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The Jeffersonian Republic Dec 30, 2022

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Often underappreciated and understudied by the general reading public, the Jeffersonian era is indispensable for understanding American development. Kevin R.C. Gutzman has now written a definitive account of the period. He joins Liberty Law Talk to discuss. Read along with the transcript below. Brian A. Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. John Grove: Welcome to Liberty Law Talk. I’m John Grove, the managing editor of Law & Liberty. From 1800 through 1824, Americans elected and reelected three presidents from the same party, indeed from the same state, something that has never been done since. And for most of their time in office, Thomas Jefferson, James Madison, and James Monroe also enjoyed comfortable partisan majorities in Congress. The opposition party as an institution was destroyed, and in these years, America began a period of expansion and development. It struggled to develop a consistent foreign policy, continued to wrestle with fundamental constitutional questions, and saw the emergence of regional fault lines that would plague the rest of the century. This fascinating period of history is the subject of Kevin R.C. Gutzman’s latest book, The Jeffersonians: The Visionary Presidencies of Jefferson, Madison, and Monroe. Gutzman is a Professor of History at Western Connecticut State University and is the author of several books, including Thomas Jefferson-Revolutionary, James Madison and The Making of America, and Virginia’s American Revolution. But today we’re going to be talking about his latest published this month, The Jeffersonians. Professor Gutzman, thanks for joining me. Kevin Gutzman: Happy to be here, John. John Grove: All right. So the revolution of 1800, seems we can look back at 1800 as a really pivotal moment in American history. Even at the time, though, people seem to recognize that this was something new, this was a kind of new era dawning. Jefferson, looking back a couple decades afterward, he says that the election of 1800 was as real a revolution in the principles of our government as that of ’76, not effected indeed by the sword as that one, but by the rational and peaceable instrument of reform, the suffrage of the people. So to start us off, where did the revolution of 1800 come from? Talk to us a little bit about the 1790s, where did this pivotal election come from, and what were the expectations for this new era? Kevin Gutzman: Well, the 1790s had seen what surprised most observers and most participants, the development of a two-party political system. And this was disappointing to members of both parties. The Jeffersonians in particular had thought that winning the American Revolution, especially Jefferson had thought winning the American Revolution had meant establishing a new kind of society with a new kind of government, one that was going to leave men more or less free to make their own way in the economy, one that would be decentralized so that even the average Joe who couldn’t, of course, be elected to Congress or be a cabinet officer, could still have more or less complete say over the way his own life worked. And yet the Federalists for their part thought apparently that what the American Revolution meant was that now Americans would have their own government, like European governments. And when the revolution of 1800 occurred, Jefferson believed, and more or less said in his first inaugural address that his view of the American Revolution had been vindicated, that the people had, at last, come to agree with him. So he and his two close allies, Madison and Monroe, would over the following six presidential terms, try to implement essentially every element of what had been their partisan position in the 1790s. Much of it was wildly successful while other of it was a complete debacle. And somewhat surprisingly, there is, other than my new book, no account of it that takes it all as of a piece, even though people at the time understood these three consecutive two-term Virginia Republican presidents were all acting on the same platform. So what I hope I’ve done is give a coherent account of Jeffersonianism as implemented by these three presidents and their allies in Congress. John Grove: Wonderful. Yeah, a big part of that, of course, is constitutionalism and their vision of the American Constitution. Obviously, that’s of particular interest to a lot of our listeners and Law & Liberty readers. So I wanted to talk a little bit about, first the general Jeffersonian constitutional vision and ideals, and then a little bit about how some of those battles were fought over those years. And as you note throughout the book, even though a lot of the political battles were being won by the Jeffersonians, they weren’t necessarily winning the constitutional arguments all the time. So really famous line from Jefferson, “Our peculiar security is in possession of a written constitution. Let us not make it a blank paper by construction”. How would you describe the Jeffersonian constitutional vision, at least in its ideal form, not necessarily in the way that it played out in practice? Kevin Gutzman: Well, my immediate preceding book was about Jefferson’s political program. And the chief principal in his political program after Republicanism, which of course was a given, was federalism, which was, as he once put it, that if there were a conflict between the federal government and the states, he would prefer the states. But then within a state, he would prefer counties, and within counties, he would prefer wards. And this gets back to the idea I mentioned earlier, that the average person couldn’t expect to be a cabinet officer or vice president or a senator, but he could hope to convince his neighbors that they had a common understanding of the way life ought to be lived. And so if the government was left largely decentralized, people in Massachusetts and people in Virginia who didn’t agree about political questions could all be happy because they could all be governed by their own neighbors. And this is a principle that Jefferson and his two collaborators, successors took to heart that Jefferson said in his first inaugural address that this was going to be one of the chief alliances of his administration. And they went a long way toward making that central feature of their own constitutional practice. Of course, as you mentioned, it was the case that Jefferson bewailed, the Constitution didn’t allow any means for the voting majority to change the composition of federal courts. And so it was true that while the active government was decentralizing its activity, the federal judiciary was writing into what came to be called constitutional law, principles of centralization that we still live with. So if you study the Constitution in APUSH or as an undergraduate, or in law school, you start with Marbury versus Madison. And the next thing up was McCulloch versus Maryland, both of which of course are decisions from Jefferson’s cousin John Marshall in his court that Jefferson bewailed, he thought they were mistaken. And he also saw that they, in the long run, were going to empower people to act against these principles that he helped so dear. So there is a poignant element to this, and I try to make clear in the book why it was that people like Marshall acted on these principles. That is John Marshall, Chief Justice and fellow Randolph to Jefferson. I try to make clear why he acted on these principles and why people like Jefferson thought they were just completely mistaken, that they meant essentially it was possible that in the future the US government could come to look like the Spanish government, or the Prussian government, or the British government. John Grove: Before we get into some of those specifics, I do want to get into some of the constitutional specifics. But one incident that strikes me as very important in the narrative that I’d say the average reader of American history doesn’t know a whole lot about is the impeachment of Samuel Chase. In fact, you even call this the high watermark of the Jefferson presidency, this attempt to impeach Samuel Chase. Of course, Federalists had been kind of packed into the federal courts all throughout Washington and Adams presidency, but even right at the very end, of course, which gave rise to the Marbury versus Madison case. And so you had the Jeffersonians, the Republicans in the presidency, in Congress, but you had this really just Federalist bastion in the courts. And so one potential approach of the Republicans was to try to pull these people out by impeachment. And you just mentioned a minute ago that the Constitution doesn’t provide any method for the people to change the composition of the court except very, very long term as judges retire and pass away. So impeachment was one method that they tried to do. And so just tell us a little bit about the Samuel Chase impeachment and why that was so important and why you even suggest this was kind of a pivotal turning point in the presidency of Jefferson. Kevin Gutzman: Well, of course, Alexander Hamilton tried to assure people in the Federalists that the idea of giving federal judges good behavior tenure wasn’t that dangerous because the impeachment power would be available. And after Chase, who if he didn’t deserve to be removed from office in his impeachment trial, I can’t really quite imagine how a judge could deserve to be removed from office in an impeachment trial. John Grove: I noticed you were very upfront about that. Do you really think Chase deserved to be removed? Kevin Gutzman: I think he deserved to be removed from office, and actually, it’s come to be a kind of totem to which federal judges bow. So in their history, in the histories of the Supreme Court, both the late Justice Sandra Day and the late Chief Justice William Rehnquist, my all-time favorite associate Justice, said that the acquittal of Chase was essential to the establishment of American judicial authority. Well, okay, it was essential to establishing American judicial authority far beyond the policymaking discretion that the people who made the Constitution had in mind, I believe. But anyway, so what happened was this fellow Chase had been a complete partisan. He had acted as a partisan in giving grand jury charges. He essentially made political speeches when impaneling grand juries. And then in one particular criminal case, he told a fellow before the grand jury was even impaneled, that when he got to Richmond, he would impanel the grand jury, the grand jury would indict this fellow, the fellow would be convicted, and then he would give him the sternest available sentence. Then how would you like a judge like that? It makes me think of Judge Roy Bean. And Chase was acquitted, and I show in the book that people gave explanations for their votes for acquittal to the effect that, well, John Randolph, who was the lead house prosecutor, lead impeachment agent from the house, had annoyed people in various other ways. And so they voted for acquittal to get back at Randolph, or in the case of John Quincy Adams, well, here was an old man who had served his country through his whole adult life, and how could you treat him this way? And just their votes for acquittal seemed to have had very little to do with the actual facts of the case, which were that the guy was just a hanging judge. And besides that, he used his position on the bench to make political speeches. So if somebody like that couldn’t be removed from office in an impeachment trial, well, we’ve seen that there hasn’t been another impeachment of the Supreme Court justice since. And when he heard the result, President Jefferson said, well, impeachment is a mere scarecrow. It’s just an idea. It’s not going to be of any use to us at all. Whether Hamilton actually expected that when he was writing the aforementioned essay in The Federalist is an interesting question, but there’s your answer. John Grove: It’s always interesting. And when you teach undergraduates kind of just basic checks and balances, there’s always this question, well, what’s the check on the judicial branch? And there’s not a great answer to that, other than just, well, they’re going to be appointed by the other branches. But that’s a long-term process. And yeah, as you mentioned, impeachment- Kevin Gutzman: Well, later on in the book, we have the correspondence between former President Jefferson and Justice Johnson. And Jefferson says he doesn’t like the fact that the Marshall Court has come, or to concur in a common opinion because there are really only two checks on federal judges. One, he says is impeachment, and the other one is public opinion. And he says, if all the judges join in every majority opinion, or if they all join in a common opinion in every case, which is what had been going on term after term during the Marshall years, then there’s effectively no check on their behavior. You can’t say anything to any of them. They can all disavow support for whatever case you’re criticizing or say, well, we have a kind of ethic on the court that we try to arrive at a common conclusion. So it was clear at the time, it was clear very early on in the history of the federal government that the judges could do more or less whatever they wanted. And we’ve come to be used to the idea that they can do more or less whatever they want. And this Jefferson called by different names from time to time, it made him very unhappy as you can imagine. John Grove: That correspondence was very interesting. I don’t think I’d come across that before. Which Supreme Court Justice was it again that he was of course- Kevin Gutzman: Johnson. John Grove: Johnson. Okay. Kevin Gutzman: William Johnson. Yeah. There’s an excellent book, I believe on the University of South Carolina Press from about 1958 called The Great Dissenter. It’s about Justice Johnson. John Grove: And Jefferson just say, Hey, throw some dissenting or concurring opinions in there. Let’s just get a little bit variety in there. If- Kevin Gutzman: Something amazing. Right. Let us know that there are different personalities on the court so that we can single out the greatest offenders. First, Johnson’s answer was, well, I’m not entirely certain that any of our major opinions have been wrong. Can you tell me which ones are wrong? John Grove: He had answers for that. Kevin Gutzman: And Jefferson was back to him with an endless group of descriptions of past product of the Supreme Court that he hadn’t approved of. And Johnson says, well, okay, I guess in the future I will dissent when I am in entire disagreement. And so he’s called the great dissenter, even though he would dissent once every term or maybe every other term. Nowadays, we expect them to have six opinions in every case. But in those days, it was effectively always just a common opinion, and Chief Justice would read it. John Grove: Yeah. So let’s talk about a few of those decisions that Jefferson thought was wrong. I think we’ll pass over Marbury vs Madison because I think almost all of our listeners will have a pretty good sense of what was going on there, but talk about some of these others. The other big- Kevin Gutzman: Well, just one thing to say about Marbury is nowadays people would agree that the Marshall’s behavior was incorrect, because today the first thing you have to do if you’re a plaintiff in a federal court, the first pleading has to be about jurisdiction. And so the judge would first address jurisdiction. And what made the Republicans so angry in Marbury was he started by giving a sermon about all the other questions in the case. And then he says, well, there’s this jurisdictional problem. John Grove: Right, at the very end. Kevin Gutzman: And finally, of course, the power of judicial review was established by the co…

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Libertarian Crossroads? Dec 16, 2022

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In his new book, Burning Down the House, Andrew Koppelman argues that libertarianism has gone down a dangerous path inspired by Ayn Rand, Robert Nozick, and Murray Rothbard. He joined host Rachel Lu for a spirited debate and discussion about limited government and the role of the state. Rachel Lu: Hello. Welcome to Liberty Law Talk. I am Rachel Lu, associate editor at Law and Liberty, and with me today, I have Andrew Koppelman. He is the John Paul Stevens professor of law at Northwestern University and the author of several books. But today, we are going to be talking about his newest Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed. Thanks so much for being with us today, Andrew. Andrew M. Koppelman: Thanks for having me. Rachel Lu: So, I think we should really just dive right in and talk about this title here. I don’t think there’s a need for some fancy preamble on my part. I actually thought the title was very clever because there is a metaphor in here, but there’s also an actual burning house that you refer to in the book, which you take as an example that will help us to understand what’s gone wrong with libertarianism. So, talk about that a little bit. What is the burning house and why did that become your title? Andrew M. Koppelman: So, Obion County, Tennessee did not have its own fire department. It contracted with a nearby town for fire protection, but it didn’t do the contracting. Each individual citizen made a private contract with the fire company for protection, and there was an old man named Gene Cranick who had been paying his fee for years and he’s getting old. One year, he forgot and his house caught fire. His wife called the fire department, and the fire department told him, “Sorry, you didn’t pay your fee. We can’t help you.” Eventually, they came down in order to make sure that the fire didn’t spread to his neighbor’s houses because his neighbors had paid the fee and his house burned down. This generated a furious debate in the press afterward about whether this was appropriate behavior and there were folks on the right and the left who agreed that this was the true face of libertarianism. This was the vision of the future that libertarianism was offering. It wasn’t really so much about the house in particular where this was 2010. What they really were debating was Obamacare. What they really were debating was whether society has any obligation to take care of people who suffer misfortunes that are not the consequence of rights violations by other people. Rachel Lu: Right. Very good. An interesting example, also good, because I remember this and probably a lot of people do, right? I remember this debate about the burning house, and this is going to go on thought to have a metaphorical edge to it, right? Because you want to think about the way that libertarianism as a philosophy has burned down in a sense. I want to talk about that in just a moment, but first, I wanted to get in a question to make sure that I don’t forget it. You indicated in the book that you became interested in libertarianism at this time, at the time of the burning house. Then as you say, this was a debate really about Obamacare in many ways. I know you were really interested in Obamacare. Before that point, you’re an established scholar who’s been mixing it up with intellectuals for a long time. Presumably, you already had some familiarity with libertarianism. So, what did you think before that? Did the research pick up on notes from a youthful libertarian phase or was it a total about phase for you? How did this fit into your intellectual life? Andrew M. Koppelman: Well, I always believed that we should have a society that accommodated weirdness and difference and idiosyncrasy. My earliest scholarship was about gay rights and anti-discrimination law, but I wanted to respond to the idea that was being offered by libertarians like Richard Epstein, that the culture was none of the state’s business. It seemed to me that one of the things that anti-discrimination law did, first, it interfered with freedom of contract for larger purposes. I thought that that was entirely appropriate. It also was an intervention in the culture to try to change the culture. I thought that that was appropriate. So, I was interested in libertarianism from quite early, but the Obamacare case took me out of the areas that I’d worked in, which were law and political philosophy with respect to individual rights to larger questions of government power. I thought what was strange about the challenge to Obamacare was that its proponents were trying to cripple the power of the federal government because they thought that that would promote liberty. I thought that that was strange. I thought that people weren’t understanding the extent to which the Obamacare challenge rested on this strange philosophy. In the course of writing a book about the Obamacare fight, which I did, I got deeper into libertarian philosophy. I was surprised to discover that I liked Friedrich Hayek and his original formulation of libertarianism in 1944 better than I expected to. I was more sympathetic than I had been when I had read him in college and in graduate school. I also, for the first time, read Ayn Rand. Lots of people read them in high school. I did not. I was absolutely horrified and I found this stuff repellent. One of the remarkable things about the fire story is that I found a lot of libertarians treating them as if they were the same, Rand and Hayek, but they’re in fact radically different. Hayek would never have a fire department stand back and watch a house burn down. He was just less doctrinaire than that. He was a big fan of free markets. He thought that people on the left should not sufficiently understand the value of free markets, but he also thought that there was a role for government to take care of a huge range of human needs that markets weren’t going to supply. Rachel Lu: Yeah, and it’s interesting, I’m your fellow traveler there. I think I also read Rand exactly that same period as the right is going through this very hard libertarian phase. I don’t think you should read Rand for the first time when you’re a full-fledged adult, because if you’re not 16, you read her and you think, “Wow, I guess I thought there must be something more or better or something in here. I know a lot of people are impressed by this, but this is just awful. This is it. This is really rad.” So, I don’t know. I hear you there, but let’s move on to talk about Hayek, because Hayek is in some ways the hero of this book, though heavily qualified, but still has a heroic role. Of course, you go on to make an argument that I’m sure many of our conservative listeners will find extremely counterintuitive. You want to say that the Democrats have become the Hayekian party in truth, though not necessarily acknowledged, right? As the right has moved off in a Randian, Rothbardian direction, right? It’s actually tacking towards anarcho-capitalism, even though as you acknowledge, most people on the right don’t want to think of them themselves that way, certainly now, right? The Tea Party era has waned, at least in its public face. Most of them wouldn’t want to say that. But talk about what it is that Hayek gets right, that you think Rand and Rothbard have wrong. Andrew M. Koppelman: So, to understand Hayek, we’ve got to go back to when he wrote the Road to Serfdom, which was his big intervention. He didn’t mean it to be an intervention in American politics, but it was. He was really responding to the program of the British Labor Party, which wanted to nationalize the means of production and put all heavy industry under the control of central economic planning. In the late 1930s, the world’s most admired economic managers were Joseph Stalin and Adolf Hitler, because they were the ones who had turned their economies around and they were both booming. Russia had been a backwater. Now, it was building steel mills. There’s high employment, and they’d ended the inflation in Germany while France and Britain and the United States were all experiencing high unemployment. So, there was a broad consensus among intellectuals that economic planning was the only way out. They didn’t like the dictator’s methods, but they thought something like this was necessary. Hayek, who at the time was a professor at the London School of Economics, he had grown up in Austria, but he was now in London, wanted to argue that central economic planning was necessarily going to be wasteful and tyrannical. That’s the argument of the Road to Serfdom. T he book was an unexpected hit in the United States where conservatives who were opposed to the New Deal were looking for some good intellectual rationale for the position that they already had. Hayek just turned out to be exactly what they wanted, but it was always a poor fit, because Franklin Roosevelt never proposed central economic planning. There was something approaching it that was tried in the first years of the New Deal, but he had pretty much given up on that by 1934. After that, what Roosevelt was offering was welfare state capitalism where you have capitalist economy but with a safety net. So, that you wouldn’t have destitute old people. You wouldn’t have destitute poor people. The program of the Democratic Party since then has been about expanding the safety net to provide for the people who lose out in a capitalist economy. The Road to Serfdom wasn’t opposed to that. The argument in the Road to Serfdom at least, was that capitalist economies are not going to give people what they deserve. They’re just going to efficiently promote production and they avoid the tyranny that you would get if there was central economic planning. So, there really isn’t anything in the basic ideas being put forth in that book that Bernie Sanders or Elizabeth Warren would reject. We are arguing about the size of the welfare state, about what protection there ought to be, but Hayek, in 1960, again arguing against the British case, argued that you don’t need to have a national health service with doctors on the payroll of the government. It’d be much more efficient to give people vouchers and let them buy subsidized insurance on the private sector, have private insurance companies compete with one another to provide insurance. Of course, you’d have to require the insurance companies to write insurance for everybody so that they couldn’t exclude people who were sick and you would have to require everybody to have insurance. By the time you finish reading this passage of the Constitution of Liberty, another book that Hayek writes in 1960, by the end of that passage, you can see today he has outlined Obamacare, all of the elements of Obamacare proposed by Hayek in 1960. He does, as he becomes older, become crankier about a welfare state. He is terribly afraid of democracy, because he thinks that the democratic governments are going to redistribute and destroy a capitalist economy. He ends up becoming friendly with murderous tyrants like Pinochet in Chile. But his original formulation I think had something quite valuable to offer, and the Road to Serfdom is still worth reading. Rachel Lu: So, it seems to me like you’re probably right that most people on the left would agree with Hayek about some fundamental principles. They certainly would agree that it is okay to engage in some level of redistribution in order to help people in desperate circumstances, but most people on the right would agree with that too, right? That’s not going to be a terribly controversial suggestion on either side of the political spectrum. So, I think maybe we need to distill a little bit more clearly what mistake it is that you think comes through Rand and Rothbard that you think is so important or invigorating on the political right. Andrew M. Koppelman: Well, the shift that has happened over time in libertarian thought is the view that the smaller the state is, the better the state is, the more free we are. The larger the state, the less free we are. That’s an argument that has been put forth by the writers who I take on later in the book, not just Anne Rand, but Murray Rothbard and Robert Nozick and Ludwig von Mises and Charles Koch who’s enormously influential in American politics. While there are lots of elements of the Republican party that don’t embrace that view, if you look at the track record of the Republican Party, the last time they held the presidency and both houses of Congress, what they actually managed to accomplish was enormous tax cuts for the rich and gutting the regulatory apparatus, the administrative state. The Trump administration basically tried to cripple regulation at every opportunity that it had. There was a massive effort to abolish Obamacare and to take health insurance away from about 20 million people in order to have even more tax cuts for the rich. This is not Hayek. This is a vision in which the smaller the state is, the lower taxes are, the better off we are. So, it actually has in practice quite a lot of power within the Republican party. You saw it just before the last election when the Republican leaders were talking about what they would do if they captured both House of Congress, which they hoped to do. They wanted to make the Trump tax cuts permanent and they wanted cuts in Medicare and social security. This is not Hayek and this is Rothbardian. Rachel Lu: Well, but what’s the argument for why it is necessarily Rothbardian to want a smaller state? Presumably, part of the background for this is that you’re right, most people on the right want the state to be smaller than it is. That doesn’t necessarily mean that we want it to be as small as is absolutely possible without descending into total anarchy. But if most people want it to be smaller that it is right now, if they have an idea that the state is doing too much, then for practical purposes, they’re always going to be attracted to any platform that promises to reduce the size of the state somewhat. But I guess my question would be, do you have good reasons to think that the motivation for wanting that is really fundamentally Rothbardian or might there be some other reasons for that that are more sympathetic maybe, dare we say more Hayekian that are worth fleshing out and responding to? Andrew M. Koppelman: So, the useful work that Libertarians continue to do today I say in the book is they are inclined to think that anything the state is doing is likely to be incompetent or corrupt or both. This is always a hypothesis worth investigating. There are plenty of state programs that are counterproductive. If you read Milton Friedman’s books, if you read Capitalism and Freedom or Free to Choose, there’s a whole catalog of things that the state is doing wrong, interfering with the economy in ways that make us all poorer. A lot of the time, he’s right. The hypothesis is always worth investigating. Let’s imagine that you have a doctor who thinks that the body can heal itself and that surgery and drugs are never necessary. You don’t want this person as a doctor, but he can be a fabulous medical researcher, because it sometimes turns out that there are medical interventions that are wasteful and unnecessary. It turns out, for instance, that there are lots of joint problems that have been the object of surgery. Turns out that physical therapy does the job just as well as surgery does. So, libertarians, I think, do a useful job in entertaining that hypothesis. It’s when you push the hypothesis across the board without attention to evidence that I think that it becomes destructive. That’s another aspect of the Trump presidency. Trump wanted to get rid of any regulations that burdened industry and had high costs for industry regardless of the benefits. If given regulation is going to cost industry half a billion dollars, even if the amount of lives saved and destruction prevented is goin…

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America's Economic Crossroads Dec 02, 2022

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Veronique de Rugy joins host Samuel Gregg to discuss the state of classical liberal economic ideas in Amerca. Brian A. Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org. And thank you for listening. Samuel Gregg: Welcome to Liberty Law Talk. My name is Sam Gregg, and I’m distinguished fellow in political economy at the American Institute for Economic Research, and I’m also contributing editor at Law and Liberty, part of the Liberty Fund Network. Thanks for joining us today. Classical liberalism and classical liberal ideas have long played an outsized role in modern American politics, especially on the right. Today, however, we seem to be living through a period of retrenchment, whereby, classical liberal ideas are under siege from the left, but also increasingly from the right. Economic nationalism seems to be in the ascendancy on the left and the right, and much of the American business world has lurched in the direction of what’s often called stakeholder capitalism. We even find parts of the American right seemingly willing to even embrace and use something that most conservatives have at least theoretically opposed, that being the administrative state. Some national conservatives insist that classical liberals have been in the driver’s seat of the American conservative movement for too long, and that it’s time for them to step back. So what’s happened to classical liberalism in America? Did classical liberals make mistakes in pursuing their limited government agenda? Is there a chance that the band, otherwise known as fusionism, might get back together? Are classical liberals now condemned to being friendless for a generation? What does it mean to be a classical liberal in America as the second quarter of the 21st century looms. Joining me to discuss these and related questions today is one of America’s leading classical liberal economists, Dr. Veronique De Rugy. Dr. De Rugy is the George Gibbs Chair in political economy and senior research fellow at the Mercatus Center at George Mason University. Her primary research interests include the US economy, the federal budget, taxation, tax competition, and cronyism. Her popular weekly columns address economic issues ranging from lessons on creating a sustainable economic growth, to the implications of government tax and fiscal policies. She’s testified numerous times in front of congress on the effects of fiscal stimulus, debt, and deficits, and regulation on the economy. She’s the author of a weekly opinion column for the Creators Syndicate, writes regular columns for Reason magazine, and blogs about economics at National Review Online‘s The Corner. Her charts, articles, and commentaries have been featured in a wide range of media outlets, including Bloomberg Television, The New York Times, The Washington Post, The Wall Street Journal, CNN International, C-SPAN’s Washington Journal, and Fox News. And I think it’s fair to say that she is the scourge of that most crony-est of outfits, the Export-Import Bank. Vero, welcome to Liberty Law Talk. Veronique De Rugy: Thank you for having me, Sam. Samuel Gregg: Vero, you’ve been involved in the world of classical liberal ideas in America, but also in Europe, particularly France, for a long time. And in the 1980s and 1990s, classical liberal ideas, especially about economics, I think, seemed to be in the ascendancy, right? At least at a rhetorical level. But now they are plainly on the back foot. So what, in your view, is the single biggest event, or the single biggest development that’s responsible for this change? Veronique De Rugy: That’s a very good question. If I wanted to be utterly self centered, I would say that it seems that everywhere I go, classical liberalism loses, because obviously when I lived in France, it was not a classical liberal country, there’s still a communist party, there’s still a socialist party. I mean, command and control seems to be really the way people think about the economy, and the role of government, that most solution comes from the government. And I moved to the US hoping to leave all of this behind, not that I have any illusion that the US was perfect, but certainly, it looked so much better. And ever since, it’s been in decline. But that, I assume, is more correlation than causation. So to answer your question more seriously, I think, obviously, the most obvious answer is we have either not done our job properly, or we’ve been ineffective at making our case, or, and there is something easy and appealing to the case that the government can solve all of your problems. And we have failed, utterly failed, to present our ideas in a way that actually contradict this claim in spite of the evidence. I mean, we live in a world that is abundant compared to where… It should be obvious that a market economy is the way to go. But also, I think we have probably failed to emphasize and talk to people about their real concern. So maybe we haven’t talked to people at their level of concern, and we’ve stayed in this fear of, look, this is great, all is great, the economy is growing, we’re wealthier than we are. And we’ve not addressed people every day concern. Samuel Gregg: Well, let’s step back then and take a type of self reflective position, which I think is what you’re doing now. Do you think that classical liberals simply assumed that they had won the economic argument, and they weren’t paying attention to some major cultural shifts that have lent energy to those on the right and on the left, who perhaps were always skeptical about markets, and who never really gave up their faith in things like Keynesian economics, or the different interventionist options associated with things like industrial policy. So do you think that’s part of the issue that the assumption was, we’ve won the economic argument, therefore our major job of persuasion is over? Veronique De Rugy: Yes and no. I think this is true for areas like free trade and immigration for a while. But I think in the world that I’ve evolved in, Keynesian economics has always been much more potent and influential, for instance, than the more, I hate to say this, but more free market alternative. So I think it is true for some areas where we took things for granted, because there was a consensus. Samuel Gregg: You mean something like trade for example? Veronique De Rugy: Like trade. Yeah. And immigration to some extent. There were some things we took for granted, which we assumed we had made the case, and it was done. The thing, in my opinion, that is more puzzling about the last, let’s say 20 years, and what has happened, is that we see people, at least in my case, I see people who have been battling with me in the trenches against the left on central planning issues, on government intervention into their lives, on all sorts of things, who have now flipped their position, and are talking about how the free market is not the answer, or is it worth overriding the allocation of the market in order to achieve a common good? And they are sounding a lot like the people they used to criticize. That, to me, is the most baffling thing. It’s not that we had won, and we took everything for granted. There’s some of that, that’s part of the story. What I don’t quite understand is how you can have such a reversal in beliefs. Not everyone, but in a lot of people. I mean, it’s easy to say it’s opportunistic, that Trump opened the door for a political opportunity that a lot of people were actually were ever that principled, but were more in the business of winning elections, and trying to be in power, saw and jumped into. But I think there’s something more. I’m just not that cynical to think that that is all that is at play. Samuel Gregg: So are you suggesting that maybe the case for markets was not as widely accepted as perhaps we assume? That in fact, things like a more or less neo Keynesian outlook on the economy never really went away? Veronique De Rugy: Well, I think it… It’s obvious. Listen, even when I say that the case for free market, like free trade for instance was established, right? There were always some people who were skeptical of free trade. Samuel Gregg: Right. Pat Buchanan for example. Veronique De Rugy: Yeah, yeah. No, I mean, there were always people. Or I mean, if you remember the whole debate about NAFTA, right? I mean, they really opposed two sides very violently. Two sides that I think overstated their position. The outcome of, for instance, I do think… And you talk about this in your book. And I, really, where I said a lot of the free traders at the time probably overstated the impact of NAFTA. It’s not that it’s not a net positive, but it’s not this panacea that is going to make everything fine. And on the other hand, obviously the anti NAFTA people were completely wrong about how horrible it was going to be, and all this, and all that. So it’s not as if everyone wants a free trade, or it’s also not as if, I think, the way people understood the benefit of trade was ever the correct one. I think there was an understanding that was actually profoundly Mercantilist, or profoundly misguided, I’ll say, I don’t want to put a label on it, about it. Where we’ve always said, “You know what? Free trade is great, because it allows us to export more.” And we failed to actually… Because we were getting what we wanted this way, we were getting free trade agreement based on this premise, right? I think we didn’t do, maybe… I mean, I don’t want to blame people. But we have really, it seems, failed to actually make the case that actually the real value of trade is what we import. And in fact, from an economic perspective, from a domestic perspective, export as a cost, or even just making the case that if you want to export more, you need to import much more, right? And so- Samuel Gregg: We never really got away from, let’s call them neo Mercantilist arguments. Veronique De Rugy: I think the logic of the arguments as we were making them, as a matter of, listen, we’re getting what we want, which are free trade agreements, even though they’re not perfect, even though the logic is misguided, but we’re getting what we want, probably meant that we took things for granted that we shouldn’t have done because people did not fundamentally understand. Did not fundamentally understand what the value of trade truly is. So that’s an example to minimize how far we’ve fallen. I think we were doing great, but maybe not for the best reasons. Samuel Gregg: Let’s shift discussion now to an angle which I think you’re particularly competent to talk about with this, a discussion of what’s happened to classical liberalism and classical liberal ideas. You have been relentless, and I mean relentless, in your critique of corporate welfare and the cronyism that’s so widespread in the business sector of the United States. So is part of the challenge for classical liberalism today the fact that many business leaders don’t actually like markets, they don’t like competition? Because if that’s true, if it’s true that large numbers of business leaders are not really onboard with the case for dynamic markets both domestically, but also internationally, that means that an incredibly influential segment of America is not in fact onboard with market and classical liberal ideas. So do you think that this describes part of the challenge for classical liberalism today? Veronique De Rugy: It is. But I think our biggest challenge, right, is ultimately, we live in a world that is… Where politics plays a big role, and where the role of government is oversized, and the existence of government, and its ability to actually grant favors, unless we win, and we get some sort of, I don’t know, constitutional amendment that says that no government granted privilege for the private sector no matter what under any circumstances. I mean, it’s always going to be there. And I think if you marry this with the same issue as with trade, which is that people saw the benefit of, at least business leaders, right? They see the benefit of free market. But they actually don’t think about what actually makes it work. And that basically, when they’re given an opportunity to actually get a government granted privilege, meaning a subsidy, a monopoly grant, a tax break that the competitors are not getting, they take it. And they take it because they just… It’s beneficial to them, it’s available to them, they answer to their shareholders, and they maybe not at a fundamental level understand how this behavior in and of itself feeds a dislike for capitalism, for lack of a better word, a free market, for the lack of a better word. Samuel Gregg: Whereas, what really is operating here is a type of Mercantilist outlook. Veronique De Rugy: Yeah, I mean, it is. In fact, one of the most detrimental and problematic aspect, I think, of cronyism, corporate welfare, government granted privilege, however you want to call it, is precisely that because the government tends to benefit and grant privilege to larger more connected political companies, companies that may actually, in most cases, not actually need it at all but like it, because who wouldn’t want to have better terms for your loans? It feeds this idea, right, that the wealthy and the corporations are the enemy. I mean, if you think, if you go back to the Occupy movement during the Great Recession, I mean, these guys were way… They were right about sensing that there is a real problem of a government that is effectively letting everyone being crushed, but saving a bunch of big banks, having sheltered big banks for a while, and now they’re being saved, the airlines are being bailed out. And it gives this perception, right, that there’s this corruption going on. Of course, the things people mostly don’t see is that you don’t cure this kind of behavior with more government. Or more importantly, in my opinion, that these behaviors only exist because of the government ability to grant this privilege. Samuel Gregg: Right. Which is essentially Adam Smith’s point in The Wealth of Nations, in his critique of Mercantilism. So, Vero, we’ve been talking about the economic side of what’s happened with classical liberalism. And we’ve touched on some of the politics. Here’s a question for you which is a little different. And that is, do you think that there are things on the cultural side, cultural developments in America that classical liberals have neglected when they’re making their arguments about limited government, and markets, and all these sorts of things, is that, are there things on the cultural side that they’ve largely neglected to their cost now? Veronique De Rugy: Well, I mean, not just on the cultural side, even on the economic side. Actually, your book was, strangely enough, an eye opener for me. There’s this one sentence that I just actually wrote a column about, just this one sentence in your book, which is to actually remind people that economists really make a terrible case for the free market, for what the free market does. And we make it in terms that are as if the price system is the beginning and the end of absolutely everything. When in fact, what is actually beautiful about the free market is that is all the institutions that exist to support it underneath that are necessary, that are conducive too actually create cooperation between strangers, and good behavior really, between strangers. So that, I think, is an issue. Is we economists talk about the market, and the price system in ways that sometimes are counterproductive. Instead of talking about competition as this cut throat thing, what we should actually highlight, at the very least occasionally, is an incredibly cooperation that is enabled by the market economy. I think on the cultural side, I think we have… And I wonder whether it is because a lot of the free market movement is…

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Confucian Natural Law? Nov 13, 2022

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James Dominic Rooney joins host James Patterson to discuss his recent Law & Liberty exchange on Confucianism, as well as political catholicism in the West. Brian A. Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. James Patterson: Hello, and welcome to Liberty Law Talk. My name is James Patterson. I am chair and associate professor of politics at Ave Maria University, a research fellow at the Center for Religion, Culture, and Democracy, faculty partner with the Jack Miller Center, and president of the Ciceronian Society. Today with me is Father James Dominic Rooney. He’s a member of the Order of Preachers, also known as the Dominicans. He’s an assistant professor of philosophy at Hong Kong Baptist University. He works primarily in metaphysics, medieval philosophy, Chinese philosophy, and the philosophy of religion. He has a recent book called Material Objects in Confucian and Aristotelian Metaphysics on Bloomsbury Press. But today we’re going to be talking more about a political discussion that occurred somewhat on Law & Liberty, also elsewhere. In fact, part of the reason why we’re doing this podcast is because I heard one of his interlocutors, Habi Zhang, on The Pacific Century earlier this month. I sent the podcast to him and then remembered that he’s actually already had this debate. Father Rooney, welcome to Liberty Law Talk. Fr. James Dominic Rooney: Nice to be here. Thank you for having me. James Patterson: The position that Ms. Zhang has taken is that Confucianism as a political doctrine or political philosophy is simply incompatible with any idea of freedom, at least as it’s understood in the West. In fact, she says that freedom has no real meaning in China until it encounters the West. What is it exactly about the view she took that you took issue with, and what’s the position that you take instead? Fr. James Dominic Rooney: Well, I should say I think Ms. Zhang’s position is a bit odd even within the world of Chinese philosophy scholarship. I would say it’s actually a very active debate, because there have been a number of people, basically, since the revolution, who have been arguing back and forth about the role Confucianism ought to play, does play, might play in a future political philosophy that is more liberal. There was actually a very good book by a Chinese philosopher from Rutgers, Tao Jiang. He argues in favor of Daoism being a philosophy of personal freedom. I actually think that’s a good initial response, that there’s nothing about Chinese philosophy in general that lacks a concept of freedom. I think that kind of Daoist view from Zhuangzi that he was talking about is one option, of course, if you just want to talk about freedom in Chinese philosophy as a whole. Now my area is Confucianism, which is I think what Ms. Zhang was attacking in particular. And there are quite a number of Confucian liberals, actually. It’s really not that unusual to hold a position that Confucianism might give us a grounding for something like a kind of liberal view of society. It’s not going to be the same thing as contemporary liberalism but for example, the sort of people that come to my mind are Joseph Chan and Sungmoon Kim, who teaches here at City U, right out my window. I’m pointing. He teaches here. But I mean, both of them here in Hong Kong are well known for defending positions about using Confucian philosophy to defend liberal positions about freedom. My position is a little different, because they’re more contemporary political philosophy. They’re more interested in other questions. Mine came from the position that I’m sort of working on projects right now that might come to fruition in natural law politics. I’m from the natural law tradition. I’m a Thomist and we have a long tradition from Cicero and Aristotle to Aquinas down through the Dominicans of the modern school like Cajetan, and de Soto, and Victoria. And the position we hold is very similar to the Confucians. That’s why I went into Confucian philosophy and my point against Habi Zhang was just to point out a lot of the Confucian republicans at the time of the revolution actually recognized the parallels with natural law thinking, with natural law, political thinking. And they pointed out that the motivations for Confucian political doctrine are pretty similar to those that motivated people like Yves Simon and Jacques Maritain to defend natural law sort of theories of democracy, and constitutional separation of powers, and all those sorts of things that we think of as liberal doctrines. And so I just defended that well, I mean if Confucianism can hold all the things natural law does and they’re relatively close, well, there’s nothing about Confucianism as such that requires it to be kind of authoritarian. And I think her arguments about that why what in Confucianism leads it to be authoritarian had a lot to do with the idea that government is aiming to work for good lives of its citizens, that that’s the purpose of government. She called it benevolent government. And I think one of my other interlocutors also pointed out this claim and said, “Well, it’s really about benevolent government,” but there’s nothing about benevolence in government that just is to say, right, perfectionism is what we call it in contemporary political philosophy, perfectionist political philosophy. There are perfectionist liberals around like Steven Wall, Joseph Raz. It’s not all that unusual for there to be perfectionist liberals. I think even from a natural law perspective, Confucianism shares a lot of the same presuppositions as natural law theory, and you can get to defense of these same liberal institutions through natural law theory. There’s nothing that stops you in Confucianism from getting there either. James Patterson: One of the choices she makes that I thought made the article both compelling but also perhaps subject to a certain amount of criticism is that of all the people she selects to offer a western account of human freedom is she chooses Hannah Arendt. And it sounds to me that Hannah Arendt wouldn’t really comprehend that. Not that she wouldn’t understand, but that her body of thought does not really overlap much with the natural law tradition. Is that the issue at work here or do you think it’s something else? Fr. James Dominic Rooney: Yeah, I mean, if I can put it bluntly, this is a very common strategy among people today to argue against kind of liberal institutions is they tend to say something like this. I was just looking at Habi Zhang’s article, and part of the point here by quoting Hannah Arendt is to make a claim that western philosophy, western theories of liberalism require some account of an autonomous self, that free people are disconnected from families and nation and it’s like, I don’t know, Sartrean or something, that we have no commitments to anybody else or to nature. Political authority is just oppressive. It can’t be natural. When you start off on this account of liberalism or what is required for freedom, I mean, of course natural law, Confucianism can’t accept that kind of individualistic atomistic self. That’s just obvious. But it’s certainly not the case that that’s required for things like democracy or separation of powers or popular sovereignty. I mean, Robert Bellarmine gives one of the famous arguments for popular sovereignty that the Catholic church accepted and he certainly doesn’t believe in atomic individuals and this kind of picture. It’s a very common strategy, anti-liberals use or aliberal people will use. And it’s rhetorically effective to some extent, but it’s just not true that in order to have and support liberal institutions, you have to accept this kind of completely individualistic picture of the self. Or another strategy is you have to accept Locke’s picture of liberalism. But of course there’s no reason to accept, I mean, there’s no reason if you think separation of powers, popular sovereignty is true, any of those commitments, there’s no reason you have to accept Locke’s account or Hobbes’ account even more. To me, it’s just a kind of non-sequitur that if you accept these institutions, you have to accept Locke or Hobbes or Hannah Arendt’s account of freedom. I don’t think you do. James Patterson: This is primarily for my benefit as well as maybe some of the listeners. There is something you allude to, you mentioned it but you don’t quite explain it, it’s this distinction about the legalists intervening in historical Confucianism. And as I was reading it, I made an association where there’s this emphasis on virtue and moral improvement in Confucius that the legalists just attempted discredit in favor of arguing in favor of some nearly totalitarian regime intended to keep the people in line. And when I was reading this, it felt very much like I was reading about the transition from medieval to modern political philosophy. Is this a fair analogy or are there some things that are missing in the account, the Chinese? I’m assuming there are, I was just wondering what they were. Fr. James Dominic Rooney: Yeah, no, certainly. Let me just to answer your question immediately, I think actually that’s a very good way to think about it. Although the Chinese version legalism or fajia is the school of law is what it sort of means literally. It’s one of the classical schools of Chinese philosophy and they’ve sometimes been called realists or different other kinds of terms, but actually, I think it’s got a very similar vibe to somebody like Hobbes. The basic viewpoint of these kind of people we can go to one of the more important people would be Han Fei Tzu. And these kind of theorists have a kind of, you’re right, a kind of totalitarian theory of the state. They are influenced by another earlier school called Mohism from Mozi and it’s a kind of consequentialist ethics. They accept a certain theory of the state that became influential in China because it influenced a number of leaders to crack down on philosophical pluralism because they thought philosophical pluralism undermined the state. It led to a famous burning of books and elimination of alternate thought because this was the ideal was in order to have a state that really is effective, you have to eliminate alternative perspectives, you have to shut down, right, philosophers that might have alternate theories of justice. Because that’s one of the things from the early Mohist Confucian school or the early Mohist school consequentialism, is that part of the problem in the state is different theories of justice because it causes disharmony in the state. The Legalists were famous for many of their sort, let’s say, taking consequentialism and practice and operationalizing it. They did all the things consequentialists get accused of today. They want vicarious punishments and very harsh punishments to dissuade people from doing bad stuff in the state. They were famous for these sort of implementing very harsh punishments, cutting out dissent, eliminating philosophical pluralism. And I think it’s pretty clear to me that those schools are actually closer to what Habi Zhang is talking about. In the history of Chinese philosophy legalism sort of took over during this warring states period. we’re talking around, I mean Han Fei Tzu is 240 BC around, and these schools are got prominent in China and influenced the way Confucianism was practiced in China and the sort of relation it had with the state because it became a sort of way of, it gave rulers a certain kind of perspective that the philosopher should serve the state, right? And they shouldn’t be allowed to be independent. And Confucianism ended up adopting some of the views. I mean we might call the state Confucianism of the time, adopted some of these views so that it wouldn’t get totally snuffed out. It tried to come up with of accounts the Confucians could support the state in a similar vein, although the Confucians always rejected the sort of legalist idea of vicarious punishment and these overly harsh punishments. The Confucians were always trying to moderate the punishments. And there were others. The basic sort of view of later Confucianism even was Confucianism was famous for something that the legalists would not, I think, accept which was the role of scholars in the government to remonstrate with the emperor. That was a very Confucian institution that shows you a little difference with legalism. The legalists thought the philosophers need to serve the state and need to be suppressed. The Confucians, even when they were serving the state, have the idea, if we might put it this way, that the Confucian institutions, the scholars were really independent and were supposed to act as a moderating influence on the emperor. They were supposed to educate him and then if the emperor did something wrong, they were supposed to write memorandum to the emperor to correct him. And this generates a sort of theory that looks pretty, it’s not separation of powers, but it represents… It was supposed to be a check on the autocracy of the emperor because the Confucian theory was always that the moral law, justice, stands higher than the state that is definitely 100% central to the Confucian doctrines. If you look at the first chapter of The Mencius it’s anti-consequentialist. It’s one of the kings of the time talking to Mencius about how Mencius can profit the state, which is let’s say a very, this is before legalism proper, but would be a very legalist kind of way of thinking. And Mencius says, “Why did you ask about profit? You should have asked about righteousness and then you would’ve asked the right question.” And that kind of perspective has always been the Confucian perspective. Justice stands higher than the state. There’s a higher moral standard that the state cannot violate. If the state violates it, the state becomes unjust and illegitimate to the extent to which it violates the standards of justice. The Confucians, I think definitely did not share that kind of legalist perspective, but you can see that this kind of legalist perspective very much influenced some of the practices of China. I think Habi Zhang is sort of associating some of that, this sort of legalist consequentialist understanding of the state more with Confucianism than it ought to be. James Patterson: You actually referred to another interlocutor and it was, I believe David Schneider, he makes a great deal of use out of the understanding of heaven or the idea of pietas versus, what is this? You say xiao? And how these are, that these are not sufficiently parallel ideas, but heaven and Confucian sense and versus a Christian sense or pietas and xiao and that this is a confusion that you’ve encountered. Is this a accurate assessment of your position or does he perhaps miss something here? Fr. James Dominic Rooney: If I can try to summarize the position as I understand Dr. Schneider, his position is, as you say, how is a virtue that is akin to, it’s translated in English as filial piety. Xiao Is the virtue basically of sons to fathers. And I mean sort literally that’s what it is, sons to fathers. And then it gets applied by a sort of analogy to any hierarchically subordinate person to the superior. Xiao is a virtue also of servant to minister is a kind of xiao. I think pietas is a good translation in a good analogy in the western tradition because piety is about the same sort of thing, gratitude to God, gratitude to your parents, gratitude to your government and your nation. I mean you find that in Cicero you find it in Aquinas. But the difference that David Schneider tried to claim is that in xiao, in the Confucian tradition, we might say, “No inferior person has a right to oppose the person in a superior position.” That’s sort of David Schneider’s claim. Now in fact, I think that’s false. I…

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The Inalienable Right to Religious Liberty Nov 03, 2022

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Vincent Phillip Muñoz joins host Samuel Gregg to discuss his new book, Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses. Brian A. Smith: Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org and thank you for listening. Samuel Gregg: Welcome to Liberty Law Talk. My name is Sam Greg and I’m distinguished Fellow in political economy at the American Institute for Economic Research, and I’m also a contributing editor at Law and Liberty, part of the Liberty Fund Network. Thanks for joining us today. Religion and religious liberty seem to be major points of contention today across the United States. Whether the issue is school prayer, religious exemptions from healthcare mandates, or the degree to which legislators, even presidents allow their faith to shape politics and policies. It’s very hard to escape debates about the place of religion in the public square today. Overshadowing all this is the fact that a concern for religious liberty was at the forefront of the minds of many American founders. This was eventually given expression in the First Amendment, but what did the founders really think about religious liberty? Did they think of it as a natural right and therefore connected in some way to natural law, or was the securing of religious liberty essentially focused on securing social peace? These and many other questions are discussed in a new book entitled Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses published by the University of Chicago Press. I’m very happy to be joined today on Liberty Law Talk by its author, Professor Vincent Phillip Muñoz. Professor Muñoz is the top field associate professor of political science and concurrent associate professor of law at the University of Notre Dame. He’s the founding director of Notre Dame Center for Citizenship and Constitutional Government. His scholarship has been cited multiple times in church-state Supreme Court opinions most recently by Justice Alito in Fulton V City of Philadelphia 2021, and by both Chief Justice Roberts and Justice Thomas in Espinoza V Montana 2020. He’s widely published having written several academic books as well as articles on topics like religious liberty, the idea of natural rights, as well as the American founding. He received his BA at Claremont McKenna College, his MA at Boston College and his PhD at Claremont Graduate School. Philip, welcome to Liberty Law talk. Vincent Phillip Muñoz: Thanks for having me. Samuel Gregg: Today in America, Philip, we often think that it’s hard to imagine a topic more controversial than religion and religious liberty. I suppose that’s because religious liberty touches on questions ranging from Constitutional interpretation to the more generic place of religion in American society. Now you’ve been writing about the nature of religious liberty, its connection to ideas about natural rights as well as its Constitutional and wider political implications for many years. So tell me this, why did you decide to write this book at this particular time? Vincent Phillip Muñoz: Yeah, that’s a good question. Thanks again for having me on. I’m a fan of the show and listen to it regularly, so it’s a pleasure and a treat for me to be on it. Why did I write the book? Well, I suppose I thought, every author thinks, that I saw something or see something that others don’t see, and I think that’s the natural rights foundations of religious liberty in American constitutionalism. In our jurisprudence and in the scholarship, people don’t talk about natural rights that much. And I think by ignoring natural rights, because we don’t really understand natural rights, we don’t really understand the founder’s thinking. And I think that leads to misinterpretations of the First Amendment. Samuel Gregg: Now, I noticed in the title of your book, or more precisely let’s say the subtitle, that used the word words, the original meanings of the First Amendment religion clauses. So not original meaning in the singular but rather original meanings in the plural. Now I take it that you are indicating here that to speak of original meaning in a singular sense is somewhat of a mistake. Am I right in supposing that or did you have something else in mind? Vincent Phillip Muñoz: Yeah, no, I think that’s exactly right. I think there are a different meaning for the establishment clause and the free exercise clause, but it’s even more complicated than that. One of the chapters in the book, I think it’s the four chapter is titled something like “How the Founders Agreed about Religious Liberty but Disagreed About the Separation of Church and State.” What I’m trying to show is that there was an agreement on the natural rights principles, but at the same time still disagreement about public policy questions about church and state. So the founders are more interesting and more diverse than I think scholars have realized. Samuel Gregg: Now, was this something that you came to a conclusion to before and then you wanted to find out if your summation was true or was this something that you came to conclude after reading through some of the texts that are obviously very important for this conversation? Vincent Phillip Muñoz: That’s a really good question. I think the light bulb went off when I read a correspondence. I can’t even remember. It was George Washington writing to someone and I just can’t remember whom right now. And he is talking about Patrick Henry’s proposed funding law, a bill for Christian education or education in Virginia. This is right after independence. There’s a debate between Patrick Henry on the one hand and James Madison and Thomas Jefferson on whether religious ministers will be funded in the new state of Virginia. And George Washington in the letter, again, I just can’t remember, it’s in the book, I just can’t remember to whom it is addressed, says he was originally in support of Patrick Henry’s proposal. So here was George Washington on the one hand, supporting Patrick Henry, a patriot on public funding of religion, and James Madison and Thomas Jefferson on the other side. And I was trying to figure out what all the founders had in common, and they do have something in common. But then it was just obvious, well, they disagreed too. And of course they did. They do have natural rights principles, but what those principles mean in practice, just like we disagree about things, they disagreed about things. Samuel Gregg: Well, in light of what you just said, I’d like to quote something that you wrote on page 89 near the beginning of chapter four, which is entitled “The Founder’s Disagreement.” And you write the quote, “While the founders agreed that religious liberty is an inalienable natural right, they began to disagree when they moved beyond the core right to worship according to conscience.” End quote. The natural question to ask I suppose is why did they disagree once they move beyond this essential point? Vincent Phillip Muñoz: I don’t know if all listeners that this will resonate with them what I’m about to say, Thomas Aquinas says, “When you move away from the first precepts of the natural law to more secondary considerations, what the natural law dictates becomes a little less clear.” And I think it’s an analogous to that. The founders agreed, what I say is an inalienable right, their language was an unalienable natural right. And they agreed that means the government has no authority to tell you how to pray, prohibit you from praying, tell you where to worship, mandate worship. So there’s a core agreement. But when it comes to questions like funding, can government fund religious schools? The question in Virginia was, can government fund religious ministers? In the argument, Patrick Henry’s argument was because religious ministers provide education for the citizenry, there’s no public schools at the time. So it was about education according to Patrick Henry. When it comes to these secondary questions, there’s just disagreement about what the natural rights principles dictate. Doesn’t mean that there’s a right answer and wrong answer, just you have to wade through their differences and try to figure it out. Samuel Gregg: So you mentioned public education on funding for religious education. What are some of the other, let’s call them policy areas that the founders disagreed about once they moved beyond this core agreement about this right to worship according to conscience as you describe it? Vincent Phillip Muñoz: Sure. Another example is can you use religious tests for office? We think of this as a core element of the natural right of religious liberty. It’s actually not so core. In the argument for the pro religious tests for office is something like this, and the context here is let me just use Massachusetts, to be a governor in the state of Massachusetts under its first Constitution, you had to be a Protestant. And that was not uncommon. Other states had religious oaths for office that effectively eliminated Catholics or Jews or non-Protestants. It varied state by state. And the argument that the proponents of the religious tests used was, “Look, we need virtuous office. We need men,” it was all men at the time, “We need men of good character.” This is why we have age limitations. You must be 35 for president or 30 for Senate. And that’s an indication. The age is a substitute for maturity. Well, they said, “Well, we can use religion as a substitute for virtue.” And it’s clearly a legitimate public purpose to have a limitations on office holding that will foster good character. Religion, some founders said, can be used in that way. And that’s how they justified religious limitations on office holding with the idea that religious liberty is a natural right. And they said, “Yeah, you can worship however you want, but we can use religion as a means to further public purposes such as virtue and office holding.” That’s one side. The other side was no religious affiliation should make no part of the government’s considerations, like a colorblind constitution, race should not be part of the government’s considerations. And so civil rights should not be conditioned on religious affiliation. That’s a second area of disagreement. Samuel Gregg: So obviously you’re pointing to considerable ambiguity about the public policy implication of the First Amendment, at least based upon reading what different founders said about these things and the way that they disagreed about these things. So if there is this ambiguity, what does this mean for originalist approaches to the First Amendment today? Because if there is this ambiguity then that suggests that in many cases it’s not immediately evident what the original meaning of the establishment clause and the free exercise clause is, at least as it pertains to public policy questions. So what does this mean for the originalist project of Constitutionalist interpretation, at least with regard to the First Amendment? Vincent Phillip Muñoz: Okay, let me just preface my answer by saying it takes me about a hundred pages to answer this question in the book. So I’m going to give you the short version. The first thing we should, just because one founder said something doesn’t mean that’s the founding position on church and state. And you see this in jurisprudence, a citation to Jefferson or Madison. And because Madison said this, usually this is misinterpreted, but that’s another problem because Madison said this, then therefore the First Amendment means that. And that’s just a lazy way to do jurisprudence. And look, both sides do this. Conservatives do it. Liberals do it. It’s just irresponsible, to speak candidly. Okay. The other thing it indicates, the founders disagreements, if you are aware of the disagreements when you go back and read the historical record, the historical record starts to make more sense. They disagreed about the proper relationship between church and state. One of the ways we deal with disagreement at the time of the founding, less so now, but at the time of the founding was federalism. So part of my argument was the establishment clause and the odd language, respecting an establishment. Congress shall make no law respecting an establishment. One of the purposes, not the only purpose, but one of the original purposes was to say, “Hey, we disagree about these church-state matters. We will leave them with the states.” And that’s how knowledge of the disagreement starts to shed light on what they were actually doing when they drafted the First Amendment. Samuel Gregg: So given that’s the case, what role do you think that the idea of natural rights has in terms of constructing a coherent originalist interpretation of the First Amendment in light of the fact that the founders clearly did disagree about some very important questions regarding religious liberty that are still playing out today? So what does the natural rights approach to this suggest in terms of how one should construct an originalist approach to the First Amendment? Vincent Phillip Muñoz: Okay, so let me just start on the level of you’re a good faith legislator trying to understand what your constitutional power is or judge trying to interpret the First Amendment. What would this knowledge of natural rights, how would it help you? Well, first of all, I talked about the establishment clause already, let me talk a bit about the free exercise clause. The First Amendment says, “Congress shall not prohibit the free exercise of religion.” Well, what is the free exercise of religion? It’s not a term of ours. There’s not a clear meaning of the free exercise of religion. So you have to go beyond the text. You can’t just, “Well, the text is obvious.” Text is not obvious at all. Well, how did the founders conceive of the idea of the free exercise of religion? If you go back to what they wrote about religious free exercise, you see they called it an inalienable natural right. Well, what’s an inalienable natural right? Again, this is a whole chapter in the book. An inalienable natural is a right over which we do not give authority to government. That’s why it’s inalienable. That term is actually very important. It refers to social compact theory. We don’t give a certain degree of authority to the government over our religious exercises according to the founders. I’m going to make a big jump here. The core of that right was the right to worship, the right to worship according to conscience. What that means in practice is government has a jurisdictional limitation. It has no authority to tell you how to worship, to make legislation saying, “You must worship in this way at this time in this church.” So the question was what does the natural rights, or what does the knowledge of the founder’s natural rights philosophy do for constitutional interpretation? It gives us a way to understand the terms they use, the free exercise of religion, how they would’ve conceived those terms. Samuel Gregg: So you say it in the book, you say you’re offering a method of interpretation that I quote, “Does not correspond to any existing jurisprudential approach.” So tell us about how your approach differs from the primary ways in which the Supreme Court has approached First Amendment cases and how your approach might yield some different decisions to what we’ve been seeing coming out of the court in say, the past 10 years on these first amendment issues? Vincent Phillip Muñoz: Okay, sure. I’m going to group, I hate doing this, but it’s just for convenience, I’m going to do it. There’s I’m going to call it, a liberal approach and a conservative approach. I don’t actually think those terms are really appropriate, but nonetheless, that’s how people think about these things. So the li…

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Men (Not) at Work Oct 31, 2022

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Why are so many prime-age men checked out, neither working nor looking for work? Nicholas Eberstadt discusses his book Men Without Work and a hidden employment crisis with host Samuel Gregg. Sam Gregg: Welcome to Liberty Law Talk. My name is Sam Gregg and I am Distinguished Fellow in Political Economy at the American Institute for Economic Research, and I’m also contributing editor at Law & Liberty, part of the Liberty Fund Network. Thanks for joining us today. It’s long been known that work has major economic significance, but also a great deal of significance for human’s social and even moral development. Of all the creatures in this world, humans alone work. Animals don’t work. Plants don’t work. Minerals don’t work. That alone should tell us that work is something fundamental to who we are as humans. It should also tell us that when people work, where they’re paid or unpaid but can’t work or don’t work, we can expect many negative consequences that go beyond work’s economic dimension. America’s long prided itself on its relatively low unemployment rate compared to, for example, western European countries, and at this present moment in time, unemployment is extremely low in the United States. Yet, we also know that many Americans, especially young American men aren’t working, and in some cases are choosing not to do so. One reason we know that is because of the research conducted into work and employment patterns in the United States economy by our Liberty Law guest today, Dr. Nicholas Eberstadt. Dr. Eberstadt holds the Henry Wendt Chair in Political Economy at the American Enterprise Institute, where he researches and writes extensively on demographics and economic development generally, and more specifically on international security in the Korean Peninsula and Asia. Domestically, he focuses on poverty and social well-being. His many books in monographs include Poverty in China, 1979, The Tyranny of Numbers, 1995, The End of North Korea, 1999, The Poverty of The Poverty Rate, 2008, and Russia’s Peacetime Demographic Crisis, 2010. He has a PhD in Political Economy & Government, an MPA from the Kennedy School of Government, and an AB from Harvard University. In addition, he holds a master of science from the London School of Economics. In 2012, Dr. Eberstadt was awarded the prestigious Bradley Prize. Today, we’re going to be talking about his latest book, or more precisely, his updated new book. Originally published in 2016 as Men Without Work: America’s Invisible Crisis published by Templeton Press, Dr. Eberstadt’s book cast a spotlight on the collapse of work for men in modern America. Rosy reports of low unemployment rates and full or near full employment conditions, he contended, “We’re overlooking a quiet continuing crisis.” That is Depression-era work rates for American men of prime working age, between 25 and 54. The grim truth he’s stated at that time was that over 6 million prime-age men were neither working nor looking for work. “Conventional unemployment measures,” he said, “ignore these labor force dropouts, but their ranks had been rising relentlessly for half a century.” Now, republished and with a new introduction as Men Without Work: Post-Pandemic Edition, again published by Templeton Press, Dr. Eberstadt now says, “Six years and one catastrophic pandemic later, the problem has only worsened. Moreover, it’s seemingly spreading among prime-age women and workers over 55.” In a brand new introduction, Dr. Eberstadt explains how the government’s response to COVID-19 has exacerbated the flight from work in America. From indiscriminate pandemic shutdowns to almost unconditional unemployment benefits, “Americans,” he says, “were essentially paid not to work.” So, just today, despite all the vaccines and all the developments that we’ve had in combating COVID, inexplicable numbers of working-age men, but also women are sitting on the sidelines while over 11 million jobs go unfulfilled. That means that our current low levels of unemployment are grievously misleading, and the truth is that fewer prime-age American men and it turns out women are looking for readily available work, than at any previous juncture in our history. Nick, welcome to Liberty Law Talk. Dr. Nicholas Eberstadt: Sam, it’s a pleasure. Thanks for inviting me. Sam Gregg: Well, I’d really like to begin where I begin with most conversations of this nature, which is when you began exploring this topic, which I think it’s fair to say is on a lot of American’s minds now, what was it that originally attracted you to this subject? What was it that first alerted you to this problem, which you suggest was essentially and least originally a problem with American men? Dr. Nicholas Eberstadt: Well, Sam, I think that what laughingly passes as my career is looking at problems that are hiding in plain sight. Whether it’s the mismeasure of poverty or social crises and what was once the Soviet Union, I kind of stumbled onto this by recognizing that I was hearing an awful lot of happy talk around 2015 about unemployment levels being at almost historic lows, that we were at near full employment back in 2015. It seemed to me that this was contradicted by the evidence of my senses, not the least of these being that almost half of the American public back in those days was saying that we were still in a recession, the kind of subjective impression. I’m certainly not now, nor have I ever been a labor economist, but I’m a pretty good trespasser, so I started getting into some of the data indicators, and all of a sudden I realized, gee-whiz, guess what? Working-age men between 25 and 54 were suffering employment rates that were more or less mirroring the tail end of the Great Depression. So, in 2015, 2016, prime-age men, as they’re called, the 25 to 54 group, were reporting work rates that were more or less the same as the rates in the United States in early 1940 when the national rate of unemployment was about 15%. Sam Gregg: We weren’t that far away from the depression. Dr. Nicholas Eberstadt: Yeah. It was the tail end of the depression. It wasn’t the depths, but it was part of the depression. So, the reason that we were getting these happy talk numbers on unemployment is because one factor in the whole tableau was being omitted, the men who were not in the labor force to be either in the numerator or the denominator. The original unemployment rate was constructed in such a way as to do unemployment over workforce. It was inconceivable by the people who put together the unemployment rate statistics back in the late ’30s that able-bodied men would be sitting on the sidelines, yet by 2015 and 2016, more than 10% of the civilian prime male workforce was checked out, neither working nor looking for work. Sam Gregg: Well, one issue, which I suspect is on the minds of many Liberty Law listeners, is the degree to which this phenomena that you’re talking about, in the pre-pandemic era, how much was this a question of some of the cultural change, for example, that started manifesting themselves say, in the late 1960s as part of which I might call the general questioning of what many people would call traditional American ideals, including the ideal about work, and how much do you think this owes to specific policies implemented by different administrations over time? So, what’s really driving this? Is it culture? Is it policy, or is it some combination of both? Dr. Nicholas Eberstadt: The conventional wisdom then, and I think still today in academic and policy circles, is that the retreat from the workforce by prime-age men is mainly driven by economic and structural change, which is to say declining demand for less skilled work, decline in manufacturing, share of the workforce, China’s entry into the world trade order. Sam Gregg: Arguments that we hear today, right? Dr. Nicholas Eberstadt: Yeah, exactly. I mean, it’s the same, I think, received wisdom more or less today, and obviously globalization, offshoring, all of that. Obviously, there’s plenty of truth in that, but it’s not the whole story and it’s not even, I think, most of the story. If you look at the data, which is sometimes helpful, you can see that from 1965 to 2015 and actually onto today, you can trace out an almost straight line in the proportion of men who are no longer in the workforce. I mean, between us nerds, if I say that the line has got an R-Squared of 0.96, you’d know that, that’s a social science straight line because human beings are a little bit untidy, but it’s practically a straight line, which would be 1.0. And we don’t see any shock. We don’t see the economic shocks, the recessions, the China entry into the WTO, or any of the other things that you’d expect from this demand-driven received wisdom. What is causing this? Well, of course, culture is always the last refuge of scoundrels, and when we can’t describe anything convincingly in economic terms, we’ll say it’s culture. So, I won’t go there quite yet, but let me say this first, what we do know is that for years and years and years, if you ask in surveys, as the government does, men who are not in the labor force, why they are not in the labor force, only a tiny minority of them say this is because they could not find work, only a tiny minority. There are many other reasons that are given. The surveys are a bit procrustean that they only give you eight options. You’ve got 7 million lives and eight options, so it’s a little bit awkward. But lack of employment opportunities is not a big factor according to the men who are dropped out of the labor force. So, what we have seen over the period since ’65 were a couple of big changes. We’ve seen a revolution in the family, of course, and it has always been true that never-married men and men without children at home are less likely to be part of the labor force than married or counterparts with kids under the same roof. That’s certainly part of it. We’ve also seen the explosion of social welfare benefits that began with the war on poverty and the Great Society. Our friends in Europe and other OECD countries say that we’re painfully stingy in our social welfare benefits, but that doesn’t necessarily mean that the incentives and disincentives have some influence on our activities in the workplace. We’ve also seen a big explosion, a new wave of immigration in the United States. We, Americans, think of ourselves as a nation of immigrants, but from really the ’20s until the 1960s, we were at a very low ebb in accepting newcomers. We’ve had a big surge of newcomers since the ’60s, and that’s affected all of these patterns as well. Finally, there’s been an explosion of crime and punishment since the 1960s. It started with the crime spree that began in the ’60s. It continued in the ’70s, and into the ’80s. And then, a few years later, there was a wave of punishment, and this wave of punishment has meant that we have now well over 20 million adult Americans with a felony conviction in their CV, so to speak. Sam Gregg: And that rules them out for work in some cases, in some forms of employment. Dr. Nicholas Eberstadt: They are invisible in most of our government statistics and our national statistics, but that does not mean that they are not disadvantaged in the workplace, as you just mentioned. So, we had all of these trends in conjuncture moving together, and certainly, it’s reasonable to surmise that these had a major impact on some of the outcomes that we’re discussing today. I cannot go into the blank pages of paper that I look at with all the decimal points on it and divine culture out of that, but I think we can tell a story that is consistent with a change in mentality about family, work, meaning in life, and other things like that. Sam Gregg: You mentioned the word invisible, and I’d like to focus on that a little bit because in the 2016 edition of Men Without Work, in the original introduction, you wrote, quote, “The collapse of work for America’s men is arguably a crisis for our nation, but,” you added, “largely an invisible crisis.” Now, when I first read that, the thought that sprang to my mind was, “Why invisible?” Is it because Americans simply don’t want to talk about it because it starts to raise questions about how faithful we are to certain American ideals? Is it because talking about it would spark some awkward questions, or is the invisibility to do with the fact that it was affecting a segment of American society that we simply aren’t used to thinking about as experiencing a major problem, in other words, men, particularly say, white men, for example, or is it some sort of combination of these things, or is it something different altogether that accounts for this invisibility phenomena? Dr. Nicholas Eberstadt: That’s a really good question, Sam. I think it’s a number of different factors, some of which you’ve already mentioned. I mean, quite obviously, many of these invisible men missing from the workforce and really from society were getting ready for deaths of despair, not deaths of rage and anger. We didn’t see rioting in the street by these men. We’re more likely to see opioid overdoses. So, because they were not a public menace to society in quotes, they didn’t come into the evening news, in the way that crime blotter activity so often does. So, that made it a little bit more easy to ignore. But I think also, as you intimate, our preconceptions were in play here as well. I mean, in the academy, of course, working-age men are not a privileged victim class. They’re going to be overlooked when one is talking about disparities. They’re kind of the baseline against which one judges disparities, and it’s certainly also true that more or less, since the beginning of civilization, working-age men have naturally been regarded as providers, rather than as a vulnerable dependence. Sam Gregg: Making a sense of shame, if you’re not working or if you don’t seem to be supporting people through your work. Dr. Nicholas Eberstadt: Shame and stigma, that may also lead to quietude. Though, for all of these reasons, I don’t think that the general public or even well-informed readers, policymakers were prepared or predisposed to recognize this problem. So, for actually about two generations, they didn’t. Sam Gregg: That’s fascinating. I mean, another word that comes to my mind, and you’ve alluded a little bit to this in some of your previous comments, when it comes to this invisibility and the particular demographic that this was affecting… We’re going to go on and say more about how you’re arguing now that this phenomena is starting to affect other demographics, but one word that came to my mind when I read your book was the word, alienation. Now, when many of us hear that word, we think of course of Karl Marx, who wrote a great deal about how work for particular people and particular economic settings produced what he called, alienation, by which he meant a sense of distance between ourselves, our work, and the product of our work. Now, I happen to think that Marx was wrong about that, but he was pointing to us a certain type of… Let’s call it experience. But your book pointed, and the new version of course also points to a different type of alienation, the alienation that’s experienced by not working when you can and perhaps should be working. So, how would you describe the type of alienation that Americans today experience from being nonworkers, even if they don’t even use the word alienation to describe the experience? Dr. Nicholas Eberstadt: Well, I should confess that there was a time when I would’ve called myself a Marxist- Sam Gregg: I never knew that. Dr. Nicholas Eberstadt: … but I knew I’m kind of bilingual because of that, so I’m not going to give you a whole thing about the labor versus labor power, the consequences of Marxian alienation here. I think we’re kind of talking more about Émile Durkheim than Karl Marx in this particular circumstance. So, real…

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Reading the Hebrew Bible Oct 18, 2022

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Law & Liberty‘s editor Brian A. Smith welcomes philosopher and pastor James Bruce to the podcast to discuss Robert Alter’s magisterial translation of the Hebrew Bible and Bruce’s research on Christian faith, justice, and equality. Brian Smith: Hello and welcome to Liberty Law Talk. My name is Brian Smith, the editor of Law & Liberty. With me today is my friend Jay Bruce. He is a professor of philosophy at John Brown University, where he directs the University Center for Faith and Flourishing. He is also associate pastor of Covenant Church in Fayetteville, Arkansas, and the author of Rights in the Law, an exploration of the thought of Francis Turretin. He’s currently working on a second book on the links between Christianity, justice, and equality, which we’ll talk about a bit later. Jay, thanks for joining us. James Bruce: Thank you, Brian. Longtime listener, first-time caller. Brian Smith: Jay’s most recent piece for us, “The Godless Bible,” is an exploration of Robert Alter’s complete translation of the Hebrew Bible. Jay spent a long time on this piece for us, and this led me to wonder about his mental state. Many times during the project, he tells me he took about 20,000 words of notes, among other things. It also made me think about Alter’s general approach. People talk a lot about translation styles, literal versus more poetic and the like. Jay, how would you describe Alter’s approach to translating the Bible? Does he have a well-developed philosophy regarding biblical translation? James Bruce: In a phrase, it’s very good, commendable and, I think, ultimately, extremely persuasive. He wants the translation to sound like the lofty Hebrew prose and poetry it is. In each of the volumes, it’s three volumes, and in each volume, he actually recapitulates the themes of his translation philosophy. A major handle for me, in terms of understanding Alter, is that, to make a translation overly accessible, is actually to dumb it down and to step away from the text as it was written. For example, word choice. Rare words in Hebrew get rare English words in his translation. “Song of Songs,” chapter three, verse nine says, in the Alter translation, “A palanquin, did King Solomon make, from Lebanon wood.” I, of course, being so learned, had to look up. I had no idea what a palanquin was. Hopefully, his commentary does have the definition that a palanquin is what rabbinic literature understood the Hebrew word to mean. He says, “Or, perhaps less grandly, a sedan chair.” The point being that, if you try to make it too accessible, you actually don’t arrest people with the technical vocabulary that’s being used. We want an exalted style, it’s not Time magazine. Also, as I think you mentioned, it’s literal. This fits nicely with his desire to make the translation style be lofty. The word-for-word literal translation actually requires something of a reader. The Hebrew word for seed is often translated as a seed like you throw on the ground, or even descendants, or it can also mean semen. What Alter does though is he always keeps it seed, trusting that the reader has the requisite knowledge and expertise in order to discern the word’s use in its different context, just like in the Hebrew. I also can’t help but think that this makes the scriptures loftier, as they should be treated. That there’s a respect, a curiosity that interests us when we confront things that we don’t know. One last example on the word choice. In Ruth chapter four, Boaz has to confer with Ruth’s kinsman redeemer, who chooses not to redeem her. Of course, he’s a deplorable character. I love how Alter playfully translates Ruth chapter four, verse one, as, “Turn aside. Sit down here, so and so.” Translating the Hebrew that way to make you say, “This guy is not even worthy of recognition in the text.” He’s also very sensitive to syntax and in the way that the Hebrew is playful. In Job, he is just a master of artful translation. Job chapter eight, one of Job’s friends says, “For we are but yesterday unknowing, for our days are a shadow on Earth.” In the same passage, he’s deploring people who aren’t trusting in the Lord. He said that, “Whose faith is mere cobweb, a spider’s house his trust.” He is really sensitive to the rhythm and the internal rhyming structure of the Hebrew. His sensitivity to dialogue, Brian, absolutely is just a work of genius. Even when he’s commenting on various passages, he’s so careful to help you realize this is what you’d expect with Hebrew, this is what you get, and you’re supposed to feel the difference. He repeatedly says, throughout the Hebrew Bible, the first phrase or phrases that someone speaks is supposed to cause you to anticipate who that person is. It frames the person in a way I don’t think it does for me as an English reader. It means that, when he’s commenting on 2 Samuel, Chapter 11, when Bathsheba says to David, “I am pregnant,” Alter writes, “Astonishingly, these are the only words that Bathsheba speaks in this story.” Her big statement is, “I am pregnant.” Really arresting. I could keep on going, but that’s a flavor, I hope, for your audience, of just how magisterial and sensitive Alter is as a translator. Brian Smith: It sounds like he’s almost created the feeling one has when one enters a truly majestic piece of religious architecture. Your eyes are cast up to the Most High as you enter a cathedral or a really magnificent church. It sounds like something like that has been accomplished in this translation. James Bruce: That’s right. I can say that he goes for extremes, that when the language is lofty, it really is the cathedral. In Job, when Job’s adversary has a second dialogue with God, whereas before he talks about, “Hey, the Lord says, ‘Have you seen my servant Job? Et cetera, et cetera,'” in the second dialogue, the adversary picks up the pace and just says, “Skin for skin.” Alter is really good at the lofty, but he can also do the pungent as well, so it’s really impressive. Brian Smith: It’s really interesting. What did you find least compelling about this translation though? James Bruce: I do mention it in my review, the published review, that I think he’s right to translate the Tetragrammaton as LORD, in all capitals. Then, having made that move, he wants to make the reader feel the antiquity of the text, and so he says things like, “For hand upon Yah’s throne,” or “El, the God Lord.” I think that Yah, God, would abide. I don’t think that, when I said I’ll assume that the speaker’s intoxicated in my review, I was actually thinking, and I’m not trying to be blasphemous, but El Yah, sounds a lot like a cockney person saying, “Hell, yes.” His defense is that he wants to say, “I’m getting the antiquity of the text. I’m exposing the strangeness of it.” Having already made the decision not to try to transliterate the Tetragrammaton, and just keep it as Lord, I think that he shouldn’t have done that. That was clunky. Then, of course, I have my whole ABJ, anybody but Jesus, shtick. Which somebody, and probably it’s my fault if I didn’t make this efficiently clear, but I didn’t expect his translation to be Christian. What struck me about the translation, Brian, was the fact that there were passages like Ezekiel chapter two, verse one, where the text says, “Son of man, stand on your feet and I shall speak with you.” Alter translates it, “Man, stand on your feet.” He says that he avoids the translation, because the term son of man has Christological Jesus connotations. I actually think that he should have stuck to his guns and his methodology and done word for word, trusted the reader. From my perspective, he should have said, “I’m going to trust the reader to come to his or her own conclusions about the text as it stands, as opposed to glossing over that.” There is one instance where… I’ll finish here. I don’t mean to ramble on, but I do it well. There are instances where, very few, where he just, I think, contradicts himself. Perhaps for polemical purposes, but I wouldn’t want to impune a motive to him. In Ruth chapter one, when Ruth says to Naomi, “Your people is my people and your God is my God,” Alter places God in lowercase. He says that one shouldn’t imagine that Ruth has become a theological monotheist. That’s his commentary on Ruth chapter one. Then in his introduction to Ezra and Nehemiah, he actually talks about Ruth, who naturally accepts the God of her new home, capital G, God of her new home. There, I think, he just has a different polemical purpose. There are instances where you’ve got to decide if it’s volume three, page 804, and you’re a run-up to Ezra and Nehemiah, it sounds like she believes in capital G God and is a monotheist. Then let that reflect in Ruth chapter one, or vice versa. Brian Smith: Is this just a confusion that comes from what you call his, at one point in the review, the embrace of the God of Baruch Spinoza? James Bruce: Yeah. It could be. I’d hate to have me read me for consistency. I think it would be a horrible experience. Multi-decade life adventure, this grand achievement. I, of course, am consuming it all at once. Well, over three years. Not all at once, but over three years. I think that there could be instances of getting to a new book and looking at Ezra and Nehemiah and having Ruth in your rearview mirror. I do think that it was most helpful to me to understand him as thinking that the water could ripple with spirituality, but not the God of Abraham, Isaac, and Jacob. Brian Smith: There’s also this sense that, I think, is coming through with what you’re saying, and certainly, what you wrote in the review, that Alter seems to approach each individual book of the Hebrew Bible as a separate text, which is quite different, I think, than both any rabbinical commentators and the way, of course, Christians would undertake a reading of this. James Bruce: Yes. That actually exactly correct. It almost became comical. Because, if the author or authors leaned in a Spinozistic direction, then Alter’s heart strangely warmed to the text. I knew that the Job poet was just going to be a genius, before I even began reading anything that he wrote about Job. Then there are other books that, like Ezekiel. He hates Ezekiel. The animus is on the page. I do think that’s an issue. Yet, there are times when Alter is incredibly sensitive, even though I don’t think that he would be sympathetic. He’s nevertheless sensitive. It took me so long to review the books, that my title ended up being different. My initial working title, I don’t think I’ve told you this, Brian, was “Reading the Bible in the Time of the Coronavirus.” Because, Alter offers this comment on a passage in Leviticus. I think I teared up, because he said, “This passage, it’s hard to understand what exactly is going on, but I think that this is… It’s, ‘Cover his mustache,’ or something.” He says, “I think that people are draping cloths and creating, basically, these face masks.” He’s so sensitive. I got a little teary-eyed. Because, of course, we’ve been in face masks forever. Just the beauty of it, that some things don’t change. Some guy has got a crazy cough, don’t let him cough on people. There were definite instances. Then also Proverbs, which he doesn’t particularly like. He’s really good at translating the Proverbs, so I have to give him a lot of credit there. Brian Smith: Tell me more about this he doesn’t like the Proverbs bit, because this is interesting. In that, I feel like, if you ask a random person, what is my go-to passage when I need to grapple with human concerns, a lot of people, Christian and Jew, are going to open up to Proverbs. What is his animus there? James Bruce: This is too glib, but what’s comforting to many people is exacerbating to Alter. What’s comforting to many people is the message of do good and the Lord will bless you. Times are tough, but soldier on and trust in the Lord. Lean not on your own understanding. In all your ways acknowledge Him, and He will guide your path. He’ll make your path straight. This is very comforting to people. I think, for Alter, it’s cheap, moral platitudes that gloss over the harsh realities of life. For that reason, so I think the very reason why it’s comforting to many is to him disingenuous. Brian Smith: That’s a nice segue though into… Let me stop you, because I think this will lead well into what I definitely wanted to bring us to talk about. Which is, you mentioned Proverbs 29:2, “When the righteous are many, a people rejoices, but when the wicked man rules, a people groans.” You say that he ignores this passage, that he thinks it simply platitudinous. As you mentioned, this was a really important passage for the American founders. You mentioned that Dreisbach has an entire chapter in his book on this. Is it just another case of this is a platitudinous proverb, or does he have some additional explanation of that point? James Bruce: Not really. He just said, “This proverb, like the next one and several others in this chapter, is no more than a formulation and verse of a platitude.” I think that Dreisbach, in Reading the Bible With the Founding Fathers, he devotes a whole chapter to it. I think that people need to be reminded that there’s a character of a nation that can bring happiness. That individual liberty and individual virtue brought together in community can cause a people to flourish. Oliver O’Donovan talks about Augustine’s redefinition of a Republic, from the Ciceronian definition, that Augustine and O’Donovan’s words says that a Res Publica, a Republic, is defined by their common objects of love. I think Proverbs 29:2 says, “If your common objects are love of love, are the good, the true and the beautiful, then life is going to be, in the midst of all sorts of hardships, the people will rejoice.” It also is an important caveat to that, which is that a wicked man can really ruin a nation. That wickedness can… Just a handful of wicked people. I think that on the cusp of the American Revolution, with the founding fathers thinking about, in their mind, being delivered from a tyrant, that they were groaning under the tyrant. Then also, at the same time, the people don’t get off the hook by repelling the wicked man ruling over them. They have to do the hard work of living a righteous and holy life, so that there can be true flourishing for the community. Brian Smith: This makes me wonder if this is partly a product of Alter’s treating each individual text completely separately. Because, if you think about, God, make us other people, give us kings, versus judges, who are often likened to Republican magistrates, there’s a lesson there for why a passage like this one from Proverbs is so important. I’m a little surprised at incongruousness of these two things. James Bruce: Yeah. Alter has the best, let’s see if I can quote it verbatim, the ad hoc military leader is his definition of a judge. I think that’s the best definition of a judge that I can come up with. Yeah. I think that in for Samuel get this concern about kings and that they’re going to do all these horrible things. What we see is, they do all these horrible things. The people… I just like it, because Proverbs 29:2, you’ve got somebody to blame the wicked man, but that doesn’t get you off the hook for being unhappy. Brian Smith: Or having a lack of virtue. James Bruce: Yeah, exactly. No, that’s right. Again, I just to emphasize that two quick points. Number one, you’re right, that he is going to see Proverbs as this collection of moralizing things will work out sentences, over and against what, I think, he would say is the really interesting stuff of Job and Koheleth, which is Ecclesiastes, and that sort of thing. Then number two, just to emphasize, again, that though he doesn’t seem to have a lot of emotional or mental energy for the substance of the Proverbs, he’s a masterful translator of Proverbs. Because, he really, again, to go back to the first question about translation st…

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Markets in America Oct 18, 2022

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Law & Liberty‘s editor Brian A. Smith talks with Samuel Gregg, about his new book The Next American Economy. Brian Smith: Welcome to Liberty Law Talk. I’m the editor of Law & Liberty, Brian Smith. Joining me today is my friend Samuel Gregg. Sam is a Distinguished Fellow in Political Economy and Senior Research Faculty at the American Institute for Economic Research, as well as a contributing editor for Law & Liberty. He’s the author of numerous books, including the subject of our discussion today, and has just released The Next American Economy: Nation, State, and Markets in an Uncertain World. Thank you for joining me, Sam. Samuel Gregg: Brian, it’s always good to be with you, and good to be on the other end of the podcast. Brian Smith: Yeah, I thought you might enjoy that. So longtime Law & Liberty readers might already know the answer to this question, but I wanted you to talk some about what led you to write this book. Samuel Gregg: Well, as the title suggests, The Next American Economy: Nation, States, and Markets in an Uncertain World, America is very much at a crossroads right now when it comes to its future economic direction. We have a choice, I think, really between what on one hand I call a type of state capitalism, which is essentially extensive government intervention in the economy via protectionism, industrial policy, et cetera; or, we have a choice of moving in a free market direction. And by free market, I mean more than just markets. I mean all the institutional and cultural underpinnings of that type of economic system, which I think has assumed a particular form in the United States. So there’s that big choice, I think, that is increasingly laying before us. At the same time, as you know, there are many debates about this that are occurring on the left and on the right, and between the left and the right. Traditionally in much of American politics, these debates have fallen more or less along left/right lines. But one of the interesting things about this particular debate is most of the heat and lies about this debate that is occurring is occurring on the right, which is an interesting phenomenon, because at least since the 1980s, up until I would say around about the mid 2000s, the right in America was more or less behind the case for free markets. Now that is no longer the case. On the right you have people like myself. We very much believe in the case for markets and why they’re important; not just economically, but politically and culturally for the United States. And then you have others who are arguing in favor of using a very big state to intervene in the economy and specific sectors of the economy to try and deliver economic outcomes that would be different than what would otherwise be delivered by markets. The wider context of all this is that these economic debates are occurring in a context in which it’s not the 1980s anymore. We’re living in a very different set of geopolitical and domestic political arrangements. Those of us who believe in markets and those who read the book will discover that while I recognize some of the problems that people on the other side of this debate are pointing to, I think their diagnoses are often wrong, and I think certainly their solutions are very wrong. It’s very clear to me that those of us on the free market side cannot talk and act and think as if we are living in the 1980s. So much has changed since then and up until now. The free marketers don’t adjust the way they argue, not so much the content, but the way they argue, and the narrative they present their arguments for markets in will lose this very important debate, and I think America will be worse off for it. So that’s why I wrote the book. The first part is really trying to set the political scene, then go on and explain why protectionism and industrial policy, but also this phenomena of stakeholder capitalism, which we’ll probably say more about later, why these are very bad alternatives for America. Then I try and outline what I call a creative nation, a competitive nation, and a nation that’s a trading nation as the alternative. But again, wrapped up in a particular narrative that I think goes back to the American founding in the American experiment, because if these arguments are not made in this type of way with this type of context and with that narrative, the case for markets will increasingly lack legitimacy in the United States. So it’s not just a series of economic problems we’re dealing with; we’re dealing with some serious political challenges as well. Brian Smith: So speaking of politics. I mean, I agree with you completely that all of the really interesting stuff being said right now is on the right about this, but what I’d like to hear is your story of how conservatives got here, conservatives here understood as national conservatives. Where did that movement and its associated industrial policy advocacy come from? And what do you think the best case on their side is? Clearly, you disagree with it, but one of the things I thought was interesting about the book is how you tried to unfold some of the ways they fell into this position. So why don’t you tell our listeners about that and sort of unfold this narrative. Where do you think this came from? Samuel Gregg: One of the things I’ve tried to do is to give as fair a case to the other side as possible because I don’t like producing straw men and tearing them down, because frankly, that’s what the other side do on these topics for the most part. But what I think if one is going to give the best sort of analysis of how this happened, how we saw so much of the right move in the direction of economic interventionism, I think it goes back to, first of all, the 1990s when we saw people like Pat Buchanan come to the fore and start arguing that free trade and trade liberalization had had deleterious social effects upon the United States. Many of the arguments we’re hearing today were made by people by Buchanan in the 1990s. And remember, he ended up basically derailing George H. W. Bush’s hopes of a second presidential term. So there was a sense within much of the country, particularly on the right. Many people started to view markets and economic globalization as not being in America’s long-term interest. So that’s one background. Another background, which is an even deeper background, is that trade issues have been part of American political debate right from the very beginning of the republic. I think we often forget that. But in the 19th century, slavery of course was the biggest political dividing point in the American body politic, but tariffs and trade policy came a close second after that. Differences about trade policy split North and South. It split parts of the North, parts of the West, parts of the East. It was one of these dividing points that split the country regionally, sometimes even within particular states, and even within the major political groupings that crisscrossed the country. So in many respects, we are going through the same types of debates that we’ve had in America for a very long time, and that precede Pat Buchanan and his outbreak, if you like, of economic nationalism in the 1990s. Fast forward a few years, and what do we find? Well, I think if one is going to look for a breaking point, for many people on the right when it comes to the case for markets, it’s the same breaking point that affected a lot of other Americans, and that was the 2008 financial crisis. Now, I could give you lots of reasons here why I think that crisis had far less to do with the private sector and far more to do with bad regulation, regulations that incentivized people to behave badly, excessively low-interest rates from the Fed for too long, the government essentially having a type of pseudo monopoly of the housing market, et cetera, et cetera. We could go through all that, but unfortunately, that doesn’t matter. Brian Smith: Because they’re government failures. Samuel Gregg: They’re government failures, but the problem is that the narrative that, one, was that this was a crisis of capitalism, of American capitalism, that there was something fundamentally wrong with the economic system that many people identify as being quintessentially American. In fact, we know that people in powerful positions in China watch this crisis very closely, and they concluded that the capitalist model was flawed in some fundamental ways and that China needed to avoid some of these problems, which is precisely when China started moving away from what had been a relatively limited economic liberalization, much more back in the direction of a state-centric economy, which is more or less, I think, what modern China is now today. So that, of course, I think the financial crisis really shattered a lot of people’s confidence in the long-term benefits of markets. Many conservatives looked around and said, “Well, we need to rethink the role of the state in the economy. And we’re also not sure whether economic globalization has been as beneficial as people had hitherto supposed for the United States. There must be other ways.” When you add to that a good number of conservatives concluding that the administrative state is here; we haven’t really done much to take it down. Maybe it’s time we should start using it for pursuing what we believe is in America’s best economic interests, and that means using state power to try and achieve that, which I happen to think is more or less moving in the direction of how progressives think about America and the role of the state, et cetera. Brian Smith: Which explains things like Compact Magazine in some ways. Samuel Gregg: It explains many things. It explains the shift away from markets that you see on the part of a good number of hitherto market-friendly magazines. You mentioned Compact, which of course is a new magazine, but you can look at others such as First Things for example, which now I think it’s fair to say takes a more skeptical view of the role of markets. Another thing which I think is also driving some of this is that America clearly has some serious social and cultural problems, whether it’s drug addiction; whether it’s things like young men who won’t work, don’t want to work and won’t work; whether it’s things like declining birth rates; whether it’s concerns about the implications of immigration for national sovereignty, et cetera, et cetera. All those social and cultural problems, and some of them are actually real problems. The fact that young men are not working is a real problem. The levels of drug addiction, levels of family breakdown, these are real problems. There’s no doubt about that. But many conservatives have apparently concluded that the causes of these problems are primarily economic. They often associate these things, for example, with trade liberalization, which they would argue has emptied out manufacturing and created rust belts, et cetera. And I happen to think that’s all false, but that’s the narrative that has established itself on large parts of the right and parts of the left as well. Many people on the right have concluded that this is primarily an economically caused problem, and therefore we need to use the state to engineer economic solutions that will fix these problems. Now again, I happen to think that that’s a highly economistic explanation of these problems. I think the economy has relatively little to do with these things and much more to do with the social and cultural changes that flowed from the 1960s, as well as things like the disaster otherwise known as Lyndon Johnson’s Great Society programs. Brian Smith: Yes. Samuel Gregg: So the idea that the state can fix these problems through raising tariffs or introducing industrial policy strikes me as fanciful. But nonetheless, these social problems, I think, are what are driving many conservatives in this type of direction. The last thing I’ll say about all this is that I think free marketers’ responses to many of these questions has been inadequate. What do I mean by that? I mean that the response of free marketers has been to focus heavily on the economic problems associated with the economic arguments being made by people on the right who want protectionism and want industrial policy. Free marketers have gone very hard, and I go very hard at them as well, about they don’t understand trade, they don’t understand basic elements of things like comparative advantage, trade-offs, the damage that protectionism does to an economy. They either don’t know or they ignore the very real systematic and epistemological problems with something like industrial policy. And that’s all fine, and that all needs to be said, but if free marketers are basically saying, “Look, these other things don’t work. They’re inefficient. And what we have to offer you is efficiency and effectiveness,” well, that’s fine, but that’s not a compelling narrative at a time in which politics heavily revolves around questions of identity. Who am I? Brian Smith: Correct. Samuel Gregg: What community do I belong to? What is my nation? Who is my tribe? Et cetera. If free marketers don’t understand that they need to move their arguments so that they invest them with a narrative that is cognizant of just how much the center of debate has shifted, then they lose. No matter how good the economics arguments are, if you don’t have a compelling narrative that goes beyond the economy and touches upon things that Americans care about, you lose. And that’s one of the things I spend a lot of time in the book trying to do, is to show, look, free marketers have to be very clear that they love America. That you can be in favor of free trade because you love America. And you have to disassociate yourself from the likes of Klaus Schwab and the World Economic Forum who don’t care about America. You have to be very careful in how you make your arguments. You shouldn’t go around claiming that free trade automatically brings peace and harmony in its wake. That’s not true. Adam Smith, by the way, didn’t believe that was true. Neither did David Hume. So in other words, free markets- Brian Smith: Or Alexander Hamilton. Samuel Gregg: … well, lots of these people really didn’t believe that. Smith is very clear about this, that free trade does not necessarily lead to greater harmony between nations. I think free marketers made a mistake when they started rolling that argument out in the 1990s and early 2000s. George W. Bush used this argument. Bill Clinton used this argument. And to many people it was compelling at the time. It also fit this wider narrative of Francis Fukuyama’s End of History and the Last Man. So we’re all at the end of history; markets and liberal democracy for everyone. This is inevitable. Well, nothing, my friend, is inevitable. And that is another thing. Brian Smith: Right. But the other thing which I think you picked up on in this book, which is really fascinating, is the degree to which if you began taking political economy or globalization politics courses in the early 2000s, it was almost spiritual. This understanding that the world was moving in the correct direction because of these free markets, which invariably were defended solely on these utilitarian grounds. I think you’re absolutely right to suggest that it is a persuasive failure on the free markets balance sheet that we have not developed arguments that point out these alignments between trade and a strong… Samuel Gregg: America. Brian Smith: Yeah, basically it’s failed to identify trade with American excellence. It’s failed to show the ways in which, or create compelling arguments in which morally, trade is the right way to go. It seems that we’re in want of great moral arguments for trade in this respect. This is not a morality of why trade is good; you’ve done that in other books. But it does do this incredibly important element of persuading people why trade and A…

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Aquinas's Common Good Sep 16, 2022

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Welcome to Liberty Law Talk. This podcast is a production of the online journal Law & Liberty and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening. James M. Patterson Hello and welcome to Liberty Law Talk, a podcast presented by Law & Liberty and supported by The Liberty Fund. My name is James M. Patterson, and I’m an associate professor and chair of the politics department at Ave Maria University, a research fellow at The Center for Religion Culture and Democracy, President of the Ciceronian Society, and faculty affiliate of The Jack Miller Center. Today, our guest is William McCormick. He is a contributing editor at America Magazine, a visiting assistant professor at St. Louis University in the departments of political science and philosophy. He is a Jesuit scholastic or seminarian of the Central and Southern Province of the United States. He studied politics at Chicago and Texas, and has published in History of Political Thought, The European Journal of Political Theory, and the American Journal of Political Science. We will be discussing his recently published book on Catholic University of America Press, The Christian Structure of Politics: On the De Regno of Thomas Aquinas. Bill, welcome to Liberty Law Talk. William McCormick Thank you so much for having me. I’m looking forward to this conversation. James M. Patterson Outstanding. Well, you know this is quite an impressive book. I was very fortunate to have read it, and I want to start off by asking you to tell us a little bit about who Thomas Aquinas was. From what I remember, he was described as corpulent, but there may have been a few other things about him that may be worth discussing besides the polite way of saying that he maybe had a little too much cheesecake. William McCormick I certainly hope so, or else my book wouldn’t have much to offer. Thomas Aquinas was a 13th Century Italian priest and theologian and Dominican, and he was one of the greatest theological lights of his time. And for centuries thereafter, he was regarded as an important name and influence in theology and philosophy in the Catholic church. But certainly, often more in spirit than letter. Often he was invoked as an authority and not studied very seriously. So, the 19th and 20th, and now 21st Century, it’s been a really great pleasure to see a renewal of interest in his work, and especially the actual texts of his work as opposed to through the manuals and commentaries. Lot of wonderful commentaries written about him, a lot of wonderful manuals written about him, but to get back to the primary sources, this has been, yeah, just one of the fantastic intellectual achievements of Catholicism since the mid 19th Century, and Aquinas still has a lot to teach us today. James M. Patterson So, one of the interpretive devices you bring to thinking about Aquinas is the Augustinian, the Aristotelian and the Ciceronian. And I really like these three, but explain what they have to do in particular with De Regno, which is a bit of a curious work in Aquinas’ repertoire. William McCormick Well, I’m in the presence of someone who knows a great deal more about Cicero than do I, so I tread lightly, but I think one of the central puzzles of political philosophy, and one certainly to which Catholics have attended carefully is what does it mean for the human person to be naturally political? And in what sense does political community fulfill critical ends of the human person, in what way are human beings made whole, excellent, good, through political community? And some of the greatest thinkers in politics have addressed themselves to that question in one way or another. And of course, we, I think, probably most familiar with the idea from Aristotle that human beings are naturally political, and that to be most fully human, they need to live in human community. And that’s how you develop the virtues, the different facets of human excellence that make us so good. And that Aristotelian idea is indeed in, I was going to say in my own book, it’s indeed in Aquinas’ texts, more importantly. And I think that from a Christian perspective, the challenge, of course, is that… or, one challenge, is that because of the fall and the tendency of human beings to sin, it sometimes can seem that actually political community exists more as a corrective to fallen human nature. It might be even a punishment for fallen human nature, and that’s one interpretation often offered of the great thinker, theologian, and bishop Saint Augustine of Hippo that he was proposing politics as primarily a remedy against political community, primarily as a corrective to sin. It’s hard to pin him down on that, and I’m not so inclined to think that he’s so… Augustine was an Augustinian, but it’s certainly there. It’s certainly there to be had, and there’s no question. And Aristotle recognizes this, too, that political community often has to restrain the wicked, as you might say. That there are people who are vicious, and many people, whether they are generally good or not who could do bad things. And political community has to restrain those kinds of crimes. Cicero has an ambiguous role in this conversation, and it’s in the work of the great medieval historian of political thought, Cary Nederman, that we really see Cicero come to play. In De Regno, he suggests that Cicero is a via media between Aristotle and Augustine, and there are indeed places in Aquinas’ work where you might think yeah, I think that’s true. I think it’s true that there’s something Ciceronian going on in this work. And it matters for a number of reasons, but the first one is that some people get frustrated with the political thought of medieval and ancient thinkers because modern thinkers might think that this political thought is just too metaphysical, that it just presupposes that these structures and institutions just sprout out of human nature. But all of these thinkers know that politics is very hard work, and it’s not magic, and indeed the attainment of virtue is an act of perseverance for a person and for a community day in and day out. And part of what Cicero is emphasizing, or what you might think he’s emphasizing for Aquinas, is that yes human beings are naturally political and authority is really important. That the development of healthy forms of authority in a community are an achievement. They’re not simply something that you can take for granted. There’s a lot more I could say about that, but I think I’ve said quite a bit already, so… James M. Patterson So, one thing that’s part of this tripartite interpretive device, from what I understand you’re saying is that the readings of Augustine, Aristotle, and Cicero are a little schematic, right? They’re not quite fair to the authors themselves, but useful for organizing our understanding of what Aquinas is doing. And also, one of the things that is part of your reading of De Regno is that only one of these figures is actually a Christian, and this corresponds to the fact that much of the political regime that Aquinas talks about is rooted in our understanding of nature, and not necessarily of grace or revelation. But, we’ll leave that to the side just for a second, because one of the things I think people overlook about De Regno is that it is not like a lot of other things that Aquinas writes. And this has an impact on the way Aquinas writes this book, that I think people tend to misunderstand. For example, Aquinas seems to be very pro-monarchy in De Regno. Was he a monarchist, and if so, what do we make of what he has to say about the mixed regime being the best regime in The Summa? William McCormick Those are fundamental questions. Because Aquinas is writing for a royal audience, we expect him to have positive things to say about monarchy. Not in the sense that he’s committing flattery or lying, but in the sense that I think he’s going to want to take seriously the advantages of the regime to which he’s responding. There’s no question that for much of human history, monarchy was the primary form of politics, the primary regime form in many places. In times and places in Christendom, monarchy was uncritically accepted in the way that many people today would uncritically accept democracy. And that’s really important to say. I think it’s safe to say that in De Regno, as well as in The Summa that Aquinas first and foremost is going to want to affirm the legitimacy of a variety of regime forms. And this is something that you have to keep hammering home to a modern audience that actually there are many different forms of legitimate government. There might be a best one, but the best one might not always be the one that’s most practical. As you know, as well as I do, that Aristotle and Cicero too, and Plato, in their own ways spent a lot of time asking what kind of regime forms are good for different kinds of countries and regimes? So, today we would just say, oh, democracy is the best for every country, end of story. But, you might think that given the varied fortunes of democracy today and certainly since ’45, even if you loved democracy, you might say, “Yeah, there are places where it works and places where it’s more aspirational.” So, I think it’s fair to say, I think you can argue that Aristotle sees really good aspects to monarchy and nevertheless, the mixed regime is much more plausible and much more effective for most settings. Also, bearing in mind that I think for Aquinas, the distance between monarchy and the mixed regime is not as great as it is for us, because he’s not talking about the absolutist monarchies of the 17th and 18th centuries, which could never have existed without the… well, for one thing, without the nation-state, and without the absolutism that went with the post-reformation dispensation. So, he’s talking about monarchies that are heavily constrained, conditioned, and formed by other social bodies, and by norms and unwritten constitutions and in some cases different ethnic and tribal groups. These are not absolutist monarchies. So, there is a distinction for him between a monarchy and the mixed regime, but it’s not as great as I think for him, as it is for us. James M. Patterson So, there’s a sense in which Aquinas is not really recommending a sacral kingship. You talk about towards the end of the book where that the person responsible for the political operation of a monarchy has their authority directly ordered from God, and therefore cannot be questioned by any institutions beneath that order, right? That’s not the kind of monarchy that Aquinas is contemplating? William McCormick No, there is no whiff of divine right monarchy here. Certainly monarchy and all political form is blessed by God and can be blessed and supported by the church, but you don’t need revelation to know what good governance looks like at its most fundamental levels. And that’s why I think why it’s so important that Aquinas has so much use for non-Christian thinkers. Again, he’s not a Baroque Era, or Romantic Era thinker who thinks Christianity turned everything upside down. In fact, that’s why I can’t recommend enough the work of my mentor, the late great Jim Shaw, who was constantly asking, “What does Christianity have to say to politics?” And he would often put this in provocative ways like, “Read the New Testament, read the gospels. How much politics is there? How many times did Jesus call for the overthrowing of regimes?” In some ways, you can say Christianity is a lot less obviously political than Islam and Judaism, although I’m not an expert in either of those, so I don’t claim to have much more to say about it than that. I leave that to Remi Brague and others. But I think it is fair to say that yeah, at the very least I’ll just say there’s no divine right monarchy here. James M. Patterson Yeah, I think that’s right. William McCormick Stop where I started. James M. Patterson Yeah. That’s right. So, another thing that is an odd contradiction in De Regno is that he’s not a fan of tyrannicide in De Regno, but in the earlier, very young Aquinas and the Commentary on the Sentences seems to favor it. And we’ve already gotten a hint of why you would want not to endorse tyrannicide given that De Regno is written for a king. You don’t necessarily want to sign his death warrant when writing him something. But then again, the reason why that’s interesting is because as you really stress in the book, Aquinas is very interested in describing tyranny. Why on earth would you even talk about that to a king? William McCormick It is a really surprising topic to bring up, as you say. And again, it’s another place where genre is so important. This isn’t a treatise. It is a letter written to a king, a specula principum, A Mirror of Princes. And so, to bring up such a delicate issue to a royal reader would seem to be… well, anyway, surprising. It’s incredible too, that Aquinas distinguishes between mild and excessive tyranny in the work, and he suggests that mild tyranny is not altogether uncommon and it’s reformable. So, apparently taking from Aristotle’s discussion of politics, in the Politics, he says one of the ways to preserve a tyranny is actually to convert it into a just regime, is to divert it back to the proper ends of politics. And I think part of the emphasis, there’s so many reasons why he brings up tyranny, but I think part of what he wants to emphasize throughout this work is something that’s pretty boring, that would never make any newspaper headlines, would never get you a journal article, and that’s that politics is really hard work. It is very hard work, and the day in and the day out are far less attractive than the glory, the riches, the Twitter fandom of politics today, or 800 years ago. But that’s what he’s asking the king to turn his attention to, the daily work of politics. And so, there’s a way in which Aquinas wants to comfort the king to say it’s very difficult, and you will fail frequently, and he wants to confront arrogant, proud political elites with their frailty and their limitations. And he wants to do so, I think, in careful ways, but I think he also needs to make that clear. There’s also a really fun implication of all of this, which is that if politics is really hard work, then in stagecraft is a difficult task to which kings can only barely pretend to have any competence in, then how much less can the king claim power over the church? How much more ridiculous is the notion of civil religion? And we see later in De Regno that that’s exactly where Aquinas takes that line of thought. But yeah, if politics is really hard work, and I don’t think you can say that enough, because in most times and most places, I do think leaders rather avoid leading and would rather… well, whatever their generation’s equivalent to Twitter is, that’s what they would want to do. James M. Patterson Joust, I don’t know. William McCormick Well, that’s… yeah. Games, bread, and circuses. That, yeah. James M. Patterson Yeah. So, what is the role of the common good here? That seems to be very vital to the distinction between a monarchy or a good government by the one, and tyranny, which is the evil government of the one. And its significance I guess can’t be overstated considering that tyranny is the worst regime. Most cases, I think you say that at some points, Aquinas maybe contemplates oligarchy might, but we’ll wait for that answer, I guess. What is the role of the common good here? William McCormick Well, the common good is everything. I mean, the common good obviously as you know probably better than I do, is a multivalent term, and certainly what Aquinas is trying to point to in part of the common good is that the common good just is the actualization of the being, the perfection of the citizens in their harmony, in their proper orientation. And the common good isn’t just a set of conditions that allows each person to flourish in his or her own ways. It’s…

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Adam Smith's Jurisprudence Aug 26, 2022

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Samuel Gregg: Hello. Welcome to Liberty Law Talk. My name is Sam Gregg and I am distinguished fellow in political economy at the American Institute for Economic Research, and I’m also contributing editor at Law & Liberty. Thanks for joining us today. 260 years ago in 1762, a middle-aged professor at the University of Glasgow was delivering as part of his normal teaching load you might say a series of lectures on jurisprudence. And in that audience a number of students were busy taking notes as any good student, I suppose, does even today. One set of those notes, however, was discovered in 1895. So over 130 years later. And it had come into the hands of an Edinburgh lawyer. Now, normally discovery of this type would be neither here nor there, except for the fact that these notes were from lectures delivered by Adam Smith, the great Scottish enlightenment thinker whose Wealth of Nations was a book that literally changed the world. That book, as well as Smith’s other writings including the book we’re going to be discussing today, Adam Smith’s lectures on jurisprudence, have all been published by Liberty Fund. And I think it’s fair to say that lectures on jurisprudence is perhaps the least known of Smith’s words that have come down to us today. So joining me to discuss lectures on jurisprudence, it’s my great pleasure to welcome to Liberty Law Talk today professor James T. Otteson. He is the John T. Ryan Jr. professor in business ethics at the Mendoza College of Business at the University of Notre Dame. He specializes in business ethics, political economy, history of economic thought, and 18th-century Moral Philosophy. Previously professor Otteson taught at Wake Forest University, Yeshiva University, Georgetown University, and the University of Alabama. Some of his books include Adam Smith’s Marketplace of Life, 2002. Actual Ethics, 2006. Adam Smith, 2013. The End of Socialism, 2014. And The Essential Adam Smith, 2018. And his forthcoming book, Reexamining The Ethics of Wealth Distribution. He has a BA from Notre Dame and he also has a Ph.D. from the University of Chicago. He’s also, in my view, my humble opinion, perhaps one of the world’s leading Adam Smith scholars today. Today he’s joining me to discuss, as you may have guessed from his bio, Adam Smith and, more specifically, some of his writings that have received less attention—in particular Smith’s lectures on jurisprudence. Jim, welcome to the Liberty Law Talk. James Otteson: Thank you so much, Sam. It’s my pleasure to be with you. Thank you for having me. Samuel Gregg: So I thought we might begin by putting these lectures of Adam Smith in their context. So, can you tell us a little bit about how it was that Adam Smith came to be giving lectures on legal philosophy in the 1760s? James Otteson: I’m happy to do that and you’re quite right. The lectures on jurisprudence are not something that get discussed very much anymore. So Adam Smith was the author of two published books, only two. The first was The Theory of Moral Sentiments, which came out in 1759 in the first edition, and then the now much more famous inquiry into the nature and causes of The Wealth of Nations, which came out in 1776. So rather auspicious year. But those were the only two books that he actually published. They each went through several editions. He was born in 1723. He died in 1790. About a week before he died, he called a couple of his colleagues to his quarters. I guess he had a bit of a notion that it wouldn’t be much longer that he would be alive. He asked them to burn his manuscripts, and so those colleagues actually burned 16 volumes of manuscripts. We can only guess what was in them, but one set of documents that was probably in those burned manuscripts was what we now have as the lectures on jurisprudence. So these lecture notes, as you mentioned, were first discovered in 1895; they were the student notes from two different years that he had given this course called lectures on jurisprudence. He was teaching jurisprudence at the University of Glasgow. He first started at the University of Glasgow in 1751 as a professor. He was only 28 years old. In 1752 after just one year, the prior professor who had been the Chair of Moral Philosophy at Glasgow passed away and so Smith became the Chair of Moral Philosophy at the University of Glasgow in 1752. He was only 29 years old if you can imagine. And he began giving, among other things, these lectures on jurisprudence and that’s what we have. Samuel Gregg: So tell us a little bit about how Smith saw jurisprudence fitting into the wider scheme of university education that he was engaged in teaching. James Otteson: Yeah. So as a Chair of Moral Philosophy, so something to note about professorships in the 18th century in Britain and in Scotland in particular, people were considered professors of one of two things. Either you are a professor of moral philosophy or you’re a professor of natural philosophy. So natural philosophy was all of the subjects that related to the natural world, the non-human natural world. So everything from astronomy to what we would now, now that it has been subsequently broken up into disciplines like geology and botany and all these other fields that study the natural world. That was under natural philosophy. And then moral philosophy, which is what Smith was, that was a field that pertained to all of the aspects of the study of human behavior. So everything we would today recognize as being in psychology, in human history, in politics, and also in moral philosophy. And all of those were fields that Smith was teaching in. So as the Chair of Moral Philosophy in Glasgow, he was teaching a range of courses—everything from logic to natural theology to moral philosophy and then to jurisprudence, which was, at the time and what Smith considered it, he study of the laws and regulations that were required essentially for a successful society. So when Smith was giving lectures on jurisprudence what he was effectively doing is giving kind of two parts of it. One was the history of the development of human societies. So he gave his theory about why you had different kinds of governments and different kinds of laws and regulations in different humans societies. And then also he was making recommendations about, given the kinds of goals that we might have in human society, what kinds of laws, regulations, et cetera, should we have? All of that fell under the topic of jurisprudence as one part of the study of human life and human behavior. Samuel Gregg: So clearly jurisprudence in the way it was taught, in the way it was understood in the 18th-century, particularly in the Scottish universities at the time, it clearly embraced a lot more than would typically be put under that type of topic today. So can you tell us something about the actual structure of Smith’s lectures on jurisprudence? James Otteson: Yeah. So it was a year long course that typically met every single day. So you would meet once a day for nearly a full calendar year. So it was quite a bit of material. It wasn’t just a three month long course, which you would get in college today, but the structure of it started out with what the subject matter of jurisprudence was and then began working out Smith’s theory as it were of jurisprudence. So everything having to do with, according to Smith anyway and Mr. Smith’s understanding, jurisprudence started with a conception of justice. What actually is justice? What are the different conceptions of justice? Then what are, he called police or what we might call policy today? So what are the rules or regulations or laws that are appropriate to the conceptions of justice? What are the proper objects of justice? Meaning what kinds of things should justice pay attention to and therefore what should the government pay attention to? But he also, in his course on jurisprudence, went into the area that we would now think of as more appropriate to economics or his Wealth of Nation’s book. He talked about revenue. So where did the government get its money? Where does wealth come from? So he talked about that as well. And then also, how do you protect the government and how do you protect society? So things like military and arms, et cetera. So it was quite a wide-ranging course, quite a wide ranging topic. And he went into enormous amount of detail, both historical—so, descriptive talking about how different times and different places approached these topics, and then also normative or prescriptive. What he thought we should actually have. What would be good for Scotland? What was good for Britain? What was good for Europe? What was good for even the Americas? He was talking about what was going on in the Americas at the time. Samuel Gregg: So, I’d like to come back a little later to talk about a few of those things that you just mentioned, in particular, some of the topics that get included under particular parts of his lectures on jurisprudence. But before we do that, I’ve got another question. I imagine that like any professor, there were things that Smith was obliged to teach if only because the people sitting in the class, many of them I suspect would’ve gone on to become practicing lawyers and practicing lawyers need to know certain things that have relatively little to do with the philosophical preferences or interests of a given lecturer. So you do something like contracts or torts or whatever it happens to be. And it’s like a sort of professional training, but that said, I imagine, just any other professor, there were particular emphasis that Smith would have brought to bear, or at least tried to bring into the discussion, during his lecturing. So I was wondering if you could tell us what some of those particular emphasis may have been. James Otteson: Yeah. You’re quite right about all of that. I mean, we do have one anecdote about Smith that I’ll just relate to give you a little bit of a glimpse of what seems to have been his personality. When he first started teaching at the University of Glasgow in 1751, he was asked to teach a course on logic. And one of his students, who reported many years later about what that course was like, noted that Smith began the course and spent about the first week or so of the course teaching what he was supposed to teach. And then he immediately started going off onto other subjects, which were much closer to what we might think of in the Wealth of Nations and the lectures on jurisprudence even in his logic course. Even as a young man, he was only 28 at the time, he had a bit of an independent streak, but you’re right. The course on jurisprudence was in part intended. It was supposed to prepare people for a profession in the law. So many future attorneys would’ve been in the audience. And one of the central subjects, I mean, there are lots of things that were supposed to have been covered, but one of the things, and I think this might be a particular interest and maybe is even behind the question you’re asking, one of the things that Smith would’ve been expected to talk about was natural law. So he would’ve been expected to review Locke and other major figures in the history of, especially British natural law theory and British common law as informed by British by natural law theory. And so in fact, he did do that. And one of the things that’s interesting about it. So he talked quite a bit about Locke and others. If we’re talking about what constitutes an injury, and there are different theories of justice, what constitutes an injury? Well you can be injured, as Smith said, as a human being, as a man, as a member of a family, as a member of a state. You can be injured in your body, in your property, in your reputation center. So he walks through these things all with this kind of background of a sort of Lockian natural law. One of the things that I think is interesting about this, though, is that if you look at the other works that Smith talked about, that wrote, The Theory of Moral Sentiments or the Wealth of Nations, almost all of that is absent. There’s virtually no talk of natural law, no talk of natural rights. So he did it, he discussed it in his lectures on jurisprudence. So he is obviously aware of the tradition, took it very seriously, but it did not come to inform much of his own theories. Samuel Gregg: Well that’s interesting as well because I was going to ask you about that and the way he talks about natural rights. And as you say, he does make reference to people like Locke. Although it’s not entirely clear that he accepts Locke’s own particular thesis, but like any professor, you have to teach things you don’t necessarily agree with because some of these ideas were taken very seriously by judges and lawyers at the time. But there’s two particular influences I’d like to, if indeed they are there, that I’d be interested in hearing you say more about, and that is the two H’s, David Hume and Francis Hutcheson. Do you have any sense of any particular influences of their thought upon these lectures? Smith suggests that if 20% of the revenue of society [is] being taken by taxation, then citizens should take a long, hard look at whether that’s really benefiting them and enabling the increase of prosperity, or is it just satisfying the needs of people in government. James Otteson: Yes. That’s a good question. I think both of them were quite influential on Smith’s thought. And they may help explain why it is that when Smith came to develop his own theories about justice and then ultimately about what we consider economics and the Wealth of Nations, that there’s not a lot of reliance on natural law or natural law theory. I think certainly with Hutcheson and also with Hume, Smith’s takes something of an empirical approach to these questions and he develops a theory, for example, of government. When he’s talking about the origins of government, he explicitly rejects in the lectures on jurisprudence Locke’s theory of a kind of original contract. Samuel Gregg: A sort of state of nature. James Otteson: Yeah. I mean, it wasn’t only Locke who had this view, but I think here you do see the influence of Hume in particular, but Smith says, now that this is just a fiction. There really wasn’t any original contract. There was nothing like an original contract. There was no state of nature when men came together and decided what the form of government should be. It’s much more of an evolutionary process. So one thing that he gets from Hume I think is something like a developmental process as human society developed through these stages. So he offers a theory of stages of human society; You begin with hunters. Human beings are basically hunting parties where there’s no government at all, according to Smith. They eventually develop into shepherds where they have their own herds of animals. At that point, they develop something of a root. That’s the first stage of actual government according to Smith. They develop something of a rude state of monarchy. Then they develop into farming and agriculture where they have land and property. At that point they need a little bit more sophisticated government that’s going to have conceptions of justice that apply to property in particular. And I think we see some influence from Hutcheson in the importance of property. The kind of government appropriate there Smith thinks is aristocracy. And then the fourth and final stage, according to Smith, of human, social, or societal development is what he calls democracy. This emerges when human society develops to the stage where commerce becomes the dominant economic activity of society. That’s the highest final stage. So at all of these stages, the applicable conceptions of justice and the right proper sets of laws and regulations or the proper form of government, changes according to human development as Smith argues. And that I think really is a very large influence of this kind of developmental…

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