be good for them to have but which they aren’t having. Thinking about, so Stanford, you argue, and you’ve alluded to that sort of the epicenter of the higher education battles over the last 40 years. I mean, they sort of crystallize there. And there’s also, you talk about intersectionality. The term used before intersectionality, I hadn’t thought of this, was multiculturalism, and you argue intersectionality actually is a far better term, given what they’re arguing. Could you talk more about that? Stanley Kurtz: (14:15)Absolutely. One of the themes of the book is that the current standpoint of the left, although it is sometimes called multiculturalism, actually has very little to do with culture. I argue in the book that you probably could better call it anticulturalism than multiculturalism. If you actually look at the multicultural, or better the intersectional coalition as it operates on campus, a coalition that generally unites gay students with Latino students and black students and Muslim students. If you actually look at the traditional culture of some of those groups and contrast them, what you actually would have there was a group of people who would probably have a lot of clashing views and clashing perspectives. And so in order to hold a coalition, what you actually have to do is downplay the content of your culture, because that’s what differentiates you. And instead, you have to play up race. That is why the phrase people of color has become so predominant nowadays. The idea of people of color creates a unification between these groups. And the other thing that unifies them, is the sense that they’re all being oppressed, oppressed by some kind of traditionalist Western, and from their point of view, white majority. And so the idea of finding oppression, finds the intersexual coalition together, and plays down their cultural differences. So we saw, for example, that recently at Stanford, you had a leftist coalition, an intersectional coalition. And they started to demand that the courses which would count towards the distribution requirements, as far as diversity goes, that those courses should only include courses that teach about oppression. And they should not necessarily include courses that teach about, say, the history of Chinese culture, or something like that. So culture is really not at the forefront of what’s going on here. Culture is actually being hollowed out. And many of the students who come to school to begin with, as I’ve already noted, are actually fairly assimilated, and are not deeply steeped in their heritage cultures. And so what we’re seeing here are people who don’t actually have much of a culture, and their only sense of collective belonging comes from claiming to be oppressed. And that creates a tendency to want to balloon any tiny incident or issue that could be interpreted as oppressive into a massive, massive problem. Let’s say there’s a statue there you don’t like, that’s not nearly as much of a problem as the entire system of segregation was in the south in the 1940s and ’50s. But a statue becomes a kind of signal that, “Yes, I am oppressed, and we can all unite around that.” It’s pretty thin gruel, but it’s all we’ve got left to form a basis for identities in the current environment. Richard Reinsch: (17:40)A couple of questions come to mind. So you say courses on oppression as opposed to say positive courses on aspects of other cultures? Going back to 1987, what did those chanting, “Hey, hey, ho, ho, Western culture has got to go.” What did they want to replace Western civilization with in terms of courses? Stanley Kurtz: (17:59)Well, that in a way is the heart of the matter, they didn’t really have a very good sense of what they wanted to replace it with. And of course, we know that the problem of the left in general from the ’60s on, is that they have a much more enthusiastic sense of what it is they want to get rid of than what they want to replace it with. And we saw this playing out at Stanford, because when the traditional Western Civ requirement was swept away, first of all, very few of the junior faculty members who had pushed for that change actually proposed to teach a course in the new mode. It was supposed to be called culture ideas and values. It was supposed to essentially be a course about multiculturalism. And few teachers even made a proposal to do it. And the few courses that were actually taught along those lines, turned out to be confusing, incoherent, and ultimately very unpopular with the students. So the requirements collapsed. And Stanford has been lurching ever since they got rid of their very popular Western Civ and Western culture requirements. They have been lurching from one set of required humanities courses to another, and none of them really had any kind of defin…

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    Dan Mahoney Announces the "Liberty and Justice for All" Project Oct 12, 2020
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    Richard Reinsch (00:04): Today, we’re talking with Dan Mahoney, one of the principal founders of Liberty and Justice for All, a new statement and declaration of the right kind of unity about American citizenship and education and constitutionalism. We’re going to let Dan tell us more about that. Dan is a frequent guest of Liberty Law Talk, and we’re glad to have him on. He’s the Augustine Chair of Distinguished Scholarship at Assumption College. He’s the author of a number of books, including The Idol of Our Age: How the Religion of Humanity Subverts Christianity. He’s also the author of The Conservative Foundations of the Liberal Order and The Other Solzhenitsyn. Dan, glad to have you on. Dan Mahoney (01:05): Delighted to be back, Richard. Richard Reinsch (01:07): So last time we were talking about CHAZ which then became CHOP, Capitol Hill Organized Protest in Seattle. We were discussing how the city government of Seattle could allow, in effect, 10 blocks or so of its city to be taken over by Antifa, various thugs, left-wing protestors, who we now know worked a great deal of damage. And so we know this was a microcosm effort of a lot of problems and unrest and unsettlement in our country. And we talked a lot about that. You’ve now become a part of an effort which I’m also a part of called “Liberty and Justice for All.” Maybe tell us about that. Dan Mahoney (01:51): Yes. We published an open letter with 173 signatories. The founders of the effort were myself, Mark Mitchell at Patrick Henry College, Jeremy Beer publisher of The American Conservative, and Joshua Mitchell the Tocqueville scholar at Georgetown, who has a book coming out from Encounter this fall called American Awakening which is actually about the tyranny of despotism. We all consulted after I had published my essay on “The Culture of Hate” at RealClearPolitics around the 4th of July. My colleagues contacted me and said, “We need a concerted effort to speak up in defense of American principles and institutions and against this nihilistic violence and mayhem.” We were all I think, stunned by the fact that this open assault on our history, on our institutions, on the symbols of the American Republic, on our Western inheritance was being met by so little resistance. The Republican Party was acting as if this was just business as usual, this too shall pass. Trump was really the only one speaking up most notably in his very powerful Mount Rushmore address, which was uniformly attacked by mass media. So we put our efforts together and we decided our best approach was to write an open letter to our fellow Americans laying out in bold, but spirited, but nonetheless thoughtful arguments, to weigh exactly what is at stake if those who are committed to the destruction of the American heritage win. And that’s what we did. We laid down the fact that this movement is destructive and not constructive. That it’s not dedicated to reformation which depends on conservation, but is instead dedicated to a full scale assault on America. We also, I think were particularly concerned by the way in which admirable aspirations and principles were being used, especially facile and ideological appeals to justice and inequality. And I should add we were deeply concerned by the iconoclasm the tearing down of statues, the efforts to cancel Lincoln, Frederick Douglass, Junipero Serra, the great saint in California, the ignorance of the mob as they tore down abolitionists and anti slavery people. And we were, I think, deeply concerned about la trahison des clercs, the betrayal of the intellectuals, either at worst endorsing and vigorously endorsing this madness and nihilism and at best simply excusing it, so that was the genesis of our effort. As I said, we had 173 signatories, many very distinguished people, including yourself from a wide range of backgrounds, many conservative, some liberals, many among what I call the unclassifiable people who are not easily ideologically classified. And since the publication of the letter, in RealClearPolitics about 10 or 11 days ago, we’ve had 1,000 people sign on and about another 1,000 who can’t sign for one reason or another, given the power and intimidation of the cancel culture, but who want to be on our mailing list and implicitly, I think endorse our aim. We want this to be an ongoing effort. We’ve followed up with a series of op-eds by Dr. Mitchell, myself, Mark Mitchell, Roger Kimball, and you’ll have a piece on the nature of despotism. Roger Kimball has a piece on the subversion of American education. So we want this to be an ongoing effort as you said, in defense of constitutionalism, the rule of law, and of the fundamental nobility of the principles that underlie the American proposition. Richard Reinsch (06:25): Where can people listening right now, where can they find this, the statement and sign up and make their- Dan Mahoney (06:31): Yeah, you can sign up and don’t be concerned if your signature doesn’t show up right away. We have to verify to make sure there’s not spam and that kind of thing. You know, people can write anything down. So it’s not an automatic process, but if you sign it and you’re committed to it, your name will appear once everything is verified, you can go to the Real Clear Foundation, do a Google search, Liberty and Justice, open letter Liberty and Justice For All. Richard Reinsch (07:29): Realclearfoundation.org, I think is the website. That’s certainly where I found it. So thinking about future goals, building something of a movement, what are future plans, things you want to do? Dan Mahoney (07:41): Well, right now, we’re concentrating on the series of op-eds that develop and clarify and move forward the ideas and inspiration of the letter. I think that will continue for a while. We also envision putting together a series of conversations, perhaps where the signatories of other letters that take a different tack opposing the cancel culture and the new liberalism but I think I know of one such effort that concentrates in higher education. Of course there’s the corporate letter, I’m not sure if their signatories will want to talk to us but we want to talk to them. We have one common signatory, the admirable, independent, black linguist, and intellectual, John McWhorter. I should add, we’ve also partnered, this was this letter was co-sponsored by 1776 Unites. One of our organizers and initiators, Joshua Mitchell is on the board of 1776 Unites. He’s very close to Robert Woodson. 1776 Unites is a group of mainly African-American intellectuals. Robert is a bit of a community organizer in the best sense of the term, but who are committed to American principles to the constructive, and salutary, and truthful role of religion and to the hope inherent in the black experience, and then the American Republic, the American proposition. A wonderful group of people, John McWhorter, Wilfred Reilly, Carol Swain, John Ward, people around Robert who really challenged this narrative that American principles offer nothing for black men and women, or that Lincoln is a dreaded racist who needs to be canceled, or that there is no hope and that blacks are simply victims without agency, and that the majority population in this country are simply white supremacists and oppressors who are beyond redemption. So I think that a prominent crew of both very gifted and serious African-American intellectuals are working to unite the American people to see how the principles of ’76, should bring all of us together to be a source of constructive engagement, moving toward a more dignified future while building on what’s noble in our principles and in our past, while being fully cognizant of the injustices that mar the American experience. So that collaboration with 1776 Unites is very important to us. I believe our letter is also available on the 1776 Unites website. Richard Reinsch (10:36): You mentioned in the letter the signatories’ concerns about free speech being eliminated largely through cancel culture. It occurs to me the First Amendment could be nullified without it being repealed if cancel culture continues because of just the self-censorship that will occur. Representative government, you mentioned that, being sort of undermined as debate becomes difficult, and as these very drastic measures are constantly asserted to be the only way certain institutions like city councils can deal with difficult issues like police reform as in defund the police. And then also you mentioned federalism, market commerce, education, family, and religion. I want to talk briefly on market commerce, just because of the centrality that that’s played as you know, in conservative thought throughout or since the post World War II period. And then the incredible weight that it had after the Cold War. You mentioned two problems in this which will be well-known to our listeners. The threat of crony capitalism, where those who are entrenched in power can use that power to make more money for themselves but foreclose opportunities to others. But you also mentioned woke capitalism, and I thought that was apt and correct, but we’ve got these two problems here, woke capitalism and crony capitalism. What does that mean? Or how should conservatives think about the market in light of the challenge whereby corporations whom we’ve always largely been friendly towards now seem to be actively working against not only conservatism and the causes that they support, but even perhaps the country itself, eating away at their own foundations, it seems to me. Dan Mahoney (12:29): Yeah, I’m a great admirer and I think you are of the writings of Irving Kristol and to a lesser extent, Wilhelm Roepke. And there’s this conservative, liberal defense of the market that both men articulated in the ’40 and ’50s for Roepke for ’60, ’70s, and ’80s with Kristol. It made the point that the market economy is not self subsisting. It depends upon the bourgeois virtues. It needs to be instantiated in a political order which is a commercial republic, it depends on virtues that it sometimes undermine. So this is why Kristol famously in his 1978 book called for Two Cheers For Capitalism. Not because he thought the market mechanism was inefficacious or should be replaced, but because market efficiency when liberated from the larger republican order that grounds it and forms it can be self-destructive, and I think we see that with both crony capitalism, which is really something in a different language and somewhat different form, something that Adam Smith warned against in the Wealth of Nations. Richard Reinsch (13:46): Yes. Dan Mahoney (13:47): That he was never more nervous than when merchants were conspiring against the public good. And woke capitalism, I think is a phenomenon that is tied to corporate capitalism as Irving Kristol pointed out has always been a problem, it’s not that it doesn’t serve productivity and economic efficiency. And I think you’re right that classical liberals and conservatives in America have defended the corporation against demagogues and criticisms, and we were right to do so. But on the other hand, when corporate capitalism simply ignores all the other goods that inform patriotism, the family, tradition, that inform what’s serious to liberal republican order, when corporate capitalists try to buy off socialist demagogues, or also promoting the moral dissolution of civil society, I think these people have to be actively opposed . This is an old phenomenon, many an anti-totalitarian has quoted Lenin’s famous line about the capitalists giving us the rope to hang them with. There’s a long line of history of how Wall Street and corporate capitalists appeased or tried to do business with the Soviet Union, Nazi Germany and this kind of thing. I think we see it today with the People’s Republic of China, we see it with the NBA in China. So our manifesto, our open letter is unequivocally in favor of the principles of the commercial republic, of the viable right of private property, of the indispensability of the market to both liberty and the prosperity of the American people. But yes, we do see the capitalist class complicit in the moral and economics divergence of the American Republic through both woke capitalism, but also crony capitalism. A desire in a way to do an end runaround the market, through the politicization of economic life. So I think when we wrote this letter, we were very careful to add those two because we’re putting together a coalition of independent minded people, none of whom are committed to, or naive about socialism or Marxism, and many of whom see these problems with not so much, I would say the economic order, as the culture that has come to replace the old bourgeois values and virtues. So it was important for us to say that, I think. I think a defense simply in private property in the market against socialism would not have satisfied the majority of our signers because our moral situation today is quite complex. And I think a fulsome defense of the market and the commercial Republic has to take into account these real problems. Richard Reinsch (16:59): I wanted to ask you just briefly before we got on today, I was reading and my friend Phil Magness pointed out and he’s been following the 1619 Project that The New York Times, and he’s caught them red-handed with screenshots, evidence that they’ve surreptitiously been editing the 1619 Project. To take away some of the more strident claims, false claims that they made at the beginning of trying to move away from saying that 1619 was the beginning of our country, which was their first claim. And also moving away from this idea that America separated itself from great Britain in order to bolster the institution of slavery. Dan Mahoney (17:46): Not only an absurd claim… Richard Reinsch (17:47): Not only an absurd claim but they… So we’ve got The New York Times, the paper of record, editing its own website without telling anyone, which is to the extent that there are ethics around online journalism, if you make any substantive edits, you’re supposed to draw attention to it, they did not. And then we’ve got the Black Lives Matter movement on their website, basically taking down their claims that they want to abolish the nuclear family, as well as Marxist-inspired language about business, etc. removing those from its website. And I thought to myself, is that an indication already of some good news for us, for those of us who are trying to repel this movement that they’re editing themselves, surreptitiously taking off these factual errors and ideological claims that most people think are bogus already, an indication that they’ve overshot the mark? Dan Mahoney (18:40): Well, they did overshoot because they engaged in what the political theorist, Gerhart Niemeyer once called a total critique of the West and a total critique of America. And total critiques are always tied to totalitarianism because total critiques, demand negation and destruction. So they did overshoot and people have begun to notice. Now, I don’t for a second believe Nikole Hannah-Jones and the ideologues as the participants in the grievance industry around her have changed their minds at all. It’s just that they are worried that their project will be less the source of a new orthodoxy if the more egregious ideological claims remain. But look, when Charles Kesler early on during this revolution published a piece in the New York Post called “The 1619 Riots,” Nikole Hannah-Jones, tweeted that she was proud of that. In other words, this is the same woman who said when we destroy property we’re not committing violence. We know the amount of property damage and the violence that accompanies that, it is a form of violence but other even more incendiary forms of violence accompany it. They are stepping back a bit I mean again, the trained Marxists, the ideologues who inspired and lead BLM are still trained Marxists, are still committ…

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    Losing Washington Oct 01, 2020
    Show notes

    Richard Reinsch (00:18): Welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Richard Brookhiser about George Washington and our present troubles. Richard Brookhiser, we’re glad to welcome him back to Liberty Law Talk. The last time he was on, we discussed the book he wrote on John Marshall, and he’s the author of numerous books on central figures in American history, on Marshall, Abraham Lincoln, James Madison, George Washington, among many others. Many of you will know him as a senior editor and writer for National Review, where I learned he’s been writing since 1977 when he graduated from Yale. He authors the column City Desk and Country Life. He’s the recipient of a Guggenheim Fellowship and of a National Medal of the Humanities. Richard Brookhiser, thank you so much for joining us. Richard Brookhiser (01:06): Thank you, Richard, for having me again. Always a pleasure to talk about George Washington. Richard Reinsch (01:11): Great. Thank you. I was thinking about our podcast and it’s not just George Washington. Many figures, Ulysses S. Grant, one that comes to mind. Also figures who are abolitionists. Richard Brookhiser (01:24): Yeah. Richard Reinsch (01:24): Who you would not think their statues would be torn down or desecrated in various ways. The famous commemoration of the 54th Massachusetts Regiment, the first Black regiment, was also; their memorial was desecrated in Boston recently. So a lot of this is happening and we can talk more about that. But it occurred to me, as we as conservatives, as unabashed patriots of America, have no problem defending these figures and we’re sort of puzzled as to why this is happening. Or I think we know why it’s happening, but it still puzzles us. Of course, this also presents trying to have a conversation with people who don’t want to have a conversation, obviously. But it occurs to me, maybe the emphasis is on the wrong foot, and we keep thinking about Washington and all of his contributions. But maybe from the standpoint of who we are in our present condition as Americans, are we worthy of a man like George Washington? Richard Brookhiser (02:23): Well, that depends on us, right? Richard Reinsch (02:26): Yes. Richard Brookhiser (02:26): And that always has to be figured out in every generation. I think Washington did an awful lot, and we can go over the record. But he died in 1799, and he can’t live our lives for us. He could help make structures and precedents that will be helpful to us, and I believe he did that, but we have to make use of them or not. It’s up to us. History never gives guarantees. Richard Reinsch (03:03): When you hear the senator from Illinois, Tammy Duckworth, say now she’s open to a conversation of removing statues of George Washington from federal properties whenever other statues have been toppled, what comes to your mind there? Is there anything beyond just rage at America, or is there something specific about what George Washington represents regarding the founding? Richard Brookhiser (03:30): Well, Tammy Duckworth was injured in service to America, so rage against America is clearly not her only motive if it is one of her motives. The short, tart answer to her would be George Washington is the reason you have your job. It’s the reason that the senator from Illinois is you or some other elected person and not the illegitimate son of the Earl of whatever or the Oxford chum of the First Lord of Treasury. He’s also impressive militarily. He’s not a flashy commander. He’s not like Napoleon, who will be a younger contemporary. But he figures out through trial and error what his strategy for coping with the British has to be. The reason we have representative government and elections and self-rule is because of this Revolutionary generation. The most prominent figure in that generation was George Washington. So in a sense, he’s Tammy Duckworth’s employer, or at least he opened the door for Senator Duckworth and all the other 99 senators and every other elected person in America. Now, we the voters can put whoever we like in those slots and sometimes we put bad people, sometimes we put stupid people, sometimes we put people who don’t know as much as they should know about history. But the reason that we have that option, that we have that choice, is because of this Revolutionary generation. And it was a revolution not just for this country; it was a revolution for the world. You can look at the history of the world for the last almost 250 years and see it as a struggle for self-rule. This encompasses a lot. This encompasses political revolution. This includes de-colonization, the end of the imperial empire rule from Europe. It includes the fall of Communism. It includes the successful resistance to Nazism and fascism. You could even see it as the resistance to racism, because racism is a rebellion against stereotypes that are imposed and then structured, that are imposed on people because of their race. And it’s an assertion of the right to self-rule. That you have as much right to self-rule as someone with a different skin color or a different ethnic background or a different religion and so on. The gunpowder charge that set off all of these struggles for the last 200-plus years was lit in the 13 colonies at the end of the 18th century by our Revolutionary generation. Richard Reinsch (06:28): Thinking about, you say self-rule, self-government, and that, of course, is bound up inherently with moral rule and character and one’s ability to govern oneself. Can we talk about maybe Washington’s character some? How should we think about it? And did the character, was it something that forged an American character? Richard Brookhiser (06:54): Well, I should say that self-rule had better be bound up with character or it gets in a lot of trouble very soon. Many of these revolutions in this era that I talked about ended very badly. The first two that followed our revolution, it was the French Revolution, which began in 1789, and that was really a convulsion that lasted for a quarter of a century. One direct consequence of the French Revolution was the revolution in Haiti, called Santo Domingo before the revolution happened. But then Haiti became the second independent country in the Western Hemisphere and the first Black-ruled country in the world. Those two Revolutions had a lot of problems. There was a lot of chaos, a lot of extravagant shedding of blood, a lot of tyranny, new tyranny that was generated in place of the old forms of tyranny. So yeah, a revolution is not a simple thing to pull off, and one of the things you have to have is good character, meaning you have to have control over your own passions and your own ambition. I think this was the quality of George Washington that maybe most impressed his contemporaries. I mean, there were lots of things about him that were impressive and start with his physical stature. He’s over six feet tall; he carries himself very well. He’s described by Thomas Jefferson, who was a very good horseman himself, as the greatest horseman of his age. Soldiers in the Continental Army always knew when there was a party of officers riding at a distance. They could pick out which one was the commander in chief. It was just obvious, so physically he stands out. Politically, he is very shrewd. This is something that’s kind of hard to pick up in biographies because a lot of it he does behind the scenes. He takes very little open part in the struggle to ratify the Constitution, for instance, but it is clear that this is a document that he has endorsed. He’s working for it behind the scenes, and his presence hovers over the whole debate whether or not we should have a new Constitution being debated in 1787 and 1788. He’s also impressive militarily. He’s not a flashy commander. He’s not like Napoleon, who will be a younger contemporary. But he figures out through trial and error what his strategy for coping with the British has to be. He finds the right strategy. He sticks to it. He works well with our French allies. And he achieves the victory, so that’s impressive. But I think the most impressive thing and the thing that most impressed the people around him observing him, working with him, was a sense of his control over his own passions and his own ambition. I mean, this is a man who becomes the most famous man in America, the most famous American in the world, and he goes home twice in his career. He goes home at the end of the war, and he goes home after two terms as president. How many other Revolutionary leaders, how many political leaders, do that so willingly? Now, the list is rather short. But he does it and he does it not just once. He does it twice. I have to tell this story because it’s just so great who says it. When he announces in his farewell address, which was not a delivered speech. It was a published speech that was published in the newspapers. He never spoke it out loud. But he announces at the end of his second term that he’s not going to stand for office a third time. When the news of this comes to England, George III has a conversation with his favorite painter, a man named Benjamin West who was born in America but moved to England early in his life to perfect his art, and he eventually becomes the favorite painter of the king. So George III and West are talking about this, and George III says that Washington’s retirement from the presidency, he says, “This completes the whole. This makes him the most impressive man, the greatest man now living.” So that’s the tribute to George Washington from the other George, George III. I think it’s to George III’s credit that he could say that, but it’s also a very important observation to make, that Washington completes his career not only by doing what he does, but by not doing what he doesn’t do. Richard Reinsch (12:13): On that, this control of character and humility, there’s this Rules of Civility that Washington copies out by hand I think as a teenager, and it was over 100 rules of social etiquette, manners, mores, grace. Interesting, I mean, a interesting thing for a teenage boy to do now. I’m not sure then. But talk about that because that seems to me something that indicates he aspires to something more. He wants to learn some of these hard rules of how to interact with people who are better than him or higher-born or advanced. He wants to impress them. One of the things he thinks is, “Well, I’ve got to learn the rules of how to interact, and I need to commit them to memory.” Richard Brookhiser (13:04): Right. Absolutely. We have to remember that when he starts off in his life, I mean, he’s certainly fortunate in the sense that his father belongs to the gentry in colonial Virginia. This was not a poor background or even a middle-class background, but this was in the gentry class, the class of the people who would participate in ruling the colonies. But Washington’s father, Augustine Washington, was at the lower level of that class. He was coming up in the world, and then he died. He dies suddenly, which was common in Virginia. There was a lot of disease, a lot of early death. So Washington is left fatherless when he is a boy. His father had two marriages. The first wife dies and he married again. Washington was the eldest son of the second marriage. His older half-brothers were both sent to England for some education, not college but pre-college schooling, and probably George would also have been sent there if his father had lived. His father didn’t live, so he doesn’t get to go. As far as we know, he might’ve had some one-room schooling in Virginia. He might also have had a teacher, a tutor, rather. There’s passing references to this and correspondence, but so far as we know, his formal education was very slight. Maybe only Andrew Johnson and Abraham Lincoln have less, of all our presidents. So here he is. He’s got one foot in the door, so to speak. Maybe a couple of toes, but he’s not all the way inside. So how do you get inside? How do you get up in the world? His older half-brother has married into a very wealthy and fancy family, the Fairfaxes. The head of the family, who’s an English lord, he owns a chunk of Virginia which is the size of the colony of New Jersey. This is the state of New Jersey. That’s the Fairfax grant. One job that young George gets through his family connection is to help survey this huge tract of land, which stretches over into the Shenandoah Valley and the mountains beyond. This takes him away from the Tidewater when he’s a young man. It’s one of his first experiences of the West. Unlike a lot of other American leaders, he’s always looking west. He’s not a merchant dealing with England looking east. He’s looking west into the back country. But anyway, here he is and what’s he going to do with his life? So this little book, the Rules of Civility, that we’ve been talking about, someone at some point gave him this. Maybe it was penmanship: “Here, George. Copy these out. Now, there’s a hundred ton of these things. You rewrite them yourself.” We can tell from his copy that this is at least in part a penmanship exercise because the capital letters are very elaborate and it’s like a kid saying, “Oh, look. I can really do a nice capital P. Look at this.” But these rules, you have to say he’s paying attention to what the rules say. They’re called the Rules of Civility and Decent Behavior in Company and Conversation. So this is how do you behave with other people. The first rule explains all the other ones; it sets the tone for all the others to follow. It says, “Every action done in company or conversation should be done with some sign of respect to those who are present.” In other words, here you are in the world, all these other people. You’re going to know some of them. Some of them are complete strangers; you’ll only meet them once. Some of them are your superiors; some of them are inferiors. But everything you do or say in their presence, you have to be aware of them, and you have to give them their proper respect. What’s interesting, this even includes condemned criminals. Because one of the rules says, “If you see a man punished for a crime, though you may be glad, always show pity to the suffering offender.” So that’s even a counsel of a little hypocrisy. You may think, “Ah, he got his just desserts. Good. Keep him in the stock.” But no, you don’t show him that. You give him a nod: “Sorry. Sorry to see this,” something. Always show pity to the suffering offender. So even a condemned criminal is worth a little bit of your attention and a mite of your respect. So these rules are a lesson in awareness, in awareness of other people and also awareness of yourself, how you’re behaving among other people. Obviously, there’s a practical point to this. This helps you in society. It helps you in social gatherings. It tells you how to behave to Lord So-and-so, who may be or maybe not giving you some sort of position that you want. But it is also at the same time shaping your character. Because if you’re thinking about this, if you think about this consistently, you’re going to alter your own behavior. It’s like working from the outside in. You control the way you walk, control the way you talk, control the way you dress, how you interact with people. This is like acting. This is like you are preparing the role of yourself as a person in society. You’re training yourself to act a certain way in society. That’s what the rules are supposed to do and that’s what they did for Washington. Richard Reinsch (19:11): Now, this just sounds horribly wrong to us, I think. Aren’t you supposed to be yourself? Richard Brookhiser (19:19): Right. No, that’s right. That’s right. Just some decades later, we’re going to get authenticity. That’s going to come in. That comes in kind of end of the 18th century and then early 19th century big-time: what is yourself. One of the things John Adams says is Washington had the gif…

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    The Don and the Constitution Sep 15, 2020
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    Richard Reinsch: Welcome to Liberty Law Talk. I’m Richard Reinsch. Today, we’re talking with John Yoo about his new book, Defender in Chief: Donald Trump’s Fight for Presidential Power, that’s just been released. John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley. He’s a visiting fellow at the Hoover Institution and at the American Enterprise Institute. He worked in the Department of Justice under President George W. Bush and was General Counsel to the US Senate Judiciary Committee and has written and published numerous other books. He’s been on Liberty Law Talk to discuss them a few times, and he’s widely cited and published in a number of other forums. So, John, we’re glad to have you to discuss your slightly controversial book today. John Yoo: Richard, thanks a lot. Thanks so much for having me on, and like people always say, long-time listener, rare guest. So I’m really- Richard Reinsch: Well, we’d have you on more often, but you’re always on Ricochet with Richard Epstein. I don’t want to tax your podcast abilities there, too many appearances. John Yoo: Well, Richard and I should come on and be guests with you, which you and I would both talk 5% of the time. Richard Reinsch: Yeah, I know. That would be great. No, I’ve interviewed him before, and I got maybe 5% of the comments in to his 95%. I haven’t forgotten that. So, John, thinking about this book, Defender in Chief, now, something of a change for you. I don’t recall you being a supporter of Trump first time around and I’m not necessarily saying that you are now, but you do argue in this book, in myriad ways, Donald Trump’s presidency has been in defense of the Constitution. So maybe tell us why you wrote this book. John Yoo: Thanks a lot for having me on, and I really care what the listeners of this podcast think about the book because, as I said, I regularly listen to all the episodes and this is the podcast that, to me, is the most originalist in a way, the most deeply engaged with political theory, constitutional law, history, all the stuff I care about. Sometimes I say this book is a trick. It’s an effort to get people interested in Trump to actually learn stuff about the presidency. And as you know, my analysis is primarily originalist but with a lot of Constitutional history. So the reason I wrote the book. Look, four years ago, I was not a supporter of President Trump. I wasn’t the Never Trumper, I suppose, because I didn’t sign any of the many letters circulating, but I wrote op-eds very critical of him. And four years later, I find myself in the position of agreeing more with his defenders than his critics, and for this reason. If you care most about the Constitution, four years ago, you might’ve thought and I worried that Trump would be a populist. And populists, we’ve seen over the years, are the ones who most strain against Constitutional understandings and traditional limits on their powers. They’re the ones who think they have a broad popular mandate to achieve something, and old things like the Constitution or tradition get in the way. So that’s why I was worried four years ago. But now, take a look in 2020 after Trump’s first time, what do we see? We see his critics are the ones who are proposing radical Constitutional change, it seems to me. His critics are the ones who are proposing to abolish the Electoral College, to start manipulating the size of the Supreme Court just because you don’t like the outcomes and add six justices to the Court, to make independent counsels permanent and criminalize our politics again, and nationalize the energy and transport sectors, and you go on and on. So what I found looking back on the last four years is I’ve found Trump was the one who was relying, in my view, on very traditional understandings of presidential power, who was obeying the courts, who was citing congressional delegations’ authority. Now, I think politically he’s been a disruptor, and you’ve had a lot of guests on who’ve talked about the way the presidency has operated the last four years as a political matter. But when it came to the Constitution, I thought Trump actually was mostly defending himself and the constitutional traditions we have from a left that really wants to overturn the way we’ve run for the last 220 years. Richard Reinsch: On this point, you say in the book … I didn’t know what to expect as I was going to read it. It’s not so much affirmative steps Donald Trump is taking as a president. It’s more of things he’s reacting to. He has policies, they are vehemently opposed by his opponents, and then as they’re coming at him in various ways, we can go through those. It’s more of what he has to do to defend the constitutionality of the policies that you speak about in the book. It’s could he fire James Comey? Was that a violation of the Constitution, or was that corruption? Or on impeachment, you have a discussion of that. You also have a really interesting discussion of the Electoral College and is that a legitimate institution or is it tainted by slavery, which many have argued, and you take that discussion head-on. You also talk about Trump and the wall and the appropriation of funds. So maybe we can go through those things. But I took that to be instructive. It’s this intense opposition, the willingness to defeat Trump, by hook or by crook, and the thing that he has to fall back on is really just the Constitution itself, and then he ends up defending it that way. John Yoo: It’s a great point, Richard, because I didn’t think of it that way before, the way you put it. But if you look at many people who are originalist or conservative, their criticism of the modern presidency has been, “Oh, the presidency has become this unconstitutional innovator, someone who’s always trying to change things, he’s radical.” This was actually what the liberal theorists of the presidency in the ’60s and ’70s wanted out of their president. They wanted them to break through and change things. You’re quite right, Richard. If you think about it in the way I look at issue by issue, Trump is actually using presidential power in a more minimalist, I guess you could call it, fashion. He’s trying to defend the core powers of the presidency. He’s not really using those powers to innovate. He’s almost using it to defend. It’s a negative use of the … And if you think about some of these issues, he’s using presidential power actually to try to make the reach of the federal government smaller, not larger. So take foreign policy, for example. We’ll talk about it, too, I assume. He’s withdrawing troops from abroad. He’s terminating agreements. Most of the criticisms of presidents have been, “Oh, you’re sending troops without congressional approval. Oh, you’re entering into international agreements without sending it to the Senate.” Trump’s doing the reverse with presidential power. So he’s using the constitutional powers of the office not to aggressively expand, but he’s using it just to defend this core. So the two examples you mentioned, I think, are good illustrations. Mueller and impeachment before firing Jim Comey. I think of the first as an effort by Trump to restore elected political control over law enforcement, which is his constitutional authority under Article II. I think of impeachment as a fight over the president’s ability to manage foreign policy, both in the face of these progressive era bureaucracies, in a way, that want to be independent and technical and have judgment and expertise and not be under the thumb of politicians. His critics said, “We not only have the right to review the legality of what the president did, the executive order on banning entry into the country, we have the right to guess what was in the president’s mind when he issues or she issued that order. And, in doing so, we’re allowed to guess at what the president was thinking before he was even president.” Richard Reinsch: Yeah. No, it really is. It occurred to me as I was reading your book an interesting experience last fall at the Georgia Political Science Association on a very nice panel to discuss my book, A Constitution in Full. Then I got invited to be on a Trump panel, and you’d be the only conservative on the panel. Of course, I said, “Well, I’m not really a Trump guy. I’m sort of in-between. I call balls and strikes on the administration to the extent that I write about it.” Soon, I am on the panel, and it’s eight to one, and I’m a point four or something. The level of opposition to everything Trump does or had done on the panel … And I found myself several times responding to questions and just going back over basic points of executive power and the Constitution and then how that had been augmented not by Trump but by progressives in the early twentieth century and enlarged to its present state and how we do have a federal statutory presidency that’s been greatly expanded through delegation of authority discretionary powers as well. It was sort of like, “Has this not dawned on you?” The level of opposition there, it made me think, “Well, this is a micro-experience of what’s going on writ large, I think, in Washington.” John Yoo: Come out and spend some time out here in Berkeley. It’s a little different than in Georgia. Richard Reinsch: No, I am convinced hell hath no fury like academics in a red state. But, in any event, as I read your book, I thought, “Yeah, these points John are making, this is all just bedrock stuff here,” but it gets buried by the level of opposition to Trump and of course by his tweeting and his personality. But you open with this, the Electoral College, he loses by, what was it, three million votes, the popular vote, to Hillary Clinton. And if he wins in 2020, it may very well be by something like that. So the Electoral College is now under assault. An argument that’s made … I remember hearing it in law school from Michael Gerhardt, who was my professor, that slavery built the Electoral College to protect the interests of the slave states. That’s now common in progressive circles, and then you also quote the scholar Finkelman, and I’ve read his book, where he makes this point. Even Michael Paulsen on this podcast said this, and he says it in that book he wrote with his son on the Federalist Papers. I challenged him on that and he produced a Madison quote, that was it. Let’s talk about that for a minute. Trump’s not really out to defend the Electoral College, although the way he won in 2016 and may win in 2020 brings that up. Was the Electoral College built on the desire to, what, protect Virginia or something like that? John Yoo: Trump, he might thank his family, he might thank his friends, his supporters, but his biggest supporter has actually been the framers because he has really benefited from the Electoral College design, the way impeachment’s designed. He’s benefited from the structure of the Constitution maybe more so than a lot of recent presidents. But to answer your question directly on the Electoral College, yeah, a lot of people don’t like the Electoral College. It seems ramshackle. But when you go back and look at the history of it, I think it makes more and more sense, and I think this allegation that it’s somehow racist in intention or was done to protect the slave states is wrong, or if it’s right, then the whole Constitution suffers from the same problem. Because, really, what the Electoral College is is not an effort to protect slavery, and I went through in the book, very carefully through- Richard Reinsch: Yeah, you do a great job. John Yoo: … the Constitutional Convention evidence, and it’s just dependent on basically one sentence said by Madison in the debate that was not public when the Constitution was ratified. This was in the Philadelphia Drafting Convention, and it’s not clear it represents anybody’s view. It’s not even clear it’s representing Madison’s view. But the idea, more importantly, was that the founders were trying to strike a balance because they rejected the idea of direct democracy, and that’s not just the Electoral College. In fact, the Electoral College is one of the weakest restraints on direct democracy. Think about the Senate, for example, or judicial review. Those are much more anti-democratic than the Electoral College. But they didn’t want to go for a direct vote. They also, on the other hand, rejected the idea that Congress should pick the president. They didn’t want us to become like what would be the modern European parliamentary democracies where there was no separation of powers and the executive just worked for Congress or was an agent of Congress. So they used the Electoral College to try to have independence from the legislature but also to mediate democracy through institutions, and that’s very typical of the Constitution throughout, and the Electoral College was just one effort to do that. It only matters, though, in close votes. If you think about it, the Electoral College doesn’t matter when the people are overwhelmingly or clearly of one mind on who they want to elect. The second part about this racism point was that when they were designing the Electoral College, people observed that if we go to the system we have now, where the votes are allocated by the states but those votes are counted up or allocated by voting population, using the members of the House plus those in the Senate to come up with the number of votes. Then one delegate said, from North Carolina, a guy named Williamson, he said something along the lines of, “Well, the three-fifths rule will benefit Southern states.” So from that one sentence, people think, “Oh, the electoral college was this huge effort by Southern states to give themselves an advantage because of this three-fifths rule.” But when you look at it closely, it doesn’t come out that way. The slave states and the free states did not vote together on the Electoral College. In fact, if you think of it, Southern states would’ve maybe even disfavored that and wanted to have the Senate pick the president or something or just have the states pick the president, which were also mechanisms that were being thrown around at the time. In fact, this method was much more responsive to democracy than a lot of the other choices make. Nonetheless, I’ll just make this … Whatever was going on then in Philadelphia, again, which was not made known to the states during the ratification process, that effect was removed by Reconstruction. You could say the House of Representatives was equally racist and the Senate, too, but when the three-fifth rule was eliminated, slavery was ended, then the Electoral College, if it ever had that kind of taint to it, the Electoral College loses it after the Civil War. Richard Reinsch: Yeah. It seems to me, and you pointed this out, South Carolina and North Carolina vote against the Electoral College? John Yoo: Yeah, yeah. Richard Reinsch: I didn’t- John Yoo: They did. Richard Reinsch: And if you think about it, South Carolina is one of the key states that probably does not join the Union if they could not bring their slaves. John Yoo: This is my small, small contribution to the history. It’s a very small contribution because I saw no one went back and checked how the states had voted. Richard Reinsch: No one ever goes back to the three-fifths rule and looks at the Constitutional Convention to see who introduced it. It wasn’t Southerners, it was Northerners who were doing it. You could argue it’s a compromise. You could also argue they’re trying to preserve some element of popular sovereignty as well. John Yoo: Exactly. Richard Reinsch: But who cares about history? We’ve got the narrative. Thinking about this, though, and it’s also the case with the Electoral College, this is never really considered, it does mean that parts of the country matter outside of large population centers. It means that one has to put together different parts of the country to win that might be dispara…

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    Canceled at Cal Berkeley Sep 01, 2020
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    Richard Reinsch: Today we’re talking with Steven Hayward about travails in American higher education made possible through cancel culture and Steven Hayward’s particular experiences at the University of California Berkeley. With this unsettling development, Steven Hayward, we’re glad to welcome you back to Liberty Law Talk. When you were last on, we discussed your book, Patriotism is Not Enough: Harry Jaffa, Walter Berns, and the Arguments That Redefined American Conservatism. You’re also the author of a multi-volume history, The Age of Reagan, and numerous other essays and reviews and studies. You’re currently resident scholar at the Institute of Governmental Studies at UC Berkeley. Of course, many will know you from your almost daily blogging at www.powerlineblog.com. We’re glad to have you. Steven Hayward: Well, thank you, Richard. It’s great to be back. Richard Reinsch: I want to talk about your particular experiences at UC Berkeley with some rather unhinged attempts to remove you from campus there by students and less than heroic deans responding to those students. But in general, I’d be interested to get your opinion on this, I think what we’re in now in regard to American higher education is sort of the mop up phase of the Marxist Gramsci’s famous call for a long march through the institutions by the left. I think they’ve marched through and they’ve captured all of them basically. Now they’re in a position of such dominance that there’s really very little pretense that they need to talk to anyone other than themselves or deal fairly and equitably with anyone other than themselves with regard to education and other cultural journalistic enterprises in America. Steven Hayward: I think that’s right. I mean for a long time I thought, like a lot of people did, that maybe I was too accepting of it. That the worst of the radicalism on campus was confined to women’s studies and English departments and language departments. Oddly enough, geography as a discipline went way left quite a long time ago. But that the other disciplines, the main social sciences, political science, sociology, history, although liberal for the most part and they have been for decades, they hadn’t completely succumbed to craziness. Well, that’s mostly wrong. Some of the older disciplines are still okay in a relative sense, but you’re seeing that the administrations have certainly thrown in with what you might say the new woke culture that we live in and still be on the college campuses as we saw with what happened with James Damore at Google out in Silicon Valley. You may remember and listeners may remember when Sam Abrams at Sarah Lawrence, I think is where he is, published that article in The New York Times two years ago saying the problem now in universities is the administration has gone in on this. Of course, he had ferocious blow back over that. One of the controversies at Berkeley right now and at several other places is essentially the demand that all faculty sign a diversity loyalty oath and that diversity will now be used as a criteria for hiring. Well, this is simply back to the McCarthy era. There is some blow back against this even at Berkeley and other UC campuses, but it’s all been put on the back burner because we’ve shut down for the virus. Richard Reinsch: I graduated from my undergraduate institution in 2001 and from law school in 2004. I remember in both institutions, one of which was a very progressive institution, we got a lot of mileage out of just pointing out the lack of representation of conservative, classical liberal voices on the campus. We seemed to find our voice that way. There was an implied tolerance and willingness to hear us out, an acknowledgement that, “Well, we basically own most of the campus, so we need to do this.” It seems to me that doesn’t even really exist anymore. What really does exist is the use of the university itself as Glenn Loury pointed out recently with Brown University’s statement, its anti-racism statement that the university itself becomes a social justice vehicle or becomes essentially an ideological enterprise. Of course, it’s been going on now for many years at UCLA where the professors have to write a statement, I think it’s every year, of how they’re furthering diversity with their teaching. You think of the McCarthy era, but this is something of a religious oath or test that is being required. Steven Hayward: That’s exactly right. I don’t know. I see no sign of anybody in administrations at universities recognize that this is a problem for them. I will say this about Berkeley, it’s sort of odd that I got there in the first place, and long further back, we can go into it a little bit if you want. A lot of people I’ve talked to in the political science department where I’ve spent some time and taught some classes and also some people in the administration say, “We know we have a problem with not enough conservatives on the faculty.” I have to give credit to the Berkeley administration. They have tried to be accommodating to the College Republicans who are not always as prudent as they might be. They invited Milo, right? Richard Reinsch: I remember that. Steven Hayward: Often referred to as the Milo riot. However, they don’t know what to do about it. They simply rubber stamp any of the most radical ideas that come along. This goes back at least 50 years to the ’60s when you had the SDS and other student radicals at the time saying universities should become a node of political activism. It’s not a place for learning anymore. Yeah, I think you’re right. You mentioned graduating, what, 30 years… wait, 20 years ago now. Sorry, you’re a young guy. I had a friend of mine who had a daughter, actually it’s my writing partner at Power Line, John Hinderaker. He has two daughters, 10 years apart. They both went to St. Olaf. One graduated 10 years ago, and one graduated just this last year. The two daughters got together and compared notes. The second daughter just graduated said… or the first daughter reflecting on her experience, a little bit like yours, just in the last 10 years things have gotten so much worse at that same little bucolic campus there in Minnesota. Richard Reinsch: Yeah, St. Olaf. You mentioned the administrators, and I think that’s something people don’t understand. You and I understand that this incredible explosion of these people with these jobs on campus has always happened roughly in that same time span, in the last 10 to 20 years, outpacing faculty hiring and part of… I mean a public choice analysis would be they’ve got to find something to do, something to make themselves worthwhile. But there’s also an ideological component here, too, and these are equity, diversity, inclusion and administrators have really found their measure in appealing to students for greater fairness or greater representational fairness on the basis of gender or race or various status. That becomes a way in which a campus is constantly in upheaval, but also this totalitarian mentality where you really do get into forcing people to think in certain ways, speak in certain ways in the name of fairness and equity. I think that’s sort of also what’s been happening or it has been happening on campus. Have you seen that? You also taught at the University of Colorado Boulder, itself no shrinking progressive violet. Steven Hayward: Right. Well, thinking about administrators, every institution now has a dean of diversity and inclusion and usually a large staff. It’s amazing how large the staff can be at the larger universities like a Berkeley or Michigan. Richard Reinsch: Six figure positions, right? Steven Hayward: Yes, exactly. Again, one of the more significant moments in the whole story with the Oberlin College libel suit brought by the bakery that was judged by a jury, what, a year ago, whatever it was, was a $25 million judgment. What they found was the dean of Diversity and Inclusion had been participating with the students and organizing protests against the bakery. Well, I looked up the dean. I forget her name now. Where’d she come from? Well, she came from women’s studies. You look at her publications and it’s all the deeply left-wing politicized radical woke stuff. You’re now going to make that person an administrator? I think you’ll find that kind of profile at a lot of these administrative positions at colleges around the country. Not as true at Berkeley. I don’t think Berkeley, for instance, has a bias incident response team like Michigan had or may still have, and I’m not sure whether it’s the dean or provost, but the person who does diversity and inclusion at Berkeley right now is from the sciences. I think he’s a biologist. I’ve met him. I’m sure he’s a liberal, but he doesn’t seem to be quite as far gone into the fever swamp as you find in so many places. Richard Reinsch: What’s a bias response team? Steven Hayward: Well, bias incident response team is where students or faculty, but it’s usually students, can report instances of racism or sexism or transphobia. Whether it’s something you said or written or said in class even and they’ll come and investigate this. Of course, we know how these investigations go. It’s leading to increasing amounts of self-censorship by students and faculty. Richard Reinsch: It was a sign also things were going wrong, Trump wins in 2016, and various universities providing safe spaces on campus for the students to talk about this. One of the activities was to color or to express your feelings with color. I thought it was hilarious. In general, it seems to me something in the background here, though, is really it’s a Supreme Court opinion, Bakke v. Regents of University of California system 1978, where there’s this mention by Justice Powell that diversity could be a rationale on the basis that they bring their perspective. That becomes in itself a good. But of course, that doesn’t really gel with affirmative action which was about remediation. Diversity becomes an ever-springing justification for this sort of thinking that you’re going to tie an ideology to a gender or to a race. It seems this has just… whatever Powell intended, and it’s not just higher education, it’s now corporations, it’s now journalism, this has gone beyond this. It’s become, I guess, in a way just fundamentally liberal in its consequences. Steven Hayward: It’s probably worth reminding listeners a little bit about both affirmative action, how it began, and then the Bakke case. If you go back to the original executive orders from first actually John F. Kennedy and then Lyndon Johnson and then the initial programs that were adopted in the private sector and universities, the idea was outreach. Let’s find minorities who, for whatever reason, bad schools or whatever, have the ability and who should be recruited into the employment pool and then hired on merit equally with anybody else. Well, that didn’t last very long. It became de facto quotas pretty fast. In the Bakke case in the ’70s, you have the University of California Medical School at Davis reserved, I think, 21 spots out of 100 for the medical school for minorities no matter what your MCAT scores were and grades and so forth. Allan Bakke sued. He had very high scores but had been turned down twice. Meanwhile all 21 of the students admitted on the quota had test scores and grades not even a little bit below his but way below his. So the courts said, “NO, you can’t do that. You can’t have a numerical quota.” But the whole opinion of the court was a mess because you had all these different concurrences and dissents. So Justice Powell, as you said, was the swing vote saying, “Bakke wins. You can’t have a quota, but diversity should be a factor.” Now, I’ve come to the heretical views just recently that maybe that case was wrongly decided. Maybe we would have been better off, I think, on principle according to a rightful understanding of equality and individual rights, but maybe politically, socially, we would have been better off if the court had said, Fine. You can have quotas. Go ahead. Make my day.” I think it would have been like busing was in the ’60s and ’70s, hugely unpopular including even with minorities. I think it would have all collapsed from its own weight. Instead, everybody said, “Ah, diversity. There’s a perfect thing to dodge behind.” Now it’s become this huge ideology. I know you follow this closely. It reminds me a little bit of the unintended consequences or perverse results of the Chevron case. We talk a lot about the Chevron doctrine. That was a case the Reagan administration won in court. It’s become a nightmare for the bureaucracy, and now it’s the thing we most want to get rid of. Well, I think the Bakke case is similar. Richard Reinsch: It seems to me also a part of this diversity unfolding or unintended consequences, perhaps, the University of California system recently voting to eliminate use of SAT and ACT in admissions requirements, I think, after this year. Of course, more institutions will follow suit. You’ve got the University of California Los Angeles, UC Berkeley. These are high-performing institutions that will not use this basic meritocratic criteria. I think it gives the administrators free rein to shape this campus in the way they want. Steven Hayward: Yes. By the way, I should be very specific about this. The faculty at Berkeley, and I think maybe UCLA but I know at Berkeley, faculty Senate actually voted against the idea. Richard Reinsch: That’s right. I read that. Steven Hayward: I think that’s quite significant. So your liberal faculty said, “No, wait a minute. We want to keep the SAT.” Why is that? Well, I can tell you. Berkeley students, for the most part, are really good. It’s a hard school to get into, and I think the faculty respect this. They want the smart students and they understand… What’s really going on here is, and I picked this up four years when I first showed up there, that the idea of meritocracy is under attack from the left. It has to be because in California the real reason is the Asian kids, a large Asian population. They get super high test scores. So the first thing that the universities diversicrats want to do is they want to get rid of our Prop 209 that banned affirmative action admissions for our public universities. Then they want to be able to shape the demographic of the student body explicitly according to race, and you have to overthrow the idea of meritocracy to do that. So the SAT is just step one, and grades don’t mean much anymore because of grade inflation. So at that point we are going to get back to essentially having quotas, and no one will admit that that’s what they’re doing. Richard Reinsch: It’s absolutely amazing. It’s absolutely amazing that it happens as America increasingly becomes this multiracial society. Steven Hayward: Yeah, yeah. Richard Reinsch: I mean it’s amazing to me. Let’s talk about, you go to Berkeley as a visiting professor. You’re a conservative. You teach, if I remember… You talk about this, by the way, in a really nice, entertaining, well-written essay in the current edition of Commentary. Your piece there is “How I Ran Afoul of Campus Cancel Culture.” You go to Berkeley to teach, what, a couple of classes in the undergrad department. You have a good experience for the first couple of years, so much so that you wonder if you’re not doing it right. Steven Hayward: Yeah, right. I kept thinking, why are there not protests? The student newspaper wrote a nasty article about me when I arrived, but that’s par for the course. Nobody paid any attention to it in the administration or in any of the departments. Richard Reinsch: Well, you said they wrote a mean piece about you in the student newspaper, but it actually helped your student enrollment. Steven Hayward: Well, this is the funny thing is that I suddenly… I was teaching a large lecture class on the Constitution actually in political science that no one had been…

    Full show notes at the publisher

    The Works and Days of Thomas More Aug 03, 2020
    Show notes

    Richard Reinsch: Welcome to Liberty Law Talk, I’m Richard Reinsch. Today we’re talking with two wonderful scholars of the life and thought of Thomas More, about a new volume they’ve edited called The Essential Works of Thomas More. We’re visited today by Gerard Wegemer of the University of Dallas and Stephen Smith of Hillsdale College. I’ll introduce to you first Gerard Wegemer. He is professor of English and Director of the Center for Thomas More studies at the University of Dallas. He is the author of at least six books on Thomas More and a number of other essays and reviews on this thinker. And he has taught at the University of Dallas for a number of years. Gerard we’re glad to have you. Next, Stephen Smith who is Dean of the Faculty and the Temple Family Chair in English literature at Hillsdale College along with being the co-editor with Gerard of The Essential Works of Thomas More. He’s also the author of The Fire of Life: Wonder and Education in Late Shakespeare. Welcome gentlemen. Both of you. Gerard Wegemer: Thank you. Stephen Smith: Happy to be here. Richard Reinsch: Excellent. So thinking about this book The Essential Works of Thomas More, many of our listeners will know Thomas More through A Man For All Seasons which many say is an incomplete account or a maybe not actually true account of Thomas More, but very entertaining and dramatic. Sketch for us, Gerard. Who was Thomas More? Gerard Wegemer: So Thomas More is most famous for The Utopia and for holding the highest office in England under Henry the VIII. He was a poet, philosopher, historian, lawyer, judge, and a statesman who died for the rule of law and conscience and the proper autonomy of church and state. He was also, as a lawyer, a turning point in the history of liberty. Richard Reinsch: Talk about that. Gerard Wegemer: Well, More understood as a lawyer and a judge, a very experienced lawyer and judge, that liberty was justice through the rule of law ordered towards the good of the people. He as a young man learned Greek so he could understand these issues of jurisprudence from Plato, Aristotle, Cicero, and Augustine and Aquinas. He studied these in the original language so he could understand all the elements and the complexity of it achieving some measure of justice in an imperfect world. Richard Reinsch: I want to come back to that later, particularly his humanist learning and his scholarship in that regard. This volume is absolutely enormous and as I was saying to both of you before we started, I thought I understood Thomas More fairly well. I realized there’s a lot that I don’t, that I need to learn. Stephen, what does this volume reveal to us about the thought of Thomas More? Stephen Smith: I share your experience of the book as one of the makers of it, with Gerry, I think I speak for both of us in saying the labor of making this, bringing this book into published form, challenged us at every turn, that More was more comprehensive, more challenging, addressed more subjects and wrote in more forms. It’s hard to put into words what the experience of making a book like this is. The reader encountering it would encounter the versatile and challenging and comprehensive wit of this genius, Thomas More. The book has all of his essential Latin and English writings, he wrote in both Latin and English. It has both his poetry and his prose. A lot of people don’t know that More wrote poetry and wrote at a very high level. It has as many of his letters as we could fit in it. It has complete chronologies and timelines, appendices giving the earliest biographical writings on More from the 16th century. Really if listeners out there want to get a kind of turbo and great view of the book, they should just go to www.essentialmore.org, the supporting website, which is a beautiful supporting website and probably the best introduction to the book that I could recommend. But really when we made the book, Richard, what we were doing was aiming at a single service, providing the readers with everything they need to encounter and study the comprehensive Thomas More. I think your experience of More is like many, which is we know of him through A Man for All Seasons, we know something of the historic and legal drama, but my goodness look at all these writings, to the tune of 1500 double spaces, double columned pages in all these different forms, on literature, on philosophy, on law, theology, poetry. It’s an extraordinary achievement and he’s the first major writer of the English Renaissance and we want everyone to know that. Richard Reinsch: Thinking more specifically, I want to come to you Gerry, on just the legal question that Thomas More confronted, and indeed much greater than a legal question, I think probably a regime question. What specifically is he confronted with and what does he do in response just for the clarity of our listeners? Gerard Wegemer: Well that’s where the entire career of More is important and necessary, to see how even as a young man he was grappling with the issues that deeply affect the life of peace and justice in England. So England is just come out of a civil war when More is seven years old. They are threatened to go into another civil war periodically. Richard Reinsch: Would this have been the War of the Roses? Gerard Wegemer: That’s correct. That’s correct. In fact he will write a history of Richard III, which is about the end of that tremendous war. He’s immersed as a historian in the cultural and the historical issues that face every leader of government. This is where he feels himself inadequate as a young man, and goes back to study the classics and to study medieval history and to study law. He lectures on law twice at two different law schools before he becomes a judge and a lawyer for the city of London, and then eventually under certain conditions, accepts, after a conversation about conscience with Henry VIII, to be an advisor to him, which he does very successfully for 12 years until tensions arise about constitutional issues of church and state. Richard Reinsch: So you’re saying because of the tumult he experienced in England as a young man, this drives him in to scholarship. This drives him into humanist learning. Gerard Wegemer: Yes. He’s a person who deeply is immersed in the life of London, but he’s also immersed in the best way as an intellectual in the fundamental issues that any lawyer or judge has to deal with. It’s why in our tradition, lawyers and judges have received the highest and best education available in each of their countries. Because justice is a very fraught issue with dangers and limitations and requires extraordinary prudence to know, “What can we do under these actual circumstances?” Richard Reinsch: Thinking about, just for a minute, More is confronted with Henry VIII who declares himself head of the church of England, which he reforms, reshapes, according to his will, and More must give his assent to that, and he refuses to and therefor is executed. Is that sort of a simple understanding of what’s happened? Gerard Wegemer: Yes, and along the way, clear manipulation of Parliament under Cromwell’s strategic genius. But also manipulation of convocation, the church’s legislative bodies. Two people remembered that Warham, who’s the head of the church, completely dissociates himself publicly and confronts Henry VIII in Parliament. From everything that they passed under his pressure, Henry visits Parliament personally three times and asks for a division of house. So he knows who’s on his side and who’s not, and Cromwell is going to bash into Parliament that is going to do the will of himself and the king. That’s why More, his trial and the execution, prays that God give Henry good council and refers to the Parliament such as it is. Richard Reinsch: Thinking about this time in England, there isn’t much resistance from my understanding, Thomas More, there’s a bishop, John Fisher, those are the only ones I can find. Is this the sort of natural human tendency towards weakness in the face of overwhelming power and fear for one’s own security and future? Or is there a lot of other things going on? Gerard Wegemer: That’s where there’s a lot of research that has yet to be done, and records that need to be looked at again. But what you recounted is the usual story. But there was considerable resistance and there was an anticipation that what was promised would actually be fulfilled. This is where More’s life is a drama. This is where Chesterton would talk about More as being the turning point in the history of liberty. Liberty is very hard to achieve and it requires citizens who are educated and prepared, not just intellectually, but also as citizens equipped to confront the difficulties that people who want to achieve power and money at any price will always exert. There are certain perennial issues in everyone’s life. Richard Reinsch: Stephen, just sort of switching gears here, you noted the collection of poetry in the volume earlier. What does the poetry reveal about More’s mind and what he loves and presents in the poetry? Stephen Smith: To mention before, most people don’t think of More as the poet, but not only was he a poet, but was scoffingly referred to one. But his poetry is in English and in Latin and Dr. Samuel Johnson who did that great dictionary of the English language, he gave a large sample of Thomas More’s work as poetry and some of his other writings because they were considered models of pure and elegant style. He was known for his eloquence. In the poetry in particular he wrote a poem called “The Pageant of Life,” which imagined human life from birth to eternity, and he wrote poems on fortune and poverty. Late in the Tower of London he wrote a poem called “Lewis the Lost Lover,” which is a little ditty about this guy Lewis who rejects eye flattering fortune when it comes to him offering him help. He has all these really wonderful English poems, but perhaps with the most interest and the least well known, his Latin poetry, his epigrams. Two great critics of these poems wrote that they display More’s logical energy, muscular realism, and penetrating intelligence. These Latin poems were paired and published with Utopia. When you go and you pick up a copy of Utopia at the book store, at the library, you don’t ever see all of these Latin poems with it. One of the things we hope to do eventually is to put an edition out that puts them back together again because the Latin poetry really sheds light on Utopia in a number of startling ways. Just to give you a sense of what the Latin poetry addresses, it addresses human friendship, it addresses comedy, but a lot of the poetry on political life and political philosophy is maybe the most interesting. He has a poem called “What’s the Best Form of Government?” Is it rule by one, or rule by a senate? He has a poem entitled “The Consent of the People” both bestows and withdraws sovereignty. He has poems about good kings, poems about tyranny, so this poetry is an important part of his legacy that’s really not well known and not studied enough, and these epigrams in particular show as much of his mind as anything he wrote. His humor as well. One of my favorite ones is kind of silly, but it’s just a short poem that goes like this: “If an untrimmed beard makes a philosopher, why could not a bearded goat be a Plato?” This is the humor of More is very, he was so serious about Henry VIII and tyranny and decapitation but this is a soul who is famous for his good humor and his good cheer and his wit. It comes out in this poetry as well. In Richard III, for instance, he points out in the Latin edition that it’s Parliament that has the absolute political authority in England, not the king. Now he doesn’t say, “Not the king,” but More is clearly writing for ages and part of the way of overcoming poverty and civil war is to have more mature and robust political institutions. More’s the first person to write a speech in Parliament as Speaker of the House defending the need for free speech and he makes this address to Henry himself. Richard Reinsch: It seems just as I read the poetry, he seemed to be concerned with the end state of man and with sort of a robust soul in approaching the problems of life, the difficulties of life. In my mind, help me understand the type of soul he was, and the largest question he would confront at the end of his life. Stephen Smith: I think he’s searching for a perspective on human life. For that “Pageant of Life” one of the hardest things to come by is a reliable and clear and trustworthy perspective on our human drama. We so often elude that altogether and can’t see it all. That’s why in the history of Richard III, More cries out against the blindness of our human nature. Richard Reinsch: Thinking along these lines about human nature, how did his thinking about human nature shape what he thought about politics? Do we have him preferring, from The Utopia, a republican form of government, and sort of a begrudging acceptance of monarchy? That makes him a very interesting thinker within England, to say the least. Stephen Smith: That poem, “What is the Best For of Government?” It does contrast a sure council with blind fortune when comparing an elected senate and hereditary monarch. In a similar way, Utopia introduces to England the vocabulary of Cicero in terms of the elements of republican self government. This is the dimension that is rarely referred to in that important book. On the other hand, More is extraordinarily discreet. After all, the chief spokesman in Utopia is called Raphael Hythloday, speaker of nonsense. More is not proposing any of this. It’s Raphael who’s pointing out all the serious difficulties of hereditary monarchy. Also the poverty that occurs when you don’t think about the good of the people. More never uses the word subject in his literary writings. It is always citizens and the people. He has a deep, deep assessment of England’s whole history. In Richard III, for instance, he points out in the Latin edition that it’s Parliament that has the absolute political authority in England, not the king. Now he doesn’t say, “Not the king,” but More is clearly writing for ages and part of the way of overcoming poverty and civil war is to have more mature and robust political institutions. More’s the first person to write a speech in Parliament as Speaker of the House defending the need for free speech and he makes this address to Henry himself. In the 1523 Parliament Henry grants free speech because of More, although he will never do it again. Richard Reinsch: So More as a young man confronts the King of England and was briefly thrown into jail, isn’t he? Stephen Smith: This is where More goes back to the sources. He even writes in his letter to Oxford, in some of these humanist writings, that it’s necessary to learn these original languages because translations are so inept. These are complex issues and we need subtle writers and subtle minds. Another aspect of his poetry is you see that even from his teens how serious and committed he is to improving his writing and his thinking. Over 100 of his 300 poems are translations and imitations of Greek poems. He’s trying to understand from within the many arts that a lawyer and judge need and one of them is the art of language and being able to speak to a people in a way that is persuasive and moving to that particular group of people. Richard Reinsch: Talk about, Stephen if you would, I just want to switch gears here for a minute, because I want to keep on covering, I want to keep this legal track, law track, but also with a humanist track. Thomas More and Erasmus, their friendship and what does it mean? Stephen Smith: This is an incredible relationship that lasted much of More’s professional life. We actually have a letter that survived from Erasmus that described his friend Thomas More in detail and it’s one of the best introductions you could have, I th…

    Full show notes at the publisher

    Publius's Constitution, Now More than Ever Jul 28, 2020
    Show notes

    Richard Reinsch: Hello, I’m Richard Reinsch, and welcome to Liberty Law Talk. Today, we’re talking with Colleen Sheehan about Publius and how he contributes to our knowledge and thinking about American constitutionalism. Colleen Sheehan is a master teacher of the American founding. She’s also an excellent scholar of James Madison with two books on his thought, one James Madison and the Spirit of Republican Self-Government, and The Mind of James Madison. She’s the Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership. We’re glad to have her on the program today. Colleen, thank you so much for joining us. Colleen Sheehan: Thank you for having me Richard. Happy to be here. Richard Reinsch: Great. So the occasion of the interview is Publius, but you’re the co-editor with Jack Rakove of a new book just out, a collection of essays called The Cambridge Companion to the Federalist, which has 16 essays from leading scholars on the Federalist Papers and on Publius’ thought from a range of great contributors. You, Greg Weiner, Paul Rahe, Harvey Mansfield, and others. It’s a wonderful volume. As I was reading it, the first question that comes to mind, and maybe for our listeners, and it’s a simple question but a complicated question as you flesh out in the introduction, who exactly was Publius, and why do we need to understand him? Colleen Sheehan: Well, as you know, a lot of folks today probably think we don’t need to understand him. He’s just some dead white male, or maybe dead white three males, some trio of dead white males, that have outmoded ideas that have nothing to do with our nation today. And that’s, of course, one perspective on the American founding and America’s past that maybe what happened in the past in America should stay in the past, and that we are a new and better nation. That’s not my view. I suppose I wouldn’t have spent my time since about 16 years old studying these things if it were my view. I discovered the founders actually at a fairly young age, and thought that there was something more than history going on when I read Jefferson and Hamilton and Washington and Madison. These were people who actually thought that there was something about politics that was ennobling, or that at least it could be. It certainly hadn’t always been, but that it could be. And what I think Publius was up to was looking at the history of the world as a history of the struggle of human beings to live in freedom, to not be governed by somebody else for somebody else’s purposes. Richard Reinsch: There’s that famous opening in Federalist 1 that I thought we could talk about because I think it encapsulates their project, and that is … We should also talk about who Publius is, too. But the Federalist 1, can we found a republic on reflection and choice versus with accident and force, those two different contrasts. What would it mean to Publius to forego instituting this new constitution on reflection and choice, or failing to do so? Colleen Sheehan: Ah, well, I mean I think it means everything. We either do it on the basis of reflection and choice, or we don’t do it at all. When Hamilton says that in Federalist 1, that it seems to have been reserved for the people of this country to decide the important questions, whether societies of men are really capable, or not, of establishing good government around the basis of reflection and choice, or whether they’re forever destined to depend for their political constitutions on accident and force? It’s almost the opening salvo of the Federalist Papers. What that is is really the answer to what Publius says in Federalist 39, that only a republican form of government would be acceptable to the genius of the American people, to the principals of the American Revolution. Because, of course, the American Revolution, and the Declaration of Independence, declares that all just government, all legitimate governments, are based on the consent of the governed. And all governments not based on the consent of the governed are not legitimate, not truly popular, not truly republican governments. And so, it has to be on the basis of reflection and choice. You’ve got to try it, and you’ve got to get it right, or you’ve really not succeeded in anything that the American founding is about. So when Hamilton’s writing Federalist 1, he doesn’t know if it’s going to succeed right? This is the first Federalist paper, and they’re going to be many afterwards, 85 of course in total, written to the people of the state of New York, a state in which it was not at all clear that the federalists would beat the anti-federalists. And if they didn’t win in New York, it was likely that the constitution would fail, we would not have a new constitution. There might not, in a few more years, be anything called America. So it meant everything, Richard. Richard Reinsch: The reflection in choice, but one never gets a pure choice. What events have sort of forced them into this move? First, the Philadelphia Convention, and then this sort of attempt to have a theoretical exposition of the document that’s come out of that convention. But they did change. They are proposing a complete change to the Articles of Confederation, with some, we can go back and forth about the legality of what they’re doing, but they do believe it’s called for by circumstances. And some seem, the anti-federalists as they coined them, unwilling to go along with that. Maybe just talk a bit about the claim that the accident and force would come about if they’re not listened to and the anti-federalists are sort of allowing this experiment to be open to accident and force? Colleen Sheehan: Ah, wow what a great question. Yeah, it would be a kind of drifting. And so we wouldn’t deliberately form a new government, and the economic situation was so bad, inflation was so high. You know, the phrase, “Not worth Continental,” was pretty popular in those days. Widows and orphans of the schools or some war didn’t have enough money to live. We all know about Shays’ Rebellion, and they prevented the courts from sitting so that they couldn’t foreclose on the farmers’ mortgages. And then they’d be sent to debtor’s prison, and then their families would probably not make it. And so the situation was dire. And some of the anti-federalists tried to downplay it, but everyone knew that major changes were absolutely necessary. When Madison says later on in the Federalist Papers, really addressing the question that you just posed and one that the anti-federalists brought up quite a lot, that the convention was not authorized to make these kind of changes. It’s kind of an entirely different, new constitution, on a new basis because it’s not on the basis of state sovereignty anymore, it’s on the basis of popular sovereignty. And so it would be like the UN reorganizing itself so that it would be the sovereign nation of the world. It’s a pretty big change. And the anti-federalists tried to downplay how bad the situation is, but they know it’s bad. And so Madison says later on in the Federalist Papers that this is a question necessity forms, just have to give way when it’s an issue of necessity in politics. Richard Reinsch: And they’re also, by calling for state ratifying conventions, there is the element of popular sovereignty here. I mean you could criticize them on the rule of law, but it’s a question they’re willing to pose to the peoples’ representatives. Colleen Sheehan: Right. And so the constitution’s nothing but a dead letter until life is breathed into it by the ratification of the people of the Federal States of America. So all it is is a proposal coming out of the Philadelphia Convention on September 17, 1787. It’s a pretty important proposal, and it’s got the weight of people like George Washington behind it which means everything. But nonetheless, it doesn’t carry any force of law. It’s simply a proposal. And it has to be ratified by nine of the states until it can go into effect. And of course when it’s ratified by nine of the states, it’s only in effect in the states that ratify it because the authority comes from the people in federal states. Sara Jay kept very nice notes about all of her dinner parties. And there was a dinner party about a week before the first Federalist Papers came out. And interestingly enough, it was all men, which is very unusual. But Hamilton, Jay, and Madison are all at that dinner. Now there are others there, and of course it’s a secret who Publius will be, and they know this is not something told to others, so presumably they don’t talk about this at dinner. But they must’ve huddled in a corner at some point, I mean how could they not have with their plans for this coming out? Richard Reinsch: Now you mentioned the New York Ratification Convention and the motive for the Federalist Papers, an immediate motive to influence their deliberations. That’s sort of a question, and it’s one I asked at the beginning, Publius is Alexander Hamilton, it’s James Madison, and to a lesser extent John Jay. How do they come together to do this and to sound, although we can find differences in their arguments throughout the Papers, people have pointed out contradictions to me, but at the same time they sound remarkably similar and on point? And these are three people, different people, different experiences, different ideas, and they come together to do this. Talk about that. Colleen Sheehan: Yeah, well it’s the brainchild of Alexander Hamilton, which makes a lot of sense of course. He’s from New York, not originally of course. He’s from a little, little tiny island. Only 30-something square miles in the Caribbean called Nevis, which is down by St. Kitts, but moved to the United States when he was a teenager, and actually at some point in his life says, “What, am I the only American here?,” when people are thinking of themselves of Virginians or New Yorkers or I guess Delawareans, is that a term? Hamilton always thought nationally, yet he lived in New York. Of course he intermarries with the famous Schuyler family of New York, we all know that now because his play and the Schuyler sisters, very prominent family from actually a place down by Albany called Schuylerville. And where I am right now in upstate New York on Lake Champlain, I look out my window and I see an island called Schuyler Island. Great fishing over there I hear from the folks around here who like to fish. Anyway, so Hamilton had been at the convention with two other delegates from New York. And the other two delegates, John Lansing, and Robert Yates, were very good friends of then Governor of New York George Clinton. And these guys were big fish in the pond of the state of New York, and they did not want any major changes to the Articles of Confederation. They wanted New York to keep the power that New York had. And New York was successful. New York had New York City. New York had financial successes that were happening in the United States. But they could strong arm states like New Jersey and some of the smaller states, and they didn’t want to lose that power. So at the constitutional convention, Hamilton was always outvoted by Lansing and Yates. And when they go back home after the constitution- Richard Reinsch: And you voted by you state, you had one vote per state. Colleen Sheehan: That’s right. And so New York went with Lansing and Yates until actually Hamilton left and then they left, and so New York wasn’t even there for a while. But Hamilton returned at the end to sign the Constitution. So he starts the effort in New York to advocate for ratification of the Constitution with Lansing, Yates, George Clinton, and a group of very powerful people who became part of the anti-federalists cause on the other side. So he tries to enlist a number of people to help him, but he’s not successful with some of the folks he asks. Besides Jay, and originally Jay was supposed to do a lot more of the writing than he did. He became ill and ends up only writing five of the 85 papers. So ultimately Hamilton asks a Virginian, James Madison, who agrees to do it. Now interestingly enough Richard, just about a week before the publication of the first Federalist Paper in October of 1787, I went back and looked at this, John Jay’s wife was from New York down in Westchester County. Sara Jay kept very nice notes about all of her dinner parties. And there was a dinner party about a week before the first Federalist Papers came out. And interestingly enough, it was all men, which is very unusual. I mean this is not polite company, wouldn’t be considered polite company. But Hamilton, Jay, and Madison are all at that dinner. Now there are others there, and of course it’s a secret who Publius will be, and they know this is not something told to others, so presumably they don’t talk about this at dinner. But they must’ve huddled in a corner at some point, I mean how could they not have with their plans for this coming out? So wouldn’t you have liked to be a fly on the wall at that dinner party? Richard Reinsch: Yeah. I mean you think about coauthored pieces, how those sometimes get worked out rather quickly. Colleen Sheehan: In the beginning, they tried to communicate as much as they could sending sometimes essays to each other, and trying to get things done in advance. But as we all know who’ve been students, and especially those who’ve been graduate students, that ends pretty quickly. And things get ahead of you and you’re writing late at night to complete the deadline the next day, and that’s exactly what happened to them. So the actual original plan that Hamilton lays out in Federalist 1 isn’t precisely followed at all as time goes on. I mean Jay is unable to write some of the essays that he was originally slated to write. And just the pace that they were following to get these essays done and into print, it’s amazing that the work is as coherent actually as it is given the difficulty there. And especially in speaking with one voice. This is one of the questions that Jack Rakove and I ask in this volume. One note about Jack, Jack is an historian, and Jack is- Richard Reinsch: Jack Rakove, your co-editor? Colleen Sheehan: Jack Rakove yeah, from Stanford. He’s a Madison scholar, a founding scholar. He is a smart, witty, what a pleasure to work with him on this volume. It was a constant going back and not just about getting things done, but talking about the ideas and really, in our correspondence, I think the founding for us during that period of time was very much alive. But Jack and I have different views on a number of things, and one of them is whether we should call the author of the Federalist, Publius, or whether we shouldn’t do that because it’s really three separate people and we should always talk about them in terms of Madison, Hamilton, and Jay. Now I’m fine with it both ways. I like country and western. But Jack, as an historian, really didn’t like the idea of referencing them as Publius. And I said, “Well let’s not standardize this throughout the text. Let’s let folks do it how they want to approach it,” and Jack agreed to that. And so the volume reflects both, those who want to take the Federalist author at his word. I mean every essay is signed Publius. They deliberately chose to speak in one voice, even though they didn’t agree on everything themselves. They certainly did not agree on everything themselves. And there are things that … When Madison has to write about the Senate, it’s difficult for him. He and James Wilson almost wanted to go home on July 16th because they were so incredibly upset about the Great Compromise. They thought it was an anti-republican compromise. Madison could not have been more disappointed in that, yet he’s the one that writes about the Senate and has to try to defend that it’s based on equality of the states. Madison says in one of the Federalist Papers, “Think about not from whom the advice comes, but whet…

    Full show notes at the publisher

    A Revolutionary Moment? Jun 26, 2020
    Show notes

    Richard Reinsch: Today we have Daniel Mahoney to discuss with us all things liberalism. Daniel Mahoney holds the Augustine Chair in Distinguished Scholarship at Assumption College. He’s the author of many books, essays, and reviews, including most recently The Idol of Our Age: How the Religion of Humanity Subverts Christianity. He’s also the author of The Other Solzhenitsyn, and currently is working on a book called The Statesman as Thinker: Ten Portraits of Greatness, Courage, and Moderation. Dan Mahoney, you are one of the most trenchant, wise voices in conservative political thought out there. We’re glad to welcome you back to Liberty Law Talk. Daniel Mahoney: Oh, my great pleasure, Richard. Richard Reinsch: Dan, a situation that has bothered me, it’s bothered you. It’s a very recent controversy amongst many other recent controversies that keep piling on is the fallout inside the editorial board of The New York Times, a newspaper that bills itself as the leading newspaper in our country. The end of last week and the beginning of this week, the second week of June, there was intense controversy over an op-ed written by Arkansas Senator Tom Cotton that was published in the initial days of the protests and the riots where he called for the military to be deployed, and the content of that op-ed, as many will now know, led to an internal revolt, particularly among younger editors and staffers at The New York Times who said that this piece constituted violence, particularly against their minority friends, and was unacceptable, and should not have been published. This has now led to the resignation of the editor of the editorial page, James Bennett. Ross Douthat today Friday, June 12th, his column takes his colleagues to task, and he says they are now engaged in something that supersedes liberalism, and is a psychology of anger. It’s a psychology of paralysis, crisis over identities, and seeks to use words really as weapons, not as an attempt to understand truth or political reason. Your thoughts on what, if anything, this crisis might mean for American liberalism. Daniel Mahoney: Well, I think for a long time now American liberalism has been post-liberal or anti-liberal in a very aggressive way. We can talk more about whether the American political order rightly understood is simply a liberal order. I don’t think it’s just a liberal order, but it has a very important liberal component, and that has to do with respect for dialogue, respect for persons, respect for fundamental liberties, a proper prejudice against censorship, against the idea… not that there’s truth, but that any person simply possesses the absolute truth, and has the right to impose that on everyone else, et cetera, et cetera. I think, and perhaps going back to the ’60s where we saw the rise of anti anti-communism, and then a series of cultural issues, a tendency to write off half of the American population as horrible or homophobic, or to make it out like pro-life Americans are anti-woman. These kind of currents have been around for a long time, but in the last 10 days or two weeks we’ve seen a tremendous radicalization of a large part of the left. These are categories as Ross Douthat properly says that are far beyond the liberal order, and that are filled with anger. By the way, I would add these are not voices that defend human dignity because they have replaced one absolutely unacceptable position that some people, some races are superior to another. By the way, very few Americans ever defended that proposition, even when racism was rampant in American society. They’ve replaced it with a different kind of Manichaeism. They are absolutely certain who the victims are. They are permanent victims. They are absolutely certain who the oppressors are, and they demonize the oppressors, who are whole groups of people and not persons who share mutual accountability, and they justify the silencing, and perhaps much more to the future of those who have been demonized. What we are witnessing at The New York Times, and our universities, among the wider intellectual clerisy is a totalitarian logic, not totalitarian yet in practice or fully totalitarian, but it’s heading in that direction. It’s not even a particularly soft totalitarianism. It is the justification of silencing many people of goodwill who do not accept a… It’s the tyranny of ideological clichés. I’m afraid that increasingly are present and unless people resist and show intellectual and civic courage it’s most certainly in our future. The episode of The New York Times is what Charles Péguy called a cas éminent, an eminent case, an eminent case that reveals the new liberal logic at work or proto totalitarian logic at work. Richard Reinsch: When you say totalitarian logic, this position that one group is ontologically a victim, and can do no wrong. Another group is ontologically an oppressor, and can do no right. Where does that lead? Daniel Mahoney: Well, it’s a fully totalitarian logic. As you know, I have written widely on Alexander Solzhenitsyn, perhaps the greatest human being of the 20th century, and Solzhenitsyn insisted over and over again that the line between good and evil runs through every human heart, not through races or classes, nations or regimes, and we need to judge human beings as persons. When we condemn whole groups as intrinsically evil, as you were saying ontologically evil, evil in their being, and others as victims who… and by the way, the victimization part is just as bad as the demonization part because as somebody like Frederick Douglass pointed out or Booker T. Washington in a very different way, Black Americans, like all human beings and all Americans, need a certain degree of pride, of self-respect, and self-help. When they are told they lack agency, when we’re all told we lack agency, that we’re simply prisoners of fate, that we are either ontologically innocent or guilty, we’ve destroyed the freedom, the agency, the mutual accountability at the heart of human dignity and republican self-governance. When I see our civil institutions, when I see our intellectual clerisy bowing before a Black Lives Matter ideology, I’m not talking about the idea that all Black Lives Matter. Of course they matter. All lives matter, but the ideology that accompanies that particular movement, which is not an anti-racist ideology. It’s an ideology of victimization, and demonization. It’s anti-Black. It’s anti-human. It’s fully totalitarian in its logic and effect. Richard Reinsch: How did it come to pass? I’m just sticking with this thread of The New York Times. A newspaper composed of we might say certainly a class with great credentials. I imagine most of the writers and editors are Ivy league educated. Certainly, we’ve known for decades this is not just the leading newspaper in America, but the leading source of liberal opinion. What made the liberalism of The New York Times susceptible to accepting the logic of these, quite frankly, millennial editors and staff writers that language is violence, and silence is complicity in it or something like that? How did that happen? Daniel Mahoney: Well, it happened because our universities… Gramsci’s long march through the institutions. This ideology that is eating away at our civility, our freedom, our mutual accountability it has been in the universities for a long time now. It colonized humanities departments. It became the default language. English departments don’t teach literature. They teach post colonialism, a kind of para-Marxism. Another version of that ideological manichaenism and ontological demonization we just spoke about. These people weren’t educated in the great books. They weren’t educated in the Western tradition. They weren’t educated in the values of civilized order or with liberty. They were educated in agitprop, and I think I said this many years ago that eventually the spirit of illiberalism, of hate, of ideology that has substantiated their selves at our colleges and universities, and our intellectual class would come to in effect some body politic, and I think that’s what happened. Why do an increasing number of millennials praise Marxist Leninist regimes, think communism is a beautiful idea? Why do they buy into a loathsome “culture of repudiation” to use the late, great Sir Roger Scruton phrase? I think they’ve never been exposed to an alternative. I think the agitprop begins early. You go to school, and instead of being challenged by what Matthew Arnold called “the best that’s been thought and said.” For the most part, unless you know better, you are initiated in this language of victimization and demonization, and there’s a point I made in the Idol of Our Age that I think is more relevant than ever. I argued that our present situation is marked by a mixture of toxic relativism and toxic moralism. When you no longer have rational standards of judgment that are the basis of a regime of stability, then there is no restraints on moral indignation or anger because nothing, no judgment is ever judged before the tribunal of reason. Michael Polanyi called this a “moral inversion” that people are officially relativistic, but morality goes underground and comes back as moralistic indignation and ideological fanaticism. That’s exactly where we are. That pattern of anti-reason, of toxic moralism, toxic relativism, if it didn’t completely dominate the universities, it was the leading force, the leading presence, and now it’s invaded the body politic. Let me add one more thing. In speaking about why so many left liberals were taken in by communism or today, perhaps, by a certain softness for radical Islam, Polanyi says, “They confuse the homonyms where the communists talked about justice, peace, and equality.” They did not mean what Christians meant by justice, peace, and equality or conservatives and liberals mean by that. These were homonyms with a very, very different meaning. Liberation theologians, progressive, Christians have taken, lots of political pilgrims got taken. I think the same thing is going on now. I think a lot of people have goodwill. I’m not sure whether these younger militants are people of goodwill, but many of them are taken in by the homonyms. They think when they endorse anti-racism they’re endorsing anti-racism. We should endorse anti-racism, but on the ground of rational assertion of human dignity and liberty, not on the grounds of ideological demonization, but the rot, the sickness, has been around for a long time, but now it’s metastasized throughout the body politic. Richard Reinsch: The toxic relativism was to clear the way. You undermined. You dismissed, mocked, ignored, laughed at, I’ll say a stand-in, Jerusalem. You laughed at Athens. You dismiss the bedrock foundation of American constitutionalism as racist. You say our society is built on slavery. All of those things clear the way for something else to replace it. Do we have a coherent sense of what those in the streets right now in June are trying to erect in its place? It seems to me there are a lot of demands. We see corporate America scurrying to try to placate them, try in many cases to enlist themselves in their cause, or to be seen as such. Is there a coherent package yet, or is that to come once they think they’ve got one, if not both, political parties subservient to what they want? Daniel Mahoney: No. There is no coherent project, but it’s a project of intellectual political and moral destruction. That’s why I mentioned Solzhenitsyn. When you see educated Russian society, members, middle class educated people, rich people, regime officials, intellectuals mouthing the slogans of nihilists, a radical culture of repudiation, as you said, you attack our religious traditions rooted in this rich tradition of logos, and ethical affirmation in scripture, and the larger religious traditions. If you reject the metaphysical truths or the practical reason inherent in Athens in our philosophical traditions, if you assault the West as an essentially culpable civilization. One of my favorite lines is from W.B. Yeats, “Come fix the accusing eye on me. I thirst for accusations.” Well, if the West was just the only truly self critical civilization in history, is ontologically condemnable, we’re talking about nihilism. We’re talking about nothingness. So they have no positive program, except self loathing. Well, if these rituals we’re looking at… Again, we haven’t reached the point of blood or official tyranny and, hopefully, we’ll never reach it, but the structure of it is so similar to that self-loathing one saw in Paris in ’68 or Dostoyevsky’s novel, or the Chinese Cultural Revolution. Somehow the idea that negation is liberating. This is so anti-political because it cannot give rise to rapport. It can only destroy, and I don’t know how this kind of indignation goes on forever. It destroys agency. It destroys dignity. It destroys the pride necessary for common life, but while it lasts, it’s a force of pure destructiveness. Do you remember Eric Voegelin’s definition of ideology that it’s the forcible imposition of a second reality on the real world? I think that’s what we’re seeing now. Richard Reinsch: How does a tough-minded liberalism begin to respond? Daniel Mahoney: Well, a tough-minded liberalism is also a tough-minded conservatism. I wrote a book a few years ago called The Conservative Foundation For the Liberal Order. Pure liberalism has always been a problem; freedom without ends and purposes, progress without tradition. Michael Polanyi once said, “The goals of Tom Payne can only work if they’re wedded to the ideas of Edmund Burke, tradition, continuity, order, civilization.” So a liberal order, first and foremost, can only survive and be worthy of surviving if it repudiates the culture of repudiation. If it renews itself with respect for our principles of our order, which are not racist. I was appalled the other day to see a piece of Public Discourse, an otherwise fine piece by Marco Rubio, saying the American Founders believed that Blacks were three-fifths of a human being, the old canard. It was the anti-slavery North that wanted to count blacks as three-fifths for representation precisely because they didn’t want a slave-owning oligarchy to dominate the new constitutional order. Richard Reinsch: The men who introduced the three-fifths compromise were men from northern states who were opposed to slavery. I think it was Elbridge Gerry and James Wilson, if you read the debates. I’m not sure. Daniel Mahoney: Absolutely. Richard Reinsch: It’s incredible. Daniel Mahoney: By the way, you could not even find a South Carolinian in 1787 who said slavery was good, at least anyone at the Constitutional Convention or in the ratifying debates. That all developed as we know much later with people like George Fitzhugh, and John Calhoun. Yeah, but what’s going to happen is under the guise of anti-racism, a false anti-racism, a racist anti-racism, an ideological approach to things so that our past is going to be erased. For me to publicly make the argument, as Frederick Douglass did in 1852, that our constitution is a fundamentally anti-slavery document, to make the kinds of arguments that the great Abraham Lincoln, and I should also say the great Frederick Douglass, made in his Peoria Address of 1854, and the Cooper Union Address six years later, showing that in no sense was the Constitution pro-slavery. The Supreme Court was wrong in Dred Scott when they said, “The Declaration and Constitution are instruments of oppression.” They’re instruments of ordered liberty, of human dignity, and they were, as Martin Luther King still recognized in his famous speech in I have a dream in November 1963, it’s precisely because of going back to those promissory notes, the Declaration, the Constitution, the Gettysburg Address, that our political order is able to actualize our founding principles, which are principles of liberty and human dignity. I’m…

    Full show notes at the publisher

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