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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:
    Jefferson's "Essay in Architecture" Nov 06, 2023
    Show notes

    Rebecca Burgess is joined by Frank Cogliano to discuss Thomas Jefferson, Monticello, and the Jeffersonian legacy. Brian Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. Rebecca Burgess: We know this outline from every nickel we’ve ever handled, it’s part and parcel of America’s iconography, the pillared domed home Thomas Jefferson built on his mountaintop outside Charlottesville, Virginia, and named Monticello. Jefferson called his self-designed creation his “essay in architecture,” but it is not just a thought-provoking essay in building materials and lines and perspectives, it’s an essay in American political and social thought, not to mention America’s political history. Welcome to Liberty Law Talk. My name is Rebecca Burgess. I’m a contributing editor at Law & Liberty, a senior fellow at the Yorktown Institute, and a visiting fellow with the Independent Women’s Forum. For the next 30 to 40 or so minutes, discussing Jefferson’s Monticello on the 100th anniversary of the Thomas Jefferson Foundation, is Frank Cogliano, Interim Saunders Director of the Robert H. Smith International Center for Jefferson Studies at Monticello. Cogliano is a professor of American history at the University of Edinburgh, where he serves as the University Dean International from North America. He’s a specialist in the history of the American Revolution and the early United States and is the author or editor of nine books, including Thomas Jefferson: Reputation and Legacy and Emperor of Liberty: Thomas Jefferson’s Foreign Policy. Welcome, Professor Cogliano. Frank Cogliano: Thank you, Rebecca. I’m thrilled to be here. Rebecca Burgess: Wonderful. And I should have asked you if you’re coming from Scotland today or from Monticello, Charlottesville. Frank Cogliano: I’m coming to you from Charlottesville today, I’m pleased to say. I’m spending the current year here in Charlottesville at Monticello, directing the International Center for Jefferson Studies. Rebecca Burgess: Could you tell us just a quick little background about what the International Center for Jefferson Studies is? So many people know the building, Monticello, the home, but don’t know that there is this whole study center. Frank Cogliano: Yes, I’d be happy to. So Monticello is the home, as you say, that many people will be familiar with and hopefully they’ve visited. But Monticello is much more than the house; and it’s owned by the Thomas Jefferson Foundation and run as a museum by the foundation. But the foundation has several other arms to it, if you will, one of which is the International Center for Jefferson Studies, which is located in another historic home, about a half mile or so beyond the main entrance to Monticello at a place called Kenwood. And the International Center for Jefferson Studies will celebrate its 30th anniversary next year in 2024. And it was set up to be a center for scholarship and research and to encourage scholarship and research into Jefferson and the world that Jefferson inhabited, not just on Jefferson himself, although we do a lot of research in that area, but also on the American Revolution, the era of the American Revolution, the history of plantation slavery. As I say, the world that Jefferson inhabited and helped to shape. For 30 years, the center, through promoting scholarship, both internally within Monticello but also externally through fellowships for scholars from all over the world, promoting conferences, promoting publication, and helping new scholars publish but also senior scholars, has really helped to shape our understanding of Jefferson and his time. And in so doing, has led… I mean in the past 30 years, and I hope we’ll get to this, there’s been a real kind of efflorescence of studies about Jefferson in his time, and I think ICJS and, in particular, Monticello generally has played a part in that. Rebecca Burgess: Don’t worry, we will definitely get to the 30 years of efflorescence, as you call it. A wonderful word, wonderful image. So we’ll probably go a little bit chronologically here, but I did kind of want to for our listeners start out by just saying the Thomas Jefferson Foundation has two twin pillars of its mission: preservation and education. And I’m hoping that our conversation touches on both, but really on the education element because it has become so vital towards America’s understanding of Jefferson actually through the decades, through now a century as we are at the 100th anniversary this year. And it includes, as you mentioned, the other historic home, Kenwood. There’s a fascinating presidential history that extends beyond Jefferson through Lincoln to the Civil War, obviously, to FDR in World War II, and that’s a wonderful story as well. But if we want to start maybe at the beginning of the kind of conceptual question here, the history of presidential homes and estates, including most especially those of American Founders, often are stories that are just as rich and complex and interesting as that of their original owners, and they often reflect the larger history of the American nation. This is especially true with Monticello. Many are not aware, of course, that unlike in Europe and America, the homes of the Founders or presidents are not owned by the federal government nor fully funded by taxpayer support. They don’t necessarily have continuing grants even from the NEA, the National Endowment of the Arts, or the National Endowment of Humanities. So it’s really been up to private individuals and foundations to protect and preserve them. So Thomas Jefferson’s Monticello has a very rocky few years or decades or beyond decades after his death… His heirs had to sell his estate after his death to settle his debts with the infamous story of the public auction of enslaved individuals on the front lawn. And Monticello passes out of the hands of the Jefferson family. Can you give us just a little bit of that story of what happened after the death of Jefferson, happens before this American Jewish family, the Levy family, comes into the picture? Frank Cogliano: Sure, absolutely. And you’ve done a very good job of summing up the kind of big picture, so thank you for that, Rebecca. As you say, Jefferson died on, many people will know, on the 4th of July, 1826, the 50th anniversary of the Declaration of Independence, as did John Adams. And Jefferson died in debt. He was in pretty extreme debt for a number of reasons, which we can discuss if you like. But that debt resulted in his heirs having to sell his estate, which was Monticello, but also, as you referenced, his human capital as well, the people he enslaved. And so more than a hundred people were auctioned on the west portico. So you mentioned the nickel. It’s the nickel view of the house, the house that one sees on the nickel today and has for decades. That view on those steps, more than a hundred people were auctioned in January of 1827, and the home fell into a state of disrepair. It passed through the hands of several local people in the decade immediately after Jefferson’s death. And then, it was purchased in 1836 by a man named Uriah Levy, who was an officer in the United States Navy from New York. And Levy was unusual. He was one of the few Jewish officers in the Navy at that time, and he was a reformer. He was a sort of social reformer. He campaigned against flogging in the Navy, for example, as a punishment. And he bought Monticello because he admired Jefferson’s commitment to freedom of religion. This is where I think Levy’s own religion, the fact that he was Jewish in a majority Christian country at that time, was really important. So he bought it as a home, and really he used it as a summer home, but he also bought it and sought to preserve it as a monument and as a tribute to Jefferson’s commitment to religious liberty, which was one of the things enshrined on Jefferson’s gravestone here on the mountain top. And the Levy family owned Monticello for longer than the Jeffersons did. They owned it for almost a century, for about 90 years, throughout most of the 19th century. It’s a complicated history because Commodore Levy, Uriah Levy, as he’s called, died in 1862, and he sought to leave the house for the United States at that point. As many listeners will be aware, and undoubtedly you’re aware, there was a small matter of the Civil War going on in 1862, and Monticello was in Virginia. So, there was some debate about whether it was in the United States or not at that point. So, leaving it to the United States was a complicated question. And eventually, there was a series of lawsuits, and again, we don’t need to belabor this history, but the man who comes to own Monticello is one of Uriah Levy’s nephews, a man with the wonderful name of Jefferson Monroe Levy and Jefferson Monroe Levy owns the house basically after the Civil War down to the early 20th century, he served as a congressman at one point, but when he eventually sold it to the Thomas Jefferson Foundation, then the Thomas Jefferson Memorial Foundation, which is the foundation established in 1923. Rebecca Burgess: If we could just maybe have a little tangent there about that whole Civil War moment and Levy trying to gift it to the United States and the United States refusing Monticello and why he wanted to offer it to the United States, to be a home for orphans of naval officers. I think this is very interesting. And, of course, just the bloody reality that the fields around Monticello, that area of Virginia, is the side of the bloodiest battlefields. Frank Cogliano: There was a lot of fighting, as you know, in central and northern Virginia during the Civil War. So you are right. Commodore Levy’s wish to create a kind of an orphanage basically at Monticello for the children of naval officers was again in fitting with his kind of reformist impulses, but it was completely impractical. And he knew that at the time, during the Civil War. That plan or that ambition or that aspiration, I should say, didn’t bear fruit. What’s interesting I think, and you made reference to this in your introductory comments a moment ago, is the fact that most presidential homes are not owned by the United States government. And although presidential libraries, which are often but not always at presidential homes, are homes run by the national archives, again, there’s often a kind of quasi-public-private dimension to this. But with the homes themselves, especially in the 19th century, the preservation of these homes was not seen as something that the government should do. And the best example in the mid-19th century, so shortly before Uriah Levy died in 1862, is Mount Vernon, and of course, Mount Vernon is bought and preserved for the nation by the organization that owns and runs it to this day as a museum, the Mount Vernon Ladies Association. The Mount Vernon Ladies Association doesn’t take any money from the federal government and runs Mount Vernon as a preserved and maintains Mount Vernon as a museum. And that was the model that emerged in the 19th century. And that’s very much the model that the founders of the Thomas Jefferson Foundation have in mind when they buy the house from Jefferson Monroe Levy in 1923. Rebecca Burgess: And there was also an unfortunate note, if I’m remembering right, of antisemitism about the Levy family owning a Monticello, which in part prompted… Or maybe not prompted their sell of it, but it made it difficult. And there were public letters and op-eds basically saying, “How could a Jewish family own this thing that is American?” Various different attempts to get either the government or some other entity to own it. Could you give us a little bit of that story? Frank Cogliano: Yeah, that’s an unfortunate part of this story. And you’re right. And of course, between approximately 1890 and the early 1920s when this foundation is created, there is a period of mass immigration to the United States, mainly from Southern and Eastern Europe. And so whereas most immigration to the United States, voluntary immigration that is, prior to that period had been from Northern and Western Europe and the British Isles, this so-called New Immigration was mainly from, as I say, Southern and Eastern Europe. And many, many millions of those immigrants were non-Protestants. Many were Catholic, but a large number of them were Jews, and they were Jewish migrants from Eastern Europe. And there was, as we know, a kind of backlash against that so-called New Immigration that culminated in a rebirth of the so-called second KKK in the 1920s. So there’s a great deal of antisemitism kind of in the air in the United States in the early 20th century, especially in the early 1920s. As you say, there was a good deal of criticism of the Levy family, despite the fact that they saved Monticello and were the caretakers of Monticello, basically saying, “They’re not really worthy of owning this iconic American site, this site that kind of represents what the United States is.” Sometimes it was explicitly said because they were Jewish. Other times it was left unsaid because frankly it didn’t need to be said. In our current vernacular, it was a dog whistle that everybody understood. And at one point, Jefferson Levy said that he would not sell the house under any circumstances because of this. He eventually acquiesced and sold it to the Thomas Jefferson Foundation in 1923. Many of whose members, I should say, original members, were themselves Jewish. And so the debate about Judaism or the association of Monticello with Judaism, it’s a deep history and it’s an important history and it’s an American history and it needs to be remembered. Rebecca Burgess: Absolutely. Once again, these historic homes of presidents and especially Monticello, is so tapestried, I would say. Maybe that’s not the right word, but it’s the best metaphor I can come up with, which is how interwoven with so many different facets of the America story, the religious liberty, the education, the political, the social, the questions about slavery and race, and the dichotomies that we have had with professing certain ideals and aspirations, and then how we have failed or succeeded in achieving some of them. And this gets to, I think, maybe Jefferson himself, of how complex of a character he is intellectually, politically, and, of course, definitely privately. He had so many public personas. He is a young Virginia land owner, colonial elite, and Virginia State delegate. Importantly, of course, I have to say this: a member of the House of Burgesses. This is how I tell people in Virginia how actually to pronounce my last name. It’s the one state where you see the light bulb click. “Oh, okay.” Rebecca Burgess: … That you see the light bulb click a bit “Ah, okay.” It’s not a hard G. Anyway, but then of course, he’s also Virginia Governor, drafter of the Declaration of Independence and Ambassador to France, US Secretary of State, Vice President, President of the United States, founder and architect of the University of Virginia, a founder of the United States. Which story is told at Monticello of this public persona, this man? And when the Thomas Jefferson Foundation was officially incorporated, how did they choose one of these personas or just the whole man and how did they go about stating what their purpose was with this foundation and what they hoped Monticello to be? Frank Cogliano: Yeah, that’s a small question. Thanks. Rebecca Burgess: You’re welcome. Frank Cogliano: And as you say, it’s a pretty full CV he’s got. He did a lot of things. I think when the foundation is originally established, Jefferson’s reputation was actually at a low point. So Jefferson’s reputation has risen and fallen over the past two centuries since his death. He is in a low point after the Civil War, down to about the ‘1930s, really the ‘…

    Full show notes at the publisher

    Walker Percy in the Ruins: A Conversation with Brian Smith Nov 02, 2023
    Show notes

    The new Managing Editor of Law and Liberty, Brian Smith, joins us to discuss his recently published book, Walker Percy and the Politics of the Wayfarer.

    Related link: Walker Percy and the Politics of Deranged Times


    An Unholy Postmodern Synthesis Sep 25, 2023
    Show notes

    German-American political scientist Yascha Mounk joins associate editor Rachel Lu to discuss his book The Identity Trap. Brian Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. Rachel Lu: Hello, welcome to Liberty Law Talk. Thanks for joining us. I am Rachel Lu, an associate editor at Law & Liberty, and my guest today is Yascha Mounk. Yascha is a professor of the practice of international affairs at Johns Hopkins University and a senior fellow on the Council of Foreign Relations. He’s also a contributing editor at The Atlantic, and he has a new book that we’re going to be discussing today, the Identity Trap: A Story of Ideas and Power in Our Time. Yascha, thanks so much for being with us today. Yascha Mounk: Thank you. I look forward to our conversation. Rachel Lu: Great. So, in this book, you talk about a phenomenon that I think will seem familiar to all our listeners, but they may be used to calling it something else. They may think of it as identity politics or maybe wokeism. You have your own term. I think it’s your own term that you coined. You call it the identity synthesis. So maybe you could start by telling us: why do you see this as the preferred term? What is being synthesized here? Yascha Mounk: Yeah, so first of all, look, I don’t think that a lot depends and turns on exactly what we call it, but at the moment, in the conversation about this big ideology that has arisen seemingly out of nowhere and come to have this tremendous influence on American society and culture and politics, we don’t really have a way to refer to it that is politically neutral. So the way in which this conversation is polarized is with various terms like wokeness, which originally actually were put forward by people who believed in that ideology, who defended that ideology but have now become a kind of cudgel where the moment you say that, a lot of the audience stops listening, and you’re in danger of sounding like an old man who’s shouting at the cloud. So, just for purposes of his book, for the purpose of his conversation, I think we should have a politically neutral term like liberalism or conservatism or all kinds of other terms so both people who embrace those ideas and people who criticize those ideas are happy to say, “Yes, that is the label for this set of ideas. I might like it, but you might not like it. We can have a conversation about it.” So that was sort of a first impetus behind saying, let’s just coin a new term. I think it’s called the identity synthesis. I think that term makes sense for two reasons. First of all, this new ideology we’re talking about is fundamentally about forms of group identity like race, gender, and sexual orientation. It sees the world through the prism of those identities. It thinks that we should act much more strongly on the basis of those identities. It thinks that that is the key concept through which to think about and engage with the world or what identity should be in there. And synthesis really goes to my argument about where those ideas come from, that it is not, as some people have claimed, a form of cultural Marxism where you take the Marxist tradition and you take out class and you stuff in these identity categories and you get where we are. It’s actually a strange synthesis of ideas in postmodernism, post-structuralism, and then critical race theory. But if you understand those three traditions and the main concepts within them, you really start to see the main themes of what I’m calling the identity synthesis or, if you prefer, of identity politics or wokeness that have become so influential in recent years. Rachel Lu: Right, so you go through that intellectual history in the first section of the book, and I thought that was pretty interesting. You seem to see it basically as a synthesis of four different components that you talk about, right? You start with Foucault, and then you talk about people like Edward Said, and then you start talking about critical race theory, and then finally a section on intersectionality. I was just going to say, incidentally, do you ever feel this sinking sense of possible futility when you start an argument with a plan to engage Foucault? There’s always this feeling like, okay, there’s been a signal from the beginning, “I don’t agree to the standards of rational discourse.” So then you’re wondering, “Where is this conversation going to end up?” But I think you do a really good job of bringing all of those pieces together. Can you say just a little bit about why those things came together so well? Why was it so natural for those things to fuse into one synthesis? Yascha Mounk: Yeah, I don’t know that it’s natural. I was originally trained as an intellectual historian. That’s what I did for a lot of my undergrad and part of my PhD. And when you look at past political moments in which people think these 10 different beliefs naturally go together, there’s something that makes that combination of ideas compelling at that time, that helps to explain why people believed that particular set of things. But there’s also always quite a lot of contingency in why it is for various political imperatives and various kinds of political developments that that set of ideas came together. So I do think that these have now fused in this really impactful way, surprisingly impactful way in the mainstream of our society, but I don’t know that it was inevitable. And in an interesting way, some of these thinkers that I talk about and portray actually end up being quite critical of what becomes of their ideas. So, one of the sections I have at the end of part one of the book is Careful What You Wish For. And again, it’s not atypical in intellectual history. A lot of the people who make a set of ideas happen and who are at the root of them in certain ways end up turning around and saying, “Hang on a second. That’s not what I was hoping for.” But to give you a little bit of a sense of what these ideas are, yes, I mean, Michel Foucault starts with a broad rejection of what he calls grant narratives, of the structuring accounts of how society works and what is true in the world. And he rejects, as one part of that, philosophical liberalism, the basic tradition underlying our political system of liberal democracies, or if you prefer, of democratic republics. But he also rejects Marxism, which he thinks of as another grand narrative, and that’s not an idle rejection. It’s one that cost him politically and intellectually in his time because the most famous intellectuals are Jean-Paul Sartre, who are contemporaries of his in Paris and were very much influenced and embracing of a Marxist tradition. And Foucault goes on to make a few points but get the train in motion. One of them is ironically to be quite skeptical of identity categories. Foucault is, in our contemporary terms, gay. He thinks that the idea of a homosexual, the idea of that label, is overly simplifying and he thought we should be very skeptical about it. And the other is his emphasis on political discourses. He doesn’t think of political power as simply traveling from the top down but rather as being exercised in everyday conversations and the way we talk about things and the kind of concepts we use. I mean, this podcast is an exercise of power in Foucauldian terms. And that gives you the building blocks of a radical rejection of a lot of contemporary institutions, a lot of assumptions we have about the world, but it’s also curiously apolitical, right? It leads Foucault to think, “But there really can’t be any particular improvements of the world because there will always be this kind of power discourses, and that’s sort of inevitable.” And so then, a lot of his story consists of how the subsequent traditions respond to and adapt Foucault to their own purposes. So first, Edwards Said says, “Yes, Foucault is right about discourses.” That is how the West has orientalized a lot of the East; that is how it has justified colonial oppression, but the point is to change that. So, I actually want to introduce a politicized form of discourse critique where that really becomes a form of political battle. And we see the effect today of that. For a lot of people in academia but also in a public sphere, what it is to do political battle today is to praise or critique the Barbie movie. What it is to be a feminist is to argue over our cultural interpretations of things and the categories we use in order to talk about the world. That is a contemporary echo of that politicized form of discourse analysis. In another step within the reverse colonial tradition, Gayatri Spivak, a theorist who was born in Kolkata in Bengal in the east of India but teaches at Columbia University, says, “Look, I’m deeply influenced by this postmodern rejection of stable identity categories.“ She agrees that the essentialist account of what makes a woman or what makes somebody black, what makes somebody Latino, these are all to be viewed with tremendous skepticism. But she says the really oppressed can’t speak for themselves. Somebody has to speak for them and to speak for them, we need those kinds of identity categories. And so she sort of suggests the slightly puzzling term of strategic essentialism. And what that is is to say, look, on a philosophical level, these essentialist accounts of identity are wrong, but for strategic purposes, we should act as though were true. And again, you can see the echo of that in contemporary social justice activism. Something you’ll hear very often there is race is, of course, a social construct of race, which I broadly agree, but once you’ve acknowledged the untruth for this essentialist account of race, you then go on to talk about the world and to analyze the world as though race were absolutely true and were really structuring institutions of our contemporary society in every respect. That is really the thing we need to teach people to lean into. Rachel Lu: So I think that’s all very helpful, and I think it’s really interesting the way you lay them on the table, all these different contributing theories, especially because what you end up with is kind of a synthesis, although you might also just say it’s a little bit of a mashup. Different pieces get picked from out of these different philosophies because they answer certain questions people are asking in our time or because they seem to serve certain maybe politicized purposes. But there are various ways in which the pieces that we’ve picked up have tensions internally and also tensions with many of the goals and priorities of the people that are using them. And you can see that more clearly when you look at those different strands, to some extent in isolation, although obviously, that’s never completely possible. So maybe then we should move to the next section of the book where you talk about what, in some ways, is the really shocking thing, which is that this strange mashup of ideas from these different postmodern and maybe post-colonial thinkers went very mainstream in America. Suddenly, this is getting adopted by a wide range of different institutions. And I think this is really hard for Americans, especially conservatives, to understand. We can sort of see how young people and university professors get worked up about ideas like this, but when you see corporations and law firms and the mainstream media and school curricula all reflecting these ideas, that’s a very confusing thing. And it happened so fast, with whiplash-inducing speed. So maybe talk a little bit about: why did that happen? Yascha Mounk: And so perhaps there’s one step in between, which is the emergence of critical race theory, which is, in some ways, a more subtle and sophisticated set of ideas than is portrayed by some of its critics, but it’s also a much more radical set of ideas than its defenders on the left to claim. So, in a weird way, I think it’s a theory that today, in public discourse, is sort of caricatured as much by its defenders as by those who attack it. Derrick Bell, the founder of critical race theory, really makes his name by rejecting Brown v. Board of Education and what he calls the defunct racial equality ideology of a civil rights movement, arguing that because the civil rights movement did not bring the advances for African Americans that he had hoped for, and because there were some real injustices in terms of how the desegregation of schools played out, especially for black students who often continue to be effectively segregated and under-resourced schools, perhaps we should have aimed for schools that were separate but truly equal. So it’s really a very deep rejection of the universalist ideals, but rather than, as the civil rights movement hoped, we should try to live up to the universal ideals of our constitution, making sure we stop excluding people from the enjoyment of those kinds of provisions, he says, “No, that’s never going to happen.“ So we really need to have those separate institutions. We need to treat people more, not less, on the basis of the group of which we’re a part. And that, of course, becomes very fundamental to a lot of contemporary practices, especially around equity. And then there was Kimberlé Crenshaw, who talks about the idea of intersectionality, which starts off just as a recognition that oppression or disadvantage you might suffer goes beyond a combination of characteristics, that when present in combination, they have a larger effect, which is something that social scientists might express by the idea of an interaction effect as something that is not very controversial, but in the interpretation of what intersectionality means, we quickly then get to the idea that if I stand at one kind of intersection of identities and you stand at a different intersection of identities, especially at one that somehow gives you more disadvantage, I really won’t be able to understand you at all. And so you add those sets of ideas, and you really start to have the contemporary identity synthesis. The rejection of absolute truth in Foucault, the politicized form of discourse analysis in Said, the embrace of strategic essentialism in Spivak, the rejection of universal values and neutral rules in Bell, and then the broadened understanding of intersectionality as meaning we really can’t understand each other in Crenshaw. That gives you a lot of the themes of what becomes influential, but you’re right. Kimberlé Crenshaw herself, in the early 2010s, wrote an article celebrating the 30th anniversary of CRT, and she says, “It’s great we have a lot more influence in universities that we could have imagined, and things have really changed and transformed, but of course, Barack Obama doesn’t agree with us at all. He’s at odds with the fundamental tenets of CRT because he’s too moderate, and society as a whole is not listening to us at all, and so we are never going to have influence in the mainstream.” She writes this in the early 2010s, and yet 10 years later, you have these figures who are much less sophisticated, it has to be said, much more popularized, even more Manichean, like Robin DiAngelo and Ibram X. Kendi at the top of New York Times bestseller list and giving these corporate trainings and talks for a lot of the S&P 500 companies in the country, and these ideas really being enshrined in the heart of American culture and society. So how does that happen? How, over the course of 10 years, does it go from the advocates of this ideology themselves saying, “Of course, we’ll never influence the mainstream,” to conquering the mainstream in many ways? That’s the question I ask in the second part of the book, and I have a few answers to that. One is about the short march of the institutions. So, one is the fact that by 2010, a lot of students, especially at elite universities, were de…

    Full show notes at the publisher

    When Does Sex Matter? Sep 11, 2023
    Show notes

    Helen Joyce and Maya Forstater join host Helen Dale to discuss transgender activism, civil rights law, and Forstater’s recent discrimination lawsuit. Brian Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. Helen Dale: Hello, my name is Helen Dale, and I’m Senior Writer at Law & Liberty. With me today are Maya Forstater and Helen Joyce. Maya is the Executive Director and co-founder of the UK lobby group Sex Matters. Helen Joyce, formerly of The Economist, is the author of Trans: When Ideology Meets Reality. She also works at Sex Matters, where she’s Director of Advocacy. It’s fair to say both Helen and Maya have quite extraordinary stories, which are best told in their own words rather than in summary form by a radio broadcaster. So, to that end, let’s get started. Thank you for joining me, Maya and Helen. Helen Joyce: Oh, you’re welcome. Maya Forstater: Hello. Helen Dale: Hello, hello. The common theme here is Sex Matters. Helen, what does Sex Matters do both in the UK and elsewhere? Remembering we’ve got a significant American audience. Helen Joyce: Well, it’s a lobby group, as you say–but we would say advocacy group–and it presents the importance of the fact that sex is a meaningful biological category that is binary and immutable for law, for policy, and for everyday life. In lots of things nowadays, sex doesn’t matter the way that it used to as, for example, when women weren’t allowed to vote, or only a man could get a university degree—but now, sex still matters in the places where it basically comes up against reality, where law and practice come up against reality. So in things like sports, in single-sex facilities, in medicine, in education, when we’re telling children what the truth is about how they’re going to grow up, and yet that’s been very much blurred by trans activism over the past decade or maybe a bit longer to the extent that it’s actually seriously impinging upon our ability to protect everybody’s human rights by recognizing when sex matters. Now, we’re very focused on the law, and we’re very focused on the UK because, of course, laws differ from place to place, but sex doesn’t. So anyone elsewhere who wants to look at what we’ve produced or what we do and think about how to apply it in their own legal framework is more than welcome to do so. And we think that the underlying arguments are really applicable across the world. Helen Dale: Yes, your website’s available to everyone, and there’s a huge amount of resources there. It really is quite extraordinary. While I was preparing for this, I spent quite a bit of time on it, and I thought, “there is a lot here.” There really is. How did you personally become involved in Sex Matters? What made you choose it rather than continuing with The Economist? Helen Joyce: Well, I stumbled upon this extraordinary story about five years ago. Up until then, I had seen trans issues just out of the corner of my eye, and I thought that this was just a legal fiction and accommodation for a very tiny number of people who were very psychologically unusual, who needed to be allowed to move around the world as if they were members of the opposite sex. And I think that’s what most people think it is. And then, just because I was asked by a commissioning editor to look at it, I realized that much more than that was happening. In fact, we were looking at the destruction of the categories of sex in law and that this had really dire effects in all sorts of ways. So I wrote about it. I received the backlash that anyone who talks about this publicly does. That only made me more determined. And I ended up writing a book, which came out about two years ago now, and I thought the book was going to get it out of my system and that I could just go back to… I was Finance Editor at the time. Helen Dale: Yes, I remember. Helen Joyce: I was writing a book at The Economist, that I could just go back to ordinary life having, to my own satisfaction, established that sex is indeed binary and immutable, and that does indeed matter. But it turned out that this is a real, actually civilization-threatening movement, and I didn’t feel I could go back to editing six pages of The Economist every week, even though it was a wonderful publication. So I took a year’s leave of absence, and that turned into a permanent stepping back, even though The Economist had been very welcoming and very supportive of me and really did try quite hard to get me to come back. I would say the other reason that I decided to do it was Maya. I think she’s setting up an extraordinary organization, and I think she’s an excellent leader. So, I felt like I had found the right place to do what I thought I could do to help. Helen Dale: If there’s one thing I just want to draw out of that, you talked about a civilization-ending movement. What makes you say that? Helen Joyce: Well, we are animals, specifically mammals, and we are constrained in our existence. We’re born, we live, we die. We think of ourselves as being ghosts in machines because we have these big brains that don’t fit very well with our rather weak bodies as bodies for mammals go. But the fact is that we are constrained by the fact that we are living beings. And like all mammals, we do come in two sexes. And so something that tries to deny something as basic as that is nearly as fundamental as denying that we breathe air or that we need to sleep or we need to eat. Not quite, but pretty close to it. And you can expect dire consequences if you lie in your law and your policymaking and your education of all sorts at every level in school and universities about something absolutely fundamental to the nature of humanity. At first, I thought it might be minor and side issues. People do tend to think that. They say, “Oh well, just close the door in the toilet. What’s the problem? There’s only one person in 10,000 or something.” They don’t register the fact that we’re embedding a really fundamental law at the center of every one of our institutions, every one of our laws, and the result is that we break them. When you have a lie at the heart of an institution, it flips the purpose of that institution on its head. I’ll just take one example out of many. If you have a safeguarding institution, like a school or the regulator for social work, and you put a lie at its heart, which is that sex is a self-defined category, when it is not, then that institution can no longer safeguard because safeguarding essentially requires you to say what sex everybody is, that men and women are rather different in terms of their risks and the risks they pose to others and the risks they pose to children. And so when you have a lie at the heart of an institution, the next thing that happens is everybody has to be silenced about it. And before you know it, that institution turns on its head and seeks to do the exact opposite of what it was set up to do. So now you have, for example, right now, Social Work England is defending a case taken by a social worker who lost her job for saying that she didn’t think that there are more than two sexes. I forget the exact details of what she said. But basically, she was defending the fact that we need to be able to say what sex everybody is in order to safeguard vulnerable people and children. And she was fired. And now, Social Work England is actively attempting to destroy safeguarding across all of Social Work because it allowed a lie into its heart. Helen Dale: And this leads me to my next question, which is why we’ve got both of you together. And this was done very deliberately because Liberty Law Talk is a podcast of a legally focused magazine. In UK employment and civil rights law, Maya Forstater is what lawyers often call a living precedent. Maya, how did you become one and what does it feel like? Maya Forstater: Really, one step at a time. I was working for a think-tank, actually, a Washington D.C. headquartered international economic development think-tank. I was working in London, but the bulk of the organization is in Washington D.C., and the UK government was consulting at the time–this was in 2018–about a proposal to reform the law that allows people to change their legally recorded sex, which is used for some purposes such as marriage and the basis on which they could do that. So the UK government was asking for people to input into this. It was a topic of democratic, legitimate debate. I don’t work on sex and gender. I was working on international tax policy, but I was in an organization full of economists, sensible, pragmatic, empirical, quite hard-nosed people. And it never occurred to me that they would get offended when I said on Twitter, “Men are not women,” basically. And in fact, they didn’t. What happened was a couple of people, or three people, I think, in Washington D.C., young female fundraisers for the organization, recent graduates–they complained. And I hadn’t seen that coming. I didn’t know them. I had no idea, really, at that time about the kind of culture that they were coming from. They complained to HR in Washington, and then it escalated from there. Obviously, I didn’t see all of that at the time, but when you go to court, it all comes out. Helen Dale: Comes out in discovery, yes. Maya Forstater: Yes. So initially, my colleagues–the senior colleagues of the think tank–said, “Well, what she’s saying seems to be a bit controversial. It’s an issue where there are heated feelings on both sides, but we don’t really see a problem in what she’s saying. Let’s ask her to put a disclaimer on her tweets—‘all views my own.’” I did that and thought that was it—but then it escalated over six months, and I ended up being investigated and then losing my job. At that point, I didn’t know I had any employment rights because I wasn’t employed in a straightforward way. I was a visiting fellow with a contract, but I tweeted about it. And there were feminist lawyers who had been thinking about a case like mine before it happened. They dreamt me into existence, I think, which was a belief discrimination case. So in UK law, we have the Equality Act, which brought together… It’s the Equality Act 2010, and it brought together 40 years of discrimination protection, race discrimination, age, disability, and sex into one law. It includes nine protected characteristics, things that you shouldn’t be discriminated against for. One of those is religion or belief, and it includes obviously religions, but also what they call philosophical beliefs, any serious secular belief that has as much importance to you as a religion. String theory doesn’t count, but any belief that shapes your life. Somebody’s won a case on ethical veganism. And so the big question of my case was: Is the belief that sex is real, immutable, and important a protected belief? My employer fought that. And so they argued the other side. They said that it’s not a protected belief. That it is on par with Nazism or fascism. Those are the kinds of beliefs that don’t fall under this protection. And they won in the first instance. And that was what really brought my case into the public domain because the day after, they won that bit, and I lost it. J.K. Rowling tweeted about it, and suddenly, it became a much bigger story. And I appealed, and they fought that, and I won. And four years later, I’ve won compensation for losing my job, and I’ve created this precedent. So I’m glad it’s over. Helen Dale: Yes, I’ve been on the… When I say the other side, I don’t mean the other side as in the other party in litigation–but the other side as in the job of both the solicitor and the barrister–because I’ve practiced it in both arms of the divided profession that exists in commonwealth countries, unlike the US system, which is a bit different. And I have seen what is described among lawyers… I have seen clients develop litigation neurosis, because they’re placed under so much pressure, particularly when there are multiple appeals and you have to keep climbing up the courts. And I think, based on my understanding of employment law, although it’s not my area of experience, is that the next step–had you lost again–would’ve been the High Court. Is that correct, or the Court of Appeal? It would’ve been the Court of Appeal? Maya Forstater: Court of Appeal, I think. Helen Dale: Okay. For our American listeners, that’s like one of your circuit courts for the fifth circuit or the seventh circuit. And for an American, the next step after that is SCOTUS. So you’re getting very, very serious there. So, what does it feel like to be a living precedent? Maya Forstater: Well, I’m glad I didn’t change my name when I got married because it’s my name, and there aren’t many Forstaters in the world. Helen Dale: Generations of law students who have to write it out, remember how to spell it, and underline it. Well, they’ll thank you. Maya Forstater: Yes, exactly. Helen Dale: Yes, you are. Maya Forstater: I’m the snail in the bottle. Yes, I surprise people when I turn up to lawyers’ parties. It’s definitely the most important thing that I’ve done so far, and it has an amazing catalytic effect. People say my name at work, and it stops a grievance or an investigation, or it makes their employer think twice about what would otherwise be a process that I went through–this escalation of the idea that if you say that sex is not real, it’s open season and you should lose your job. So my name has become very powerful, and that’s quite strange, but I’m hoping it’s not the most important thing that I’ve ever done because I then went on to co-found Sex Matters. Helen Dale: If there’s anything that can be said as a follow-up to the idea of being a living precedent, it’s creating an organization that then puts that precedent to work. It’s really quite extraordinary. It’s like Mrs. Carlill of Carlill and Carbolic Smoke Ball, which is another classic contract case. And, of course, the snail in the bottle is the classic tort or delict case. It’s like one of those individuals setting up an organization for tort law reform or for reforms to the law of contract. It really is quite striking. And this is employment law and civil rights law, the way this is working. A common theme here is working through the courts, engaging in multiple rounds of litigation, which you have–not only on your own account but also in concert with other organizations like the Free Speech Union. How is that proceeding, and do you have any idea how many Forstater cases there are currently on foot? Maya Forstater: I haven’t got an exact number, but I think it’s definitely in the dozens at the moment. And then there are other cases that have settled, and there are situations where, as I said, people have just said my name or cited the case and managed to get an employer to back down and to stop the witch hunt. And those ones, ultimately, I think we need more of those. We need to reduce the cost of challenging this and just make it more normal so that people don’t get discriminated against for saying something which is completely normal. It is what everyone thought about sex until five minutes ago. And as Helen said, it’s something that people need to be able to understand to do their job. So I don’t want hundreds and thousands of Forstater cases because that only makes work for lawyers, but certainly, we need more to bash the case home so that employers really take notice. And also to, there’s the first case in a university, the first case in the civil service, the first case against a regulator, which was this Social Work England one that Helen talked about. There needs to be a case where somebody sues their trade union who are also covered by the same regulation, the same law. The way that this ideology has gone about protecting itself and protecting the lie has been to go after people at work and to shu…

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    Toward a Conservatism of Freedom Sep 04, 2023
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    Avik Roy joins host James Patterson to discuss Freedom Conservatism, its “Statement of Principles” and the broader political and intellectual environment. Brian Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. James Patterson: Hello, and welcome to Liberty Law Talk. Today is August 18th, 2023. My name is James Patterson. I am a contributing editor at Law & Liberty, as well as associate professor and chair of the politics department at Ave Maria University. A fellow at the Center for Religion, Culture, and Democracy in the Institute for Human Ecology. And president of the Ciceronian Society. With me today is Dr. Avik Roy. He is the president of The Foundation for Research on Equal Opportunity, a think tank improving the lives of Americans on the bottom half of the economic ladder, using freedom, innovation, and pluralism. Roy’s work has been praised on both the left and the right. National Review called him one of the nation’s sharpest policy minds. Well, the New York Times, Paul Krugman, concedes, “Roy is about as good as you can get in this stuff. He actually knows something.” That’s high praise. Roy also serves as the policy editor at Forbes on the advisory boards of the Milken Center for Advancing the American Dream, and the Bitcoin Policy Institute. And is a senior advisor to the Bipartisan Policy Center. He’s advised several presidential candidates, including Marco Rubio, Rick Perry, and Mitt Romney. Roy was educated at MIT, where he studied molecular biology at the Yale University School of Medicine. Dr. Roy, welcome to Liberty Law Talk. Avik Roy: It’s nice to be with you. Please call me Avik. James Patterson: Oh, okay. Yes, Avik. So the reason for our conversation today is because you are one of the principle movers behind the Freedom Conservatism Statement of principles, as well as a broader effort to articulate a freedom conservatism. So for the readers and listeners at Law & Liberty who are not familiar with freedom conservatism, why don’t you explain to them what this project is? Avik Roy: Sure. So a bunch of us have, over the last many years, I’m sure including many devotees of this podcast and of the Liberty Fund and of Law & Liberty, have watched with dismay as there has been a rise of authoritarianism, not just on the left, but on the right around the world and in the United States. And I think in the initial going, obviously many of us hope that this would be some temporary eruption that would eventually fall aside as people realize that authoritarianism is not something that Americans really want. But as time has gone on, I think it’s become clear that the people on the right in particular who like the rise of authoritarianism, who are inclined, who believe that it’s a good thing, it’s a salutary development, have succeeded at moving beyond merely trying to align with Donald Trump’s authoritarian tendencies at times, and instead try to build a permanent movement around authoritarianism. They call it national conservatism, by which they mean that the classical liberal movement is too nice; it’s too willing to engage in toleration of multiple points of view. And that what we really need is an authoritarianism of the right to combat the authoritarianism of the left. And last year, in 2022, the national conservatives got together and created a statement of principles with 10 planks that they published at their website. They have conferences twice a year, usually one in the US and one in Hungary or some other aligned location. And they have created an organized group of young people in particular, Capitol Hill staffers, people out of college, for whom this is the only kind of conservatism they’ve ever known. For those of us who are older, we take for granted that classical liberalism is a central part of the 20th-century conservative tradition and 21st-century conservative tradition. But for the nationalists, if you’re just graduating from college now, you’re 22 years old, 21 years old maybe, you were just entering middle school when Trump went down that golden escalator. So, you’re not aware of any other form of American conservatism. So, young people growing up today have had the impression that if you are to be a conservative, if you see yourself on the right or right of center, and especially if you see yourself as an opponent of the left, that nationalism and authoritarianism are the philosophies you need to adopt. And that trend, in particular, has become very concerning. It’s also become very concerning that a lot of politicians on the right have concluded that the way to win a Republican primary in particular, whether it’s running for president or running for Congress or state legislature, is to adopt these nationalist authoritarian positions because they see that as the base of the party. It wasn’t that long ago that the Tea Party was the base of the party, a group of people who were seen as being constitutionalists, people who wanted the government out of their lives. That’s been replaced by this new theory that the base is nationalistic and authoritarian. And so you put all these things together, all these different trends, and a bunch of other people felt that this was a great concern, “We need to do something about it.” And that the first step in doing something about it was to put together our own statement of principles. Now, obviously, we have the advantage that others in the past have also created statements or principles. The most relevant one for us was the Sharon Statement, which was signed by a group of people at Bill Buckley’s house in Sharon, Connecticut, who ended up creating Young Americans for Freedom, a young organization of libertarians, individuals, and conservatives. And they put together a statement of principle that we took as our core inspiration. But our goal was to say, let’s create a statement of principles ourselves that, while it takes inspiration from the Sharon statement, is adapted to the political and policy challenges of our time. And also, it evolves and iterates upon that statement of principles in certain ways and allows us to articulate a different form of conservativism than nationalism. And also allows us, by gathering a bunch of signatories, to start building that movement. A group of people that are willing to put their names on a piece of paper and say, “Hey, I’m standing up for these principles.” And thereby, if I look around and I see other names on that list, you know that these are people who are aligned with you, who are your friends, who you can reach out to and connect with, and we can start to build our own organization and network of people who advocate for the role of liberty and freedom in America once again. James Patterson: I agree with the concern about the interest in authoritarianism. For Law & Liberty, a couple of years ago, I noted the growth of the Francisco Franco appreciation threads that had emerged in social media. Strange. But the people who often write these threads or are participating in national conservatism conferences, paying attention to the publications and other media that come from national conservativist sources, one of their mantras, one of their rhetorical questions rather is what has conservatism conserved, here meaning fusionism? There’s an answer to that question, I think. What is your answer to that question? Avik Roy: Well, boy, we could spend a whole hour on this topic. But I think I would answer it, I would flip your question to its inverse in a sense, which is that the national conservatives believe that America is lost. It’s a profoundly pessimistic movement. They believe that the things that made America great are no longer present, that America is lost. Now, why do they believe that? Why do they believe that America is lost? Now, we could come up with lots of things that, in terms of trends in the United States, we think are negative if we wanted to look at the pessimistic side of things, right? The amount of money that the government spend has gone up. The size of the Federal Register, the compilation of all the regulations at the federal level, has gone up. The deficit and debt have gone up. So there are things like that that are not great. There are things like entrenched and aggressive political correctness, as we used to call it, and now people call it “wokery” or “wokism.” That’s not just in educational circles but in corporate settings as well. So those are the kinds of things that the nationals point to and say, “Hey, America is lost.” Now, there’s something that some will say out loud, and others will not say out loud, which is arguably the core animating concern that they have, which is not so much those things, though those things I think all of us would agree we don’t like about the state of America today. But the reason why they say America is lost is because of demographic issues. That is what you hear that some of the nationals say in their own settings and their own journals, and again, particularly the most frank and blunt and open ones who don’t worry about any pushback they might get on this topic. They say the biggest problem with America is that America is increasingly a multi-ethnic, multiracial society. That’s something that they believe will help drive America to lose its fundamental character. That America, in order to preserve its fundamental character, needs to be a white ethnostate. And that’s why immigration policy is front and center, not just in the United States but in nationalist movements all around the world. Skepticism of immigration, not just illegal immigration, but legal immigration. And this is really a core point, a critical distinction; I think most Americans don’t like illegal immigration, but most Americans like legal immigration. They believe that since almost all of us are descendants of legal immigrants, we understand the role that immigration has played in making America this dynamic, great, prosperous country. So many of the greatest companies and successes we’ve had, economically and otherwise, scientific achievements, our athletic achievements, come from the people who have come to America from elsewhere. This movie Oppenheimer is in the theaters as we’re recording this podcast. I mean, much of our ability to win World War II and develop nuclear weapons came from immigrants, people who left Europe, who were being persecuted because they were ethnic minorities. And so those are the things that have made America great and continue to drive America to greatness in many ways. There are a lot of good things that are going on in America. We are still the most innovative country in the world. We’re still the cultural leader of the world. We’re still the wealthiest country in the history of the world. We’re still a country where basic freedoms like being able to say what you want. Yes, there are people who are trying to push back, there’s cancel culture, there are all these issues. But fundamentally, we have the ability to record this podcast and say what we want to say. And yes, there are others who don’t like it when you say what you want to say, but we are still basically a free society. And yes, there are things to improve about that free society, but we are not doing as badly as the nationalists think. And the reason why the nationalists say that we’re lost, already lost, because this is a demographic issue, that, well, America is already not American, if you think America should be a white ethnostate, and that’s why they lean towards authoritarian ideas because they know they can’t persuade a majority of the electorate to go along with reformatting America as a white ethnostate, most Americans don’t want that. And so that’s why they veer towards these anti-democratic, anti-Republican ideas of what America should be in the future. James Patterson: Well, the freedom conservatism principles have a lot of continuity with what used to be called fusionism, which is the older version of conservatism that really was part of the original sort of conservative movement following the Second World War of William F. Buckley Jr. and Frank Meyer. And that was regnant during the Reagan years and really had a lasting influence through the George W. Bush administration. Do you see freedom conservatism as a fusionism 2.0, or is it a new stage of conservatism that’s meant to reckon with the things that you just mentioned? Avik Roy: I think it’s both, right? For the listeners who are not familiar with the term fusionism, let’s just make sure that we’re describing it. So, you could say there are two forms of fusionism. There is the, you could say, coalitional fusion. So, the American conservative movement of the 20th century was a coalition of people that included libertarians, classical liberals, social conservatives, anti-communists, and a lot of people in between. And that coalition won the Cold War and did a lot to make America the preeminent nation in the world in the late 20th century when we defeated the Soviet Union. There were people in that movement who would’ve said, I’m not a… And there’s a second, is what I’m getting at, there’s a second form of fusionism, which is what Frank Meyer, in particular, was known for, which was trying to actually come up with a philosophy, a political philosophy that incorporated both classical liberalism and social conservatism into a single philosophy. And his argument was that in order to be truly virtuous, if you’re a social conservative and you care about virtue, one must live in a free society because it’s only through freely choosing virtue that you can actually be virtuous. If someone’s forcing you to be virtuous, you’re not really being that virtuous. That was Meyer’s argument. And so the thing I’m trying to make clear by getting into all this, the etymology or taxonomy, is that the Freedom Conservatism Statement of principles is open to both kinds of people. So there are signatories to the document who are libertarians, classical liberals. There are signatories to the document who are social conservatives and foreign policy hawks, who wouldn’t think of themselves as fusionists in the Frank Meyer sense of the term. But there are also people who are signatories to the documents who are fusionists. So it encompasses both kinds of fusionism, is what I’m trying to say. James Patterson: Awesome. Yeah, I was originally… I’m sorry, an original signer of the document. And I don’t really consider myself a libertarian, but I thought the language was capacious enough to address people who share your concerns about the emergence of national conservatism and its attraction to this or even endorsement of this oddly authoritarian approach to the American republic. So what do you think is the cause for so much interest in this alternative vision, this national conservative vision? You mentioned earlier that part of it is youthful ignorance. Is that everything, or is there more to it? Avik Roy: Well, I do think that if you’re the kind of person who’s gone to college in the last seven years, it was really 2015 when this Yale Halloween incident happened that things really started to change. Jonathan Haidt wrote an interesting article, I believe for The Atlantic, where he traced some of this to the rise of Instagram and some of these other relatively newfangled social media tools, where things really started to change, and the cancel culture really took off. And so I think there’s a cohort of people who come out of that environment who’ve been radicalized in the other direction. Right? So if you’re in an environment where you’re told you are a fundamentally guilty and inferior person because you are a white male, a heterosexual white male in particular, then you’re radicalized in the other direction and you feel frustrated because to the degree that your elders are t…

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    Israel's Judges Aug 14, 2023
    Show notes

    Yonatan Green joins host Rebecca Burgess to discuss Israel’s legal system and the reform proposals that have been generating controversy in 2023. Brian Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org and thank you for listening. Rebecca Burgess: Hello and welcome to Liberty Law Talk. My name is Rebecca Burgess. It’s my joy to be a contributing editor at Law & Liberty and a visiting fellow at the Independent Women’s Forum. Students and professors of natural law theories are familiar with the sobering refrain from the book of Judges. In those days, there was no king in Israel and every man did what was right in his own eyes as an encapsulation of the chaoticness and unsteady character of politics and society at that time in Ancient Israel. Of course, in modern Israel, there is no king by design, but it also has no constitution to be the king or governor of the country’s law, a parliamentary democracy. Israel has held five elections in the past four years since last November’s election and Netanyahu’s return as Prime Minister, there has been a definite chaoticness to Israeli political life. Beginning this January, not only have there been almost daily protests, but 10,000 reservists in the Israeli Defense Force have even suspended their volunteer duty. The triggering cause, judicial reforms proposed by the Netanyahu government. Many across the West, including in America, including even Secretary of State, Antony Blinken and President Biden, have essentially said these reforms are undemocratic, that the fate of democracy in Israel is at stake. We’re entering the 29th week of protests this week, and the Knesset voted in favor of a first series of proposed reforms. But the other side of the story is that the opposition simply walked out and cast no vote. So because law complicated by politics is always a heady subject, and the Israeli judicial and political system so complex and foreign to Americans who mistakenly assume it is similar to the American system we have today joining us from Israel, Yonatan Green, an Israeli legal scholar and the executive director of the Israel Law and Liberty Forum. Before welcoming him, I should clarify that the Israel Law and Liberty Forum is actually not affiliated with Law & Liberty, but is an independent project. But with that said, welcome, Jonathan. Yonatan Green: Well, thank you very, very much, Rebecca for having me and for that introduction. Rebecca Burgess: So the great Jewish philosopher of the 12th century, Moses Maimonides asked, “How long is it a duty to study the law?” And his answer was, “To the day of death.” Modern Israeli law and the modern Israeli judicial system are certainly complex enough for us to spend all of our waking moments examining and probing them. While the intensity of the protests about judicial reforms in Israel caught many, if not everyone in America off guard, those in the know in the legal profession in Israel have long seen a crisis coming from perhaps as far back as the 1980s, if not, from the founding of Israel in 1948. So before we get to today’s protests, what’s at stake with the reforms and what the Knesset just voted on, can you tell us a bit about your organization, the Israel Law and Liberty Forum? You’ve described it to me a bit like a Federalist Society for Israel. Why has Israel needed such an organization? Yonatan Green: Wonderful. Well, thank you very, very much. I will put on my hat as executive director of the Israel Law and Liberty Forum to answer your question. And then after that, I think I will remove it and opine as just an Israeli attorney and Israeli legal scholar. I should also say, as a sort of type of full disclosure, I am very soon to step down for my role as executive director of the Israel Law and Liberty Forum, which I’ve very happily done for the past and proudly done for the past four years. And that’s because this fall I will become a fellow at the Center for the Constitution at Georgetown University in Washington DC, some good and exciting news and also new and exciting changes also for the Israel Law and Liberty Forum, which are of course continuing full steam. It’s not like they don’t have what to do right now in Israel. So you asked why has Israel needed such an organization? And I think you correctly sort of link the question about our organization and that of the current legal crisis in Israel on a few levels. So our organization, the Israel and Liberty Forum, was founded in 2019 by the Tikvah Fund. And this is obviously well before the more recent storms relating to legal reform in Israel. And we advance a legal conservative worldview in Israel through community and discussion under the four core principles of judicial restraint, separation of powers, individual liberties and limited government. Where the Israeli FedSoc, so to speak, the Israeli Federalist Society in the sense that their community-based and discussion-based model serves as our inspiration. So like the FedSoc, we’re not a think tank. We don’t advocate for specific policies or decisions. We don’t issue policy papers, we don’t participate in legal proceedings, et cetera. We are like the Federalist Society in the sense that we are building our community of conservative legal scholars and practitioners, and we provide a platform for engaging in serious and sophisticated, thoughtful, conservative legal thought. Today, just to round up the question about our organization today, we have student chapters at Israel’s top law schools. We’re well known throughout the legal community and especially in the academic world. We have an online journal that’s been cited to by the Supreme Court and a whole range of additional projects. I should also say that we’ve been targeted five or six times, I’ve kind of lost count, by the Haaretz newspaper, which is Israel’s leading daily left-wing newspaper with a number of major articles about us. We’re very proud. Why are we needed? So Israel, I’ll say this and I’m sure we’ll get into the details in just a bit, but very generally, Israel has been dealing with a number of fundamental flaws which go to the core of our legal system. And you mentioned since the 1980s, partially since the founding of the state, and we’ll get to those examples. But at the same time, I should say the Israeli legal establishment and especially the law schools, have been dominated by a fairly uniform and homogenous worldview. And we can call this very generally this sort of activist or judicial supremacist worldview. And this is both in terms of theoretical jurisprudence as well, as well as regarding the specific issues and questions in Israeli law and government. And I could give just some very, very general examples. But if we’re talking about the role of the courts or the role of judiciary, so well, that’s to advance human rights or a particular set of liberal values, right? Sometimes in the teeth or in the face of the political branches. If we’re talking about what is democracy? Well that’s a set of liberal outcomes. Does Israel have a constitution? Yes, it’s fairly uncomplicated, straightforward answer. How do checks and balances work? Well, it’s mostly the judiciary and the court’s checking and balancing the elected branches of government, et cetera, et cetera. But with regard to these flaws, which again, I’m sure we’ll discuss at some length in a moment, large parts of Israeli academia and the Israeli equal establishment generally just don’t recognize their problematic nature or they’re unwilling to engage with these flaws in a meaningful way. So in law schools around the world, I think you’d expect to see a certain type of variety, even though, yes, in academia there’s often a sort of a tilt towards one direction, whether that’s the left or the liberal direction. That’s something that we see all over the world, but you still see a certain type of variety. And in Israel, this is almost non-existent. And to be clear, I’m not alleging bad faith for any of these actors. I went to law school, I’m born and raised Israeli, and also went to law school in Israel. And my law professors were excellent. And of course some measure of bad faith probably does exist, but this is really just a numbers game, meaning there’s a very clear division, I would say, within the legal world all over globally, which splits grossly into two camps. And in Israel, legal scholars and academics belong overwhelmingly to one side of that argument, I should say, not just to one side, but really to the sort of fairly extreme version of that side of the argument. If you were to place the weight that the average Israeli constitutional scholar, public law scholar in Israel, they’d be in American terms on this sort of constitutional law spectrum. They’d be somewhere between Laurence Tribe and Ronald Dworkin in terms of their jurisprudence, that probably characterizes a large part of Israeli public law scholars and I mentioned Tribe and Dworkin. These are two major influences on Chief Justice Aharon Barak, and we’ll get to him in a moment as well. So this intellectual homogeneity has all kinds of implications, right? Legal education in Israel is such that most graduates are exposed to only one side of the legal debate. This is to the extent that they’re often unaware that another approach even exists, let alone that it ought to be considered or that it may have any kind of merit. And this is, I think, where the forum and the crisis converge, meaning in terms of our mission, the forum’s mission of posing some kind of alternative, you end up with this sort of highly simplistic one-sided public discourse surrounding legal issues without the benefit of being enriched by sophisticated, thoughtful debate with more faithful representation of different legal approaches and arguments. Finally, this is a very long answer to your very straightforward question, the Israel Law and Liberty Forum is needed to provide both, I would say, safe haven for legal conservatives who don’t align with Israel legal orthodoxy, but is also needed to offer an intellectual alternative to the way law is taught, practiced, and thought about in Israel. And of course, this is in a respectful, serious, enriching, in-depth, professional way, et cetera. So that’s a answer your question very broadly. Rebecca Burgess: It just made me wonder, for the first time ever, how many law schools are there in Israel? I’ve never really thought about that before. Yonatan Green: I think on my last count there were about 13 law schools. They do sometimes open, close and sort of at a rapid pace. So there is maybe four or five, maybe six, depends how you count very good law schools, which are considered the best. Maybe the top two law schools would probably be Hebrew University and Tel Aviv University law schools, even though there are a few close thirds behind them. Yeah, Israel has a very, very large amount of lawyers. Probably some people claim that they have the most lawyers per capita than any western country. I don’t know if that’s true, but the last time I checked the number was around 172, meaning one lawyer per 172 citizens, and some have claimed in the Tel Aviv area, it’s 1.1 per 36. Again, I have not checked this. I don’t know if this is accurate, but Israel is a fairly litigious society and it has a great many lawyers. Rebecca Burgess: Got it. So Israel and Israeli politicians especially insist on referring to Israel as both a Jewish state and a democracy. Secondly, famously of course Israel does have a set of basic laws or basic law, but it has no constitution. And thirdly, Israel is a parliamentary democracy that uses an election system to the Knesset that renders majority government almost unheard of, and any government very difficult to hold together. So almost every government doesn’t quite come to term. It seems to me that these three things have all had a hand in creating today’s judicial crisis. There’s a history, there’s religion versus secularism, and there’s electoral politics. What is the there there that’s behind the current judicial crisis? Yonatan Green: Absolutely, Rebecca, first of all, you correctly, I think, identify some of the main contributing factors that make, I mean, forget the current judicial crisis, but just to make Israel highly sort of complicated and a volatile place in terms of its politics, in terms of its sort of social cohesion and other issues and prone to convulsions of different types. This is even sort of broadly about Israeli society and Israel’s system of government. And of course, we could point out a few others such as sort of ethnic or generational division lines. Obviously, the security situation and the Arab-Israeli conflict and all these other… There’s so many ingredients that added to this mix. But I think you definitely pointed to the main three. However, I do want to add one critical element to this mix when we’re talking about the current crisis in Israel. We are talking about a… You asked about what created this judicial crisis, and the missing ingredient here is the judicial revolution of the Chief Justice Aharon Barak led supreme court of the 1980s and the 1990s and after. And in many senses, I think this ought to be characterized as a judicially created crisis. And I’ll elaborate on that a little bit. I kind of want to kick that off with a quote. This is a quote that I like from 1996. This is from one of Israel’s foremost legal scholars, one of its greatest legal minds. This is chief justice of the Supreme Court Moshe Landau. This is retired chief justice of the Supreme Court, Moshe Landau. This was a speech that he gave after the landmark 1995 United Mizrahi Bank v. Migdal ruling, which we’ll get to in a minute. But that’s a ruling that recognized that Israel had a constitution and that ruled that the court had the power of judicial review over legislation, et cetera. And this is a quote from a speech that he gave, which was then published as a paper and a law of review. He said, “I tire of warning the reviewing the legitimacy of Knesset laws will inevitably drag the court into the arena of political controversies. This may cause…” And sorry, this is a rough translation. I continue to quote, “This may cause dangerous damage to the general public trust, which is the basis of the solid stature the court enjoys today. The call to expand the court’s authority deriving from the same complete trust may turn into a bear hug for the court itself. Exalting…” This is the last sentence. “Exalting the court’s power as a senior legislative partner will encourage the call for changes in the judicial selection process in order to turn the Supreme Court into a pseudo mini Knesset.” I ended the quote there. He has many, many wonderful sentences there where it’s a scathing attack on this very recent ruling. And that in itself is extremely unusual for a retired Supreme Court chief justice to come out so bluntly against the ruling. And that gives you sort of a hint about how this ruling was received at the time. But the reason I’m saying this is because this was, in many senses, this crisis is something that was in many ways, I think both forced and foreseeable, meaning even those in the 1980s and 1990s who identified what was happening in the Israeli Supreme Court knew to warn what the likely result would be. And I think in many senses, at least in some senses, we’re seeing some of those results today. So to give a little bit more context or a little bit more background about why I think that is, you mentioned, right, 1948 Israel’s founding, Israel did not enact a constitution when it was founded. We can get into the background about that a little bit later. But from 1948 until the 1990s, Israel was a UK style parliamentary democracy with legislative supremacy. And I like to say wars and all, that has its benefits, it has its drawbacks. This…

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    The Term in Review Jul 20, 2023
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    John O. McGinnis joins host John G. Grove to analyze the major cases from the Supreme Court’s recently concluded term, which has taken place in the midst of a concerted effort to undermine the institution’s legitimacy. Brian Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. John Grove: Welcome to Liberty Law Talk. I’m John Grove, the managing editor of Law & Liberty, and I’m your host for this episode. Last year, the overturning of Roe v. Wade seemed to symbolically declare a new era at the Supreme Court. To its critics, it marked a sharp right turn as Republican appointees exerted greater influence. The court itself and its defenders argued on the contrary that it was exhibiting a renewed reliance on written law, enforcing the constitution and statutes rather than this or that moral theory or preferred policy. This year the court continued to take on highly controversial cases, most importantly rejecting affirmative action programs and college admissions as a violation of the Equal Protection Clause and finding that state non-discrimination laws cannot coerce expressive speech from public-facing businesses. Left-wing critics continued to present these developments in terms of partisanship and ideology rather than law, and they’ve increasingly begun to build a narrative of illegitimacy, perhaps in preparation for renewed court packing push. Joining me to talk about this year’s monumental term and the political narrative swirling around the Court is John McGinnis. John O. McGinnis is the George C. Dix professor in constitutional law at Northwestern University, and he’s a contributing editor at Law & Liberty and, of course, one of the country’s most renowned experts on originalism. John, thanks for joining us. John O. McGinnis: Delighted to be here. John Grove: Well, it seems to me that for those of us who don’t buy the idea that the Court is simply a partisan actor, this term further solidified several of the tendencies that you and I talked about last year on the podcast, originalist, textualist, and non-deferential when it comes to administrative actions without clear statutory authority. What were your thoughts on the term? John O. McGinnis: Well, I think it was a very important term. In some ways, I think it may have been a more important term than the term in which Dobbs came out. If you look at stepping back from the reasoning of the court, which I’ll discuss in a moment, if you look at the cases it decided, they really go to the heart, I think, of the fault lines of the modern society. Nothing I think is more important than the question of whether we’re going to address people as individuals without regard to their race or treat people as with different rights or different preferences with respect to the racial group they’re in or some other form of group like that. And the court was very emphatic and in the most important area that we’re going to have a colorblind society when it comes to education. Secondly, the importance of descent is extremely important in a republic, and that, I think, is central to the creative case, the web designer case, where the center, who really did not have the power of someone connected to the media, was able to follow their own ideas. And so that’s also very important. And then finally, I think you have to understand the student loan case, Biden v. Nebraska, was an important separation of powers case. This goes to the heart of the changes, I think, that have been happening in our structure of governance, where the president has more and more authority generally in administrative law, where administrative state, and where he operates without Congress through regulation. This was an attempt to operate without Congress through spending, essentially spending $400 billion dollars without congressional blessing. And that changes the whole structure of the government. So another way of thinking about this is that it may be a term in which the Court protects what William Graham Sumner called the forgotten man, the person who’s really not a part of some organized group. Of course, that’s true with respect to student loans. Who’s that going to hurt? It’s going to hurt taxpayers, it’s going to help a very specific group, and political scientists understand that our modern democracy often helps concentrated interest groups versus diffuse groups. It also, I think, is very similar to with respect to the affirmative action case or the racial preference case. Actually, the very organized groups who are arguing for preferences and the people who lose out from them are quite unorganized. In fact, it’s very unclear who exactly they are who doesn’t get that slot at Harvard or UNC. And the third issue I think is also true is I’m reminded all the time we now have a structure where… and maybe understandably, certain rights are proclaimed all the time. We have my daughter’s classes—even though she’s only in first grade, there’s a Pride Day. On the other hand, there may be some people who don’t agree with that. And how are they going to dissent from things like same-sex marriage? How is that going to be a space for them to do that? So that’s one way I would think of this Court more in this term, more in political science terms than legal terms, that it raises this question of the Court as, in some sense, a defender of the unorganized versus the organized. And you might think that’s an important role in a political science sense for the Court because, after all, organized groups do very well in the political process and maybe even in the administrative process. They can succeed so long as people cannot get a vote on it by the public—they can concede with legislatures to get things for what they want. So that’s what I see the most—I see it as a very momentous term in that sense. I think it was less important as a term for originalism, the affirmative action case, the web designer case, the student loan case. These were really rather doctrinal cases, at least as they were presented. There were some concurrences that were originalist in nature, and we certainly can talk about that in terms when we get to the affirmative action case. But I don’t see this as primarily a case about originalism. Moore v. Harper had some discussion of originalism. I think there’s some importance there, particularly in understanding the legal backdrop to words in the Constitution. So I think that’s significant for that. But I do not see this as breaking a huge amount of ground for originalism as much as going back to certain structures and certain long-term precedents—at least the Court is relying on long-term precedence for defending this idea, I think, of a liberal order where Congress has to act, where people are treated as individual, where their rights are dissented. These are very long traditions in the United States, and not surprisingly, they’re represented by a whole variety of judicial precedents. That’s not to say that I don’t think some of them are consistent with the original meaning. It’s just not that the Court, I think, made the decisions on the basis of original meaning. John Grove: Right. Yeah. That’s a really interesting way that you described the term in terms of the unorganized or the harms or potential harms to people who are not part of a powerful political group. So who’s left out of admissions? And I had not thought of the student loan case in that way, but that’s a really interesting way of putting that, too, in that you have a very clear political class or political unit of people, student loan holders who are going to be very animated in the political process. But then in relieving those loans, you kind of distribute the burden to that across a wide group of people who are not going to be very organized and active in the political process. So that’s an interesting way of putting that. So let’s dive into these cases specifically. So let’s talk, of course, about the biggest one of the year first. That’s the affirmative action case, Students for Fair Admissions v. Harvard and UNC. So this one, you’re right, the people who are left out of admissions in some way unorganized, the emphasis here, the people who brought the case, a group representing Asian-American students because statistically speaking, you can identify that a lot of the people that are left out because of affirmative action programs were Asian-Americans. They challenged the affirmative action programs of Harvard and the University of North Carolina. And what’s the legal background of this challenge? So what had the Court said before about what consideration of race was permissible, and why did the Court change its mind? John O. McGinnis: Well, the Court had a torturous set of decisions, tortured in the sense that moved back and forth. But the essence of it was that, in general, race, the Court said was disfavored, but it could be taken in account to promote what was called diversity given a plus factor or a tip as it were, so long as it didn’t lead to quotas. Now exactly, the line between quotas and a plus factor was not entirely clear. And as the Harvard case demonstrated, there seemed to be a surprising uniformity of year after year of the percentages. So it did seem to be engaged in sort of racial balancing or quotas, but that’s actually not the… so that was really the law at the time. The other important point was that the law noticed that there were two cases here, one against the state institution, one against a private institution, did not actually depend directly on the Constitution because private actors can violate the Equal Protection Clause. What had happened, though, before is to gather with this idea you could go to diversity but not the quotas. The way they got this through the law was they interpreted the Title VI, which prohibits discrimination. Despite that rather clear language, they understood it, or at least a majority of the Court understood it to track the Equal Protection Clause. You might wonder, well, how that could be the case. Equal Protection Clause doesn’t sound like a clear prohibition against discrimination. It’s about the equal protection of the laws. But that’s the way the Court had interpreted it. And that’s the way the Court decided the case. They did not revisit the statutory interpretation in this case but said, “Well, we’re accepting that Title VI follows the Equal Protection Clause, and therefore we’re going to make an Equal Protection Clause holding.” That actually, of course, made the case more dramatic because that meant even as with respect to state institutions, Congress couldn’t change the result in this case because it’s now part of the Equal Protection Clause. And, of course, generally, the Court tries to avoid constitutional holdings. So I may speak a bit about that. I’d be happy to talk about it. I’m sort of rather critical of the Court’s failure to simply interpret, I think Title VI according to its terms, which would avoided the constitutional difficulty. John Grove: Right. John O. McGinnis: Nevertheless, it made an equal protection holding that diversity that, well, not explicitly overruling Grutter, suggests that the reasoning of Grutter was almost self-contradictory by saying that… a few things saying that one, that necessarily admissions was zero-sum. And so you always were discriminating against others, and that violated what’s called strict scrutiny. You have to have very compelling reasons, and that this goes to the core of getting equal protection is not to have something be determinative, and race could be determinative of your chances, your opportunities. So that was one of their holdings. And then also, I think very importantly, it said that this necessarily engaged in stereotypes because the whole idea of diversity meant that you thought that an African-American or Hispanic student was bringing something distinctive to their race. And, of course, it might well be the case that someone who grew up in a town was very wealthy, African-American, grew up with a lot of… in a very integrated town, what different perspectives they have actually from their white classmate who grew up also in that town. And the stereotyping is a great danger. And finally the Court was helped by one of its most famous precedents, Grutter, who said, “Really this is going to be temporary and it’s going to be 25 years.” We’re almost to the end of that 25 years by saying, “Well, Harvard and UNC had no intention of ever stopping this. They had no timeline.” John Grove: And they of course came back and said, “Well, it was 25 years and it’s only been what? 20 years or something like that- John O. McGinnis: But the difficulty was they had no… that there was no suggestion. In fact, they were asked their oral argument, “Well are you going to stop at 25 years?” And it was pretty clear that they were not. They weren’t just looking for a 40 year reprieve as it were. John Grove: Right. So is it fair to say basically the Court here, strict scrutiny typically requires you have to have a compelling government interest and it has to be narrowly tailored. The Court basically kind of just said it’s not clear that these programs are even tailored at all to achieve diversity. It’s really just… it’s, as you said, it’s racial balancing. John O. McGinnis: And I think it was not clear that they thought even that diversity was going to be compelling, at least in the context of which the Court… at least as it was practiced, maybe it could be practiced in some other way. But they also went in interestingly, following a very good book by David Bernstein showing that the categories were extremely arbitrary. Some people didn’t get… and so Middle Eastern people didn’t get a tip and yet they might bring some kinds of diversity here. So I think what they showed that whatever you thought about diversity, that these was incoherent. It was very unclear also, they could make it coherent was one of the things they said about strict scrutiny is you have to have clear metrics so we can measure whether you’re accomplishing your goals. And there were no clear metrics. And I think it’s very unclear after this case whether, I think that’s unlikely that universities could come back with clear metrics on diversity. In any event, they also have this time restriction that I think makes it very impossible, I think for universities to think they can revive this. Now universities, we can talk about that, some may try to have a move to kind of sub-diffuse, try to avoid the rules here. John Grove: Right. So that’s been one of the big questions people have asked since this decision is, “Was the door left open a crack in some way for universities to kind of craft sort of…” In some ways the Court said, “We’re not saying you can’t consider racial experiences,” or something- John Grove: Consider racial experiences or something like that, people at somebody’s engagement with racial questions. But at the same time they also said you can’t just create the same system using different language or something like that. John O. McGinnis: Right. John Grove: So what do you think? Do you think the door is open for a slightly revised version? John O. McGinnis: Well, I think the Court is right. I mean you’ve got to be able to consider people’s individual circumstances and that may involve their circumstances to do with race. But the Court also says, well you can’t do indirectly what we’re forbidding you from doing directly. So I do think what some universities will try to do indirectly and we’re likely to see follow on litigation about that. But I’d be skeptical that they’ll succeed in this, there’s a six three majority decision. The Court seems very emphatic, everyone signed on to the chief’s opinion although there were important concurrences. So I think the universities… And then I may come back to…

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    The State of the West Jul 14, 2023
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    Douglas Murray joins Law & Liberty Senior Writer Helen Dale to talk about the state of racial discourse, national conservatism, and his recent book, War on the West. Brian Smith: Welcome to Liberty Law Talk. This podcast is a production of the online Journal of Law & Liberty and is hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. Helen Dale: Welcome to Liberty Law Talk. My name is Helen Dale, and I’m Senior Writer at Law & Liberty. With me today is Douglas Murray, Associate Editor of The Spectator and author of seven books, including The Strange Death of Europe, The Madness of Crowds, and the subject of part of today’s interview, The War on the West. Thank you for joining me, Douglas. Douglas Murray: It’s a great pleasure to be with you, Helen. Helen Dale: Without wanting to pin the conversation down the way an entomologist pins insects in a display case, the following questions came to mind when I was reading The War on the West and also covering the UK National Conservatism Conference for The Australian and for other outlets, at which you spoke: while reading the first third of the book, broadly speaking, the race and history sections, I became increasingly alarmed by what seemed to me to be genuine anti-white racism, and by way of throat clearing, letting you know that I’m really quite reluctant to use that phrase. However, and I’m afraid this did involve taking photographs of pages and sending them to an academic friend who specializes in the relationship between ideology and genocide, and the material you cite is nothing short of monstrous. My friend argued that if you draw attention to racial distinctions and then assemble them in a moral hierarchy, you have racism. We then went on to discuss how other classic genocidal tropes include depicting people as vermin, parasites, or disease, and I have to say, I think it’s fair to say that you’ve unearthed plenty of that in the first part of The War on the West. Both my academic friend and I are familiar with the film you discussed, Single White Men. At the time it came out, we both thought it tended to fall into the same category as Jewish comedians telling Jewish jokes or Chris Rock’s routines taking aim at aspects of African-American culture that would be off limits to others. It’s possible, too, that Karl Marx can be excused for some of his comments about Jews because he was himself Jewish. However, the great bulk of the anti-white material you discuss is not funny or attempting to be funny, and often it’s also directed at whites by non-whites. How serious is this anti-white racism? And depending on your answer to that first question, what is a reasonable public response? Douglas Murray: I think it’s very serious. It’s the only permissible racism in our day. As I try to show in the opening chapters of The War on the West, there is almost nothing that you cannot say about white people as white people, up to and including saying that the world would be better off without white people and that something should be done about that. By contrast, almost every other form of racism against any group of people is understandably and legitimately regarded as being effectively reputation-ending, if not career-ending. You can’t go about saying things about people who are black if you’re not black. And by the way, the example you give of, as it were, a black comedian saying things about black people bit, Dave Chappelle, and so on, even that is effectively innocent fun. Michael Moore, who you mentioned, I cited as an example of this going back some way, this sort of anti-white racism, by contrast, says things like, “Every problem in the world, look at it and behind it you’ve got white men,” just every single problem in the world, every genocide, every war, every battle, every ugliness is all to do with white people. Obviously, as I mentioned in the book, Michael Moore is one of those who doesn’t realize that other people have agency and can muck up the world and their own countries in their own ways, and he’s obviously never heard of numerous countries, including North Korea. Helen Dale: Well, there’s part of me that wants to say that Genghis Khan is on the line and would like a word. Douglas Murray: Yes, exactly. So, there is something different about this in the tone of the claims being made and the simple way in which it’s waved through. Universities are somewhat over-cited in these arguments, perhaps, but they do matter, and I can use it as an example: if somebody stands up at a university and says that Jews are responsible for all the problems in the world or black people are responsible for all the problems in the world, they wouldn’t be invited back. They certainly wouldn’t be a member of the faculty. By contrast, as I give the example of numerous academics who say this about white people, are often not white themselves and draw the most negative possible conclusions and, at least one case, as far as I can see, calling explicitly for violence. I think the problem with this is that it’s grown up under our noses, and it’s the result of a couple of things. One is something I’m fond of using as an analogy, but simple overcorrection. There was undoubtedly racism in the past. There certainly is racism. Racism exists—it’s one of the ugliest traits of the human species, effectively in out-group dynamics. It’s almost certainly ineradicable, but it’s certainly also able to be diminished; it’s able to be made societally unacceptable. And because there was acceptable racism in the past in countries like Australia, Britain, and America, there seems to be some sort of overcorrection that says, “Well, because there was racism against these groups in the past, we can make up for it by being racist against the people who were thought of as being the racist people.” Helen Dale: I found that description of the US. Was he a four-star general? I can’t remember. Yeah, and he’d not heard it before. You had, and I had heard this before. And then he was just sitting there because this was a number of years ago. Was it 2011 or something? Douglas Murray: Yeah, around then. He said to me, as somebody said to us on stage, “It’s just two white men speaking.” I’d heard that kind of rhetoric before, but the general who was on my side, the American general, had not, and from his point of view, it was very shocking. I was immune to it already, but I think his point of view was, “But I’m a four-star general. I’ve been in charge of operations in Afghanistan most of my life, for years, and worked in the military for years, and been everywhere around the world, and Douglas Murray sitting beside me, is younger and has had totally different experiences and has done very different things, so how do we become just the same person in the eyes of this other speaker other than if you want to pretend that you can sum up everything about a person in their race?”, and that is racism. It’s a minor example of it, but again, if somebody was to be on stage and just say, “Oh, that’s just two brown people talking,” and- Helen Dale: It’s the moralized hierarchy that my academic friend was saying. That, he said, is what’s particularly dangerous. Lots of societies, he was saying, have noticed that people look different and they have different temperaments and characteristics. The Greeks and Romans, who didn’t attach much importance to color, noticed this, but they never put it into a moralized hierarchy, and that’s the danger. Douglas Murray: Yes, and there are several different aspects to that, of course: one is the people who you put at the bottom of the hierarchy effectively now, which is to say white people about whom you can say anything. But the inverse of that is the interesting phenomenon of attributing special characteristics that are benevolent or blessed to certain other groups. My friend Coleman Hughes, distinguished black American writer, a distinguished American writer who happens to be black, in one of his first essays, mentioned the fact that at university in America in recent years, some of his contemporaries who were white treated him as though there was something special he knew or some wisdom he especially had by dint of his racial characteristics. Well, that’s also a form of racism. Helen Dale: It’s the inversion of the “magical negro” trope. Douglas Murray: Yes, it’s as if you’re saying, “In the past, we attributed negative characteristics to this group. Now we will attribute positive characteristics to this group.” Neither is particularly desirable, it seems. Helen Dale: How do reasonable people, both commentators like you and I, and ordinary members of the public fight back? If it is this serious, this dreadful rhetoric, how do we fight back? Douglas Murray: It has been the norm in our societies that people defend their ideas, particularly if they are inflammatory ideas, in public. We have to find a term for this type of person in our day who throws out unprovable or rather provable lies but who will not defend them in public and just sort of runs away from contests. Well, I think people just have to call it out whenever they see it, which is how racism of all kinds has been diminished in the past. You make it societally unacceptable. How was racism directed toward other groups diminished in the past? By law to some extent, but more significantly by societal approbation and much else about people speaking in particular ways. I think that let’s say if somebody said something that was racist about somebody of a non-white skin color near you might call it out, and you might also, more likely you would, never want to be near that person again or in their orbit. I would simply suggest it would be the same with this: people shouldn’t wish to be around people who like demeaning people by their racial background, whatever that background is. But I think that it requires a slight change of emphasis at the institutional levels in our countries, which is that this is not acceptable; it’s not an acceptable way to talk. And that when you have a race-baiting academic, like one particular person who I won’t name at Cambridge University, who- Helen Dale: Oh, I’m well aware of who you are talking about because this particular individual teaches at the College where my partner went and is a source of irritation in this household, and it’s why my partner’s donations to her old college have dried up. Douglas Murray: Oh, I’m pleased to hear that. That’s the sort of thing, and I hope she said that that was why. Helen Dale: Yes. Douglas Murray: Because it is very important that if you have an academic in a position of authority and of influence over young people, that that person is not allowed to pollute the public square by making race-baiting accusations against all white people, any more than it would be if that person used their platform to say nasty things about black people. I would throw one other thing into the mix if I can, Helen, which is the oddity in our day of a certain type of person we would’ve called public intellectual in the past who doesn’t deserve that term today because they don’t defend their ideas, but who throw out highly ideas about race and then will not defend them. I’m thinking specifically of people like the white author of White Fragility, Robin DeAngelo: she does not put herself forward for debate or discussion, or interview. And she throws out extraordinarily incendiary claims like the claim that white Americans enjoy seeing black bodies being punished. Helen Dale: And that’s just a mess of Foucault in there as well. As soon as you see that, “bodies,” word, that’s just a giveaway, isn’t it? Douglas Murray: Yeah. But when somebody like her and I would add in somebody like Ibram X. Kendi, author of How to Be an Anti-Racist, he throws in extraordinarily nasty generalizations and just will not defend them in public, says, “I refuse to give a platform to anyone who criticizes me.” As I say, it has been the norm in our societies that people defend their ideas, particularly if they are inflammatory ideas, in public. We have to find a term for this type of person in our day who throws out unprovable or rather provable lies but who will not defend them in public and just sort of runs away from contests. Helen Dale: Conversational coward comes to mind, but I don’t know whether that’s particularly adequate. Your section on reparations and discussion of Ta-Nehisi Coates’ desire to emulate the postwar reparations Germany paid to Israel actually sent me down a reparations rabbit hole. I discovered there have been enormous and ongoing difficulties in Israel administering reparation monies and also widespread corruption. When the original Konrad Adenauer-David Ben Gurion agreement was entered into in 1952. There were riots outside the Knesset, an extremist attempted to bomb Israel’s foreign ministry building, and a parcel bomb was sent to Adenauer, killing one of his police bodyguards. The spark for the riots and the terrorism was the argument that, as when damages or other remedies have been awarded at trial, a line must then be drawn under the dispute. Lawyers actually have a technical term for this, it comes from Roman law; it’s Res Judicata, literally, “The thing is decided.” Now, Ben Gurion considered that Res Judicata was necessary for Israel to move forward and to move on, but about half the country disagreed with him and still does. Relatedly, the Claims Conference, which was one of a number of organizations both within Israel and outside it, administering reparations, has been plagued with corruption and maladministration. A distinguished Jewish Australian, the late Isi Leibler, pointed out that the organization’s big-wigs were earning vast salaries while actual known Holocaust survivors around the world were being paid less than the Israeli state pension. In 2013, the Conference’s funds director was jailed for eight years for his part in a US dollar $57 million fraud. This is the only reparations regime on foot anywhere in the world, and we all know what happened with the reparations regime flowing from the Treaty of Versailles, of course. How does one go about getting it across to people just how difficult and morally complicated this is, even when the history is relatively recent and claimants can be identified? And as a follow-up to that, are there good silver bullet arguments against reparations given the German-Israeli experience? How useful are legal concepts, statutes of limitation, and Res Judicata here? Douglas Murray: It’s a very interesting and deep area, which is one of the reasons why I wanted to address the reparations argument because it’s been treated so lightly in recent years, particularly in America. The example of the Ben Gurion-Adenauer agreement is one, and of course, as I say, it happened within a few years of the Holocaust, and there are deep moral and other arguments to be had about that agreement. But if, in the case of reparations to the descendants of slaves, anyone thinks that reparations is a good idea, and an increasing number of people seem to think it is, you are no longer talking about anyone alive who has any memory of the thing being done or of doing the thing, and that throws up very deep organizational issues apart from anything else: who in the American context is deserving of money and who should pay the money? This is not a theoretical discussion anymore. Gavin Newsom, the governor of California, recently set up a committee to look into reparations in California, and it reported back recently that black Californians who were descendants or potential descendants of slaves should be paid, I think a couple of million dollars each. And others have come up with much higher sums of money that should be paid. There’s, as I say, much to be said because, among other things, you are no longer really talking about people who have done a wrong paying money to people who are wronged; you’re talking ab…

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    The Founders' Intellectual World Jul 07, 2023
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    Justin Dyer and Kody W. Cooper join host James Patterson to discuss their recent book, The Classical and Christian Origins of American Politics. Brian Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. James M. Patterson: Hello and welcome to Liberty Law Talk. Today is June 7th, 2023, and I’m your host James M. Patterson. I am a contributing editor to Law & Liberty, as well as an associate professor and chair of the politics department at Ave Maria University, president of the Ciceronian Society, and a fellow at both the Center for Religion, Culture and Democracy, and the Institute of Human Ecology. My guests today are Dr. Justin Dyer and Dr. Kody W. Cooper. Justin Dyer is the Executive Director of the Civitas Institute, a Professor of Government, and the Jack G. Taylor Regents Professor at the University of Texas at Austin. Dyer writes and teaches in the fields of American political thought, jurisprudence, and constitutionalism with an emphasis on the perennial philosophical tradition of natural law. He is the author or editor of eight books and numerous articles, essays, and book reviews. His books with Cambridge University Press include CS Lewis on Politics and the Natural Law, Slavery, Abortion and the Politics of Constitutional Meaning, and Natural Law in the Anti-Slavery Constitutional Tradition. And there is a co-edited volume of a two-volume constitutional law case book, American Constitutional Law, with West Academic. Dr. Cooper is an assistant professor of political science in 2016. Have you been promoted, Kody? Kody Cooper: Associate, yeah. James M. Patterson: Associate now, listen to this. Prior to coming to UTC, Professor Cooper was a post-doctoral fellow at Princeton University and at the University of Missouri. He is the author of Thomas Hobbs and Natural Law on the University of Notre Dame Press in 2018. And together, they are the authors of the book under discussion today, The Classical and Christian Origins of American Politics: Political Theology, Natural Law, and the American Founding, published in 2022 by Cambridge University Press. Gentlemen, welcome to Liberty Law Talk. Justin Dyer: James, thanks for having us. Kody Cooper: Thank you. James M. Patterson: So let’s start with an easy question. Did the United States have a Christian founding? Justin Dyer: Kody, you want to take that one, that easy right off-the-bat question? Kody Cooper: Well, I think in the book, we try to make the case that there is a Christian philosophical tradition that influenced the ideas of the founding. So you can distinguish senses in which the Founding was “Christian.” And I think that Mark David Hall’s work here is pretty helpful. It’s not necessarily the claim that each individual Founder was an active member of a church or was a devout Christian or something like this, or that Christianity was officially established as a national religion. That’s not what the claim is, but the claim is that the natural law tradition that was sort of housed within and carried forward within Scholasticism and Christian thinking has a real influence on the Founder’s ideas. Justin Dyer: And James, I actually, I like the way that you phrased the question—of whether America had a Christian founding, and that’s the way that Mark Hall phrases the question too. And it separates it from the question of whether America is a Christian nation, and that’s the one that we are used to talking about and debating publicly in the United States, whether we’re in some sense a Christian nation. And our thesis is something different than that, much closer, I think, to how Mark Hall talks about America having a Christian founding, and it’s that the ideas that go into the American Founding and structure, its political categories develop out of a Christian tradition. And the title of the book is The Classical and Christian Origins of American Politics. It points to both the classical ideas that influence the American Founding, but also point to the Christian context in which those ideas are passed forward and are adopted within the American Founding and structure. How we think about categories of constitutionalism and revolution and politics, sovereignty, and a lot of this gets bound up with the classical natural law tradition as we see its influence in the Founding. James M. Patterson: So we see a common refrain that the United States has a Lockean liberal founding. We see this celebrated and criticized on the right, and we see it celebrated and criticized on the left, but this has been a consensus view within scholarship on the American Founding. And what does this story miss? What does it not get? Justin Dyer: I think for a long time, we all talked about John Locke’s influence on the American Founders and assumed something specific about that. And as you mentioned, this can go in either direction, but for the interpretation, this is within scholarship, the interpretation was that Locke was subtly subversive of traditional Christian faith, and also of classical ideas about natural law and about sovereignty. And so to say that we had a Lockean founding was to say that we were distinctly modern in some sense, and it was a modern break from a classical and Christian past. That could be celebrated, and it is in some quarters, that could be bemoaned, and it is in some quarters, but that was a common consensus for a while in the scholarship. And I think people are rethinking that. And there have always been people who have challenged that thesis. One of the scholars that you know James, Kody, and I read in preparing for this book was Donald Lutz. And he has a wonderful article in the American Political Science Review back in the 1980s where he does a sample of political tracks published in the Founding-era. He goes from 1760 to 1805, he takes out of this sample political sermons, and so he is looking at political arguments in the Founding-era. And when he looks at the sources, he finds that the Bible is cited more often than all of the Enlightenment sources combined, including, of course, John Locke, and the book of Deuteronomy, in particular, is the most cited text in all of the political tracks. And so there’s a way in which our focus on John Locke, to the exclusion of all of these other sources, has given us a skewed vision of the sources of American founding thought. And in this book, we’re trying to highlight once again something that people have known for a long time, which is that there are other sources, and those classical and Christian sources are at least as influential, if not more influential, and that’s what our argument is in this book. Kody Cooper: And I would just say maybe a little bit more about how to interpret Locke is maybe part of what’s contested here is, is Locke a theistic natural law thinker, or is he more of a subversive thinker in relation to the theistic natural law tradition? And we make the case in the book that, and this is, it’s not super fleshed out, but it’s part of our argument that Locke’s best interpreted as a theistic natural law theorist. And part of our argument there is trying to make sense of his theory of property. And we argue that his critique of Filmer doesn’t make any sense if you take God out of it. Justin Dyer: Yeah, I think one of the things is it’s not the case that there’s a hard dichotomy between, say, Republican sources on the one hand and liberal sources on the other, and then Christian sources as though it’s something separate from that. Part of the argument is that this whole context in which the debates take place in the Founding-era operate within a Christian frame and a frame that develops out of this long Christian engagement with the classical tradition. And so what you get is, of course, a John Locke who is engaging with scripture and is himself making arguments that are within the fullness of that debate. And so I think one of the things we need to do is take a fresh look even at those sources that we had categorized as one thing or another in this whole debate about Founding-era political thought, and recognize the degree to which people were still moving within a system of thought that had been structured for a long time by Christianity and Christianity’s engagement with classical philosophy. James M. Patterson: Yeah, the Lutz article is The Relative Influence of European Writers on Late 18th Century American Political Thought. I want to thank you for shouting out Donald Lutz, he was a great professor, I learned a great deal from him at the University of Houston. So what are the principles, the big ideas that you examine here? We have the ideas I see in the book on Providence, on the idea of God’s sovereignty. What are these various ideas operating as a kind of intellectual frame or foundation for the various people responsible for the American Founding? Justin Dyer: One of the things we do in the book is we try to give a fairly specific set of ideas that we would consider classical and Christian, and classical and Christian in the sense they develop out of this older tradition, and set apart from what it would mean to be distinctively modern. And so we have a set of 10 different ideas, and I think for this audience, for Law & Liberty, hopefully, they’ll allow me to go through and talk about those ideas, because they’re technical, but they’re important for how we understand what’s going on in the Founding. And what we do is we give us a set of 10 things we think would be classical. And if we compare then the Founding era primary sources to this set of ideas, we find that overwhelmingly they are operating within this classical framework rather than a modern one. So going to that, it all has to do with the natural law tradition. And I’ll go through this quickly, we can talk about it, but I think it’s a good way to set up what our argument is. The first is that natural law has a law-giver, that as they understand the natural law, they also understand it to be coming from a law-giver, and that the law-giver is the divine creator, and the divine creator is separate from and distinct from creation. And so nature’s not divine, we’re not pantheists, we believe in creation. Within that framework, then, it helps us to make sense of things like our practical reason, our ability to reason about the natural law, which helps us identify goods that are proper to human beings, helps us to then figure out how to pursue those goods in our lives through practical reason. The natural law, this way of thinking about the goods in our lives and how we achieve those in action, is prescriptive, meaning it imposes a moral obligation on us. It’s not just descriptive, it doesn’t just describe, if we want X, then we do Y to get it. It’s not just an observation about the world, but there’s actually a sense of moral obligation. And that moral obligation emanates from the nature of God. And the nature of God, this theological question of God’s nature, unites power and goodness. And that sounds like a technical theological question, and it is, but it’s one that the Founders were aware of and that they wrestled with, and that they distinctively came down on one side of that equation. They said that God’s sovereign authority is one in which moral obligation is grounded in his goodness and his power. And so, obligation doesn’t come just from God’s superior physical strength alone, but it’s connected to his goodness, and they drew an analogy between this theological concept and the political concept of sovereignty. So they said that sovereignty in a rightly ordered political community is modeled after this pattern of divine sovereignty, and so you have to unite power and goodness together. Power alone could never confer sovereign authority. And so this helps us make sense of the idea that might does not make right. That the rule of law means that the sovereign is subject to and bound by a higher moral law, and that higher moral law binds even the democratic sovereign. Justin Dyer: That higher moral law binds even the democratic sovereign, even We the People. We are bound by this higher moral law. And so even when sovereignty resides with the whole people, as they argue that it does, we still have recourse to and reference to something higher than human will alone. It’s not simply human will that determines what’s right in politics. And then this last part, which you had mentioned already about providence, and which is crucial for their framework in understanding this, that God sustains and provides for His creation both through this natural law, as we were talking about, and through exercises of divine providence that include divine revelation in Scripture and divine inner positions in human events. And you see echoes of that throughout these Founding-era sources. And then this last aspect, natural law, is part of God’s providence. And so reason, which is distinct from revelation, is nonetheless part of participation in God’s eternal law. And this is a very classical idea. It’s one that they got from a lot of the sources that they were reading and that you find in a lot of these Founding-era pamphlets and debates and James Wilson’s lectures on law in some of these other sources. And so those 10 things that I had just mentioned become the standard by which we can then evaluate Founding our sources, whether they’re classical or not. And the modern or the distinctively modern interpretation would do something that’s 180 degrees from that. You would have natural law without a lawgiver. You would have reason opposed to revelation and not compatible with it. You would have sovereignty founded on will alone and power being the thing that rules, and no unity of power and goodness because goodness is merely a subjective concept. And that constellation of ideas we find in interpretations of Thomas Hobbes in the Founding, and we just give it a label, which is the label that people used for it in the late 18th century. And it was Hobbism. And I’ll let Kody talk a bit about that because he’s really the expert on Thomas Hobbes among the two of us, but this idea that America was Hobbesian is one that you do find in the scholarship and that we just don’t find any evidence for in our research. James M. Patterson: Kody, do you have any insight on, is it Hobbism? It sounds like Hobbitism, which I don’t think Thomas Hobbes would favor. Kody Cooper: Having in the past written a book about Hobbes, in which I stake out an interpretation that is, shall we say, a minority view. Part of what we want to say in the book is that to accept our argument, you don’t need to agree or disagree or even have a view on or even read what I’ve written before about Hobbes. But just as a historical matter, there is a tradition of reading Hobbes in a certain way and along the lines that Justin just laid out, a sort of voluntaristic view of Hobbes, merely instrumentalist view of reason, that morality is radically relative, subjective, justice is entirely conventional, all that sort of thing. And so we just use the label Hobbist, which is a historical label, but also to differentiate it as a concept from… It at least leaves open the question of whether Hobbes himself really is correctly understood in Hobbist thinking. We just bracket that question. James M. Patterson: So there’s an element to this book that I appreciate, which is that it reveals that in this milieu, this Christian culture, in which there are people of various devotions and different denominations, not a specific agreed upon set of principles, but rather a kind of consensus based on negotiation and deliberation. And I was wondering if there are some tensions with other readings from this period. I think Vincent Phillip Munoz tries to create a synthesis out of Madison, Washington, and Jefferson in his book God and the Founders. And I hav…

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    The Life of Leadership Jun 21, 2023
    Show notes

    Hugh Liebert joins host Rebecca Burgess to discuss statesmanship, from Plutarch to Kissinger. Brian Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org and thank you for listening. Rebecca Burgess: Hello and welcome to Liberty Law Talk. My name is Rebecca Burgess. I’m a contributing editor at Law & Liberty and a visiting fellow at the Independent Women’s Forum. With Memorial Day upon us and the 50th anniversary of the all-volunteer force this June, now seems as appropriate time as any to talk about military and political leadership via Henry Kissinger’s latest book, appropriately titled, Leadership: Six Studies in World Strategy, and a different work that his title hearkens back to, Plutarch’s Parallel Lives. And because Kissinger, perhaps today’s most recognized American statesman, began his career in public service, so to speak, by serving in the US Army in World War II, who better to join me today in this discussion than Hugh Liebert. Professor of American Politics in the Department of Social Sciences at the US Military Academy. Welcome to the show, Hugh. Hugh Liebert: Thanks, Rebecca. Thanks for having me. Rebecca Burgess: Great to have you. I thought I would begin this discussion by asking you … Because you also direct West Point’s Graduate Scholarship Program and no doubt have many different talks about character and leadership with future officers. What does Kissinger have to say to these students about the core of leadership, what it is and where we go to find its parts? Hugh Liebert: Yeah. That’s a wonderful question. Yeah. I do all of the things you mentioned at West Point and I should probably say upfront that I’m not speaking on behalf of the institution as a whole, but just in my meager capacity as a professor and sharing my personal opinions with you. But it really is a great honor to be able to teach at the US Military Academy because everything we do here in one way or another is connected to leadership. To the development, inspiration, education, training of leaders of character. That’s our mission. But yeah, this book on leadership by Henry Kissinger is a really a remarkable book. A recent book. And it’s a nice launching point for a longer conversation about Plutarch and other treatments of leadership. I think if I were teaching it here, which I haven’t had the opportunity to do yet, we would probably be talking about the character of these people. The book is structured around six statesmen, who he knew during his life and who he studies. He presents their careers to us. He has a wonderful way, I think, of pointing out the ways that a leader sees over the horizon, sees what’s possible, but is also aware of the constraints on what one individual can do. History or circumstances or something outside of our control sets boundaries on our action. And I think that’s a very useful lesson particularly for young, ambitious sorts of people to keep in mind. A dose humility that we can aim so high and there’ll still be some limits to what we can achieve. Rebecca Burgess: So how do we prepare or educate statesmen and how do we differentiate between statesmen and great statesmen in Kissinger’s view? Hugh Liebert: Yeah. I think the great statesmen in his view are aware of these limits for one thing, but not constrained by the immediate opportunities in front of them. So that’s one thing. As far as how we educate people for this, I’m tempted to say they should read books like Kissinger’s, but also Plutarch’s Lives, which I know is near and dear to your heart as well as mine mean. That’s good advice. I think the traditional advice for how we should educate statesmen in particular is to read histories. To be confronted with practical situations where you have to make a choice and consider the nuances of each individual situation that you’re facing. And I think that’s true. I think reading histories is a very good way to study leadership and prepare for it. But also say since I’ve been teaching here, I’ve become much more aware of the ways that academics in particular, I think tend to overrate studying leadership and preparing for leadership through books. There’s a practical element to it. When you’re leading people, you have to know how people work. Like with other practical endeavors like walking, you learn to walk by trying to walk and failing to walk and improving your performance. You learn to sculpt, I imagine, by trying to sculpt, failing at it and then improving. And I think there’s an element of leadership that’s like that too where you have to practice, fail at what you’re trying to do and then reflect on your failures. And I think it’s there in particular that reading good old books like Plutarch’s, to some degree like Kissinger’s as well can be really helpful Rebecca Burgess: In that regard it’s interesting that he doesn’t include Winston Churchill, but I suppose it’s a little hard of a task. At this point there are over … I can’t remember. 2,000 works on Churchill or something like that. Hugh Liebert: One of the challenges of talking about leadership is that everyone and their uncle and their second cousin has written a book on leadership so there’s not necessarily a lot new to say. But that’s an interesting thing about the phenomenon is that everyone seems to have an opinion about it and to have some desire. I presume there’s some demand out there in the market for good books on how to be a leader. Rebecca Burgess: Right. Maybe we should look at that word leadership too. At what point do we change from the word statesmanship to leadership? Do we lose something by using the word leadership rather than statesmanship? Hugh Liebert: Yeah. We definitely do lose something, and I think it means something very different in how we use it. It’s an interesting question for history when that switch happens. I would guess that it has to do with the rise of a number of groups that people consider very significant. They want to be able to think about how to organize them effectively, but they aren’t political groups. So we can talk about leading a business enterprise or leading a religious group or leading a family. All of those are things we want to think about and articulate what good and bad looks like. But leading in politics is something a little bit different from that. So I think that probably the rise in talking about leadership versus statesmanship has something to do with these other domains of life coming into view more prominently than they were before. But it’s also, I think, a useful way of eliminating the phenomenon. Because if you think about what leaders do, I think my favorite definition of leadership that I’ve heard, which I owe to the mayor of my small town that I live in actually … But he’s quoting Eisenhower. He says, “It’s the art of getting people to do willingly what you need them to do.” Or something to that effect. But it’s nice because you see that that’s true in a way. If you have some responsibility for a group, you want to be able to articulate and get people to act in concert towards some common purpose. But there’s always this temptation that individuals have to work in their own interests, which in many respects can go against what the common interest is. And so this ability, which some people seem to have and other people don’t have as much, to get people to link their own self-interest, what they want to do personally, with what’s good for the whole, that’s a really challenging thing. It shows up in a number of walks of life. Very consequentially in politics. Rebecca Burgess: Right. Kissinger’s book looks at the post-war period and looks at the six different leaders. Some well-known and lesser known names. Lee Kuan Yew, he talks about and Anwar Sadat, but also Margaret Thatcher, Richard Nixon, Charles de Gaulle, Konrad Adenauer. And his contention seems to be, or one of the interesting things that he seems to be looking at is how leadership happens in moments of transition or leadership is maybe most visible in moments of transition when as he puts it, values and institutions are losing their relevance and the outlines of what a worthy future are in controversy. So then he goes into, at least in his conclusion, that while leadership is in fact not a general thing, not an abstract thing, as you mentioned, it happens in particular places in particular times, there’s also something of enduring value within leadership. Something that carries across. What are some of those things that you noticed in reading the book that he mentions there? Hugh Liebert: The enduring qualities of leadership. The things that aren’t particular. Yeah. One thing he points out, which I think is a very valuable insight, is that many of these six leaders he studies have a kind of rhythm almost to their life where they have moments of action and then moments of reflection. Many of them have an experience where they check out for a while. Go to a monastery or some private home and are able to reflect and read and really think. But then have these moments where they’re fully engaged in practice too. And I think that’s a very valuable lesson for leaders to have. To think about the way that this kind of alternation between reflection and practice can be valuable. I’ll say the other thing that I think is really valuable from the way that Kissinger in particular approaches the problem of leadership is that he focuses on statesmen from the 20th century. It’s common, especially for people who are enchanted with the ancients, to think that there was some moment when great leadership was possible, and then everything has declined in some way since those times and here we are stuck. It’s smaller somehow with the opportunities in front of us. But I don’t think that’s true. There’s a permanent possibility for remarkable leadership, even given the constraints that one can be under in a particular time. And Kissinger’s very good for pointing that out. Raising people’s vision that our times aren’t necessarily decadent or fallen in some way. Rebecca Burgess: It does remind me of that anecdote from President Bill Clinton after his presidency where he lamented that say, 9/11 didn’t happen under his watch because he didn’t have a great moment to test him, for him to show his leadership. It always makes me wonder … And of course we can talk about this with Plutarch too, is what if you aren’t given the chance to show your great leadership? Do you need a great occasion to show it, or are there qualities that those of us who are not going to become president or perhaps officers in the US Army, that we can do, that we can take away from studies of leadership or reading Kissinger’s book? Hugh Liebert: Yeah. No, I think so. I think one thing you could start by saying is that particularly on the political level, it’s possible for statesmen to create their own opportunities to show their excellence. That’s a insight that Machiavelli has that isn’t totally foreign to Plutarch either. I hope we have the chance to talk about one of my favorite of Plutarch’s Lives, which is the life of Phocion. This Athenian statesman when Athens is gradually falling under this way of Macedon. It doesn’t seem like a situation where you could be a great leader. You could really demonstrate an admirable character, your ability to see the possibilities of events. But partly thanks to Plutarch’s guidance, you’re able to see that actually there are opportunities to do remarkable things, even under pretty constrained circumstances. And I think that’s a good lesson. Good character, the ability to inspire other people, all of that should be able to show itself in a variety of contexts. Particularly when we can raise our sight a little bit from the options that seem immediately available and look for opportunities that maybe other people don’t see. Rebecca Burgess: Right. Well, one final question about Kissinger’s book. And of course we’re not quite doing it justice, but let’s be frank, we really want to just get to Plutarch and ancient Athens because there’s so much there. What might be missing in Kissinger’s book about leadership? I think I’ll just leave it at that. What might be missing? Hugh Liebert: It’s a good question. I really do admire this book, so it’s a little hard for me to say that, but just as a partisan of Plutarch, let me answer that question. Which is to say Kissinger writes six lives that stand alone. They’re independent of one another. Some of the characters know each other, but they aren’t really meant to be interwoven I think in any way apart from that. Plutarch by contrast writes lives of leaders in parallel. So there’s one Greek leader, one Roman leader statesman, and it’s a brilliant literary form that Plutarch is largely responsible for inventing. It’s brilliant precisely for the study of leadership because he manages in the way he structures his literary work to put these leaders in competition with one another and show us the case for one and then the case for the other, and ask us as readers to choose which is the best. There’s something almost, I hesitate to say this, but a little egalitarian about Kissinger’s approach where we’re not asked to make these harsh judgments. And I think engaging the judgment of a reader is not only good for philosophical education, like forcing you to take a stand and own up to your commitments, reflect on them and so on, but also is a good practice for leadership. Because one of the things one has to do, particularly as a statesman but in other walks of life too, is size up other leaders. They get to know people, the range of human types, and there’s something about seeing people in competition with one another, even in a kind of literary form that I think really hones those skills. So Plutarch taps into that in a way Kissinger does not. Rebecca Burgess: Right. Well, Kissinger does invoke that classical antiquity is long considered the nursery of statesmen so I feel as though we can just segue right into that nursery, if you will. And of course, while there’s no end to the conversation we could have about today’s ills and where to find our statesmen … Are they there? Is there any there? Sometimes I do think it’s richer to look to fraught moments in history and the failures, as you mentioned, or successes of some of the people in those moments and how they responded to sometimes overwhelming events without the benefit of the internet or PR teams, all the rest of it, mapping out the consequences to all their actions. So if we turn to sixth-century BC, this seems like a really great time to look at Athens and to look at Athens at three distinct moments. So while all of Plutarch’s lives are imminently worthy to be talked about, I think if we focus maybe on Solon in the moment of establishing laws or giving laws to Athens and then Athens at its height with Pericles, and then as you mentioned Phocion, at its decline or end or what to do now, then maybe we can find some of those moments to fasten on and go from there. How does that sound? Hugh Liebert: Yeah, sounds great. Let’s do it. Rebecca Burgess: Wonderful. Solon. Tell us a little bit about what’s happening in sixth century BC Athens where this character comes to the fore giving them their laws, but Plutarch introduces the life of Solon with a great amount of poetry, and as a person, a poet who also is a lover of beauty, which is very Athenian of course. But his entry into public life, Plutarch points out as beginning in deception and poetry. There is the battle of salamis that Athens has failed to hold onto this island that it’s very attached to. And the Athenians are so distraught at their loss that they actually pass a law that no one can bring up the fact that they don’t have it any longer and no one can mention them returning to war and taking it back. And Solon writes a 100-verse, I think, poem about this and goes…

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